THE
TREATY POWER
UNDEE THE
CONSTITUTION OF THE UNITED STATES.
COMMENTARIES
•
ON THE
TREATY CLAUSES OP THE CONSTITUTION; CONSTRUCTION OF TREATIES;
EXTENT OF TREATY-MAKING POWER ; CONFLICT BETWEEN TREATIES
AND ACTS OF CONGRESS, STATE CONSTITUTIONS AND STATUTES ;
INTERNATIONAL EXTRADITION; ACQUISITION OF TERRI-
TORY; AMBASSADORS, CONSULS AND FOREIGN JUDG-
MENTS; NATURALIZATION AND EXPATRIATION;
RESPONSIBILITY OF GOVERNMENT FOR MOB
VIOLENCE, AND CLAIMS AGAINST
GOVERNMENTS.
i
WITH APPENDICES CONTAINING
REGULATIONS OF DEPARTMENT OF STATE RELATIVE TO EXTRA-
DITION OF FUGITIVES FROM JUSTICE, A LIST OF THE TREATIES
IN FORCE, WITH THE INTERNATIONAL CONVENTIONS AND
ACTS TO WHICH THE UNITED STATES IS A PARTY,
AND A CHRONOLOGICAL LIST OF TREATIES.
ROBERT T. DEVLIN,
Of the San Francisco Bar,
AUTHOR OF "A TREATISE ON THE LAW OF DEEDS. :
SAN FRANCISCO:
BANCROFT-WHITNEY COMPANY,
LAW PUBLISHERS AND LAW BOOKSELLERS.
1908.
Copyright, 1908.
BY
EGBERT T. DEVLIN.
SAN FRANCISCO:
THE FILMER BROTHERS ELECTROTYPE COMPANY,
TYPOGRAPHERS AND STERECTYPERS.
PREFACE.
The two most important powers possessed by the national gov-
ernment under the Constitution of the United States are the power
to declare war and the power to make treaties — powers which,
for brevity and convenience, we may designate as the war power
and the treaty power. By the Declaration of Independence, the
American colonies became free and independent states, capable of
entering into treaties and of making alliances with foreign nations:.
Under the Articles of Confederation the right of sending and
receiving ambassadors and of entering into treaties with other
nations was conferred upon the Continental Congress. Treaties
made under such authority had, however, no binding force upon
the separate states, many of which passed laws completely nul-
lifying their provisions. There was an entire absence of judicial
power under the Articles of Confederation to enforce the obliga-
tions of a 'treaty, and Congress was unable to assure the other
contracting party that its part of the bargain could be performed.
The various states, in their sovereign capacity, might act as they
willed, and there was no authority in the national government,
then existing, to compel the fulfillment of national compacts.
These, and other causes, led to the adoption of the present Con-
stitution of the United States, which declares that treaties made
under its authority shall be the supreme law of the land, and that
the judicial power of the federal government shall extend to all
cases in law and equity arising under such treaties. The Consti-
tution contains other clauses, prohibiting the states from entering
into treaties and placing the exercise of the treaty power in the
hands of the President in co-operation with the Senate. Recent
events have made the questions arising from the exercise of this
power of great interest, and it has been my fortune to investigate,
in an official capacity, on behalf of the United States, many of the
questions considered in this volume.
(iii)
194600
iv PREFACE.
The treaty clauses of the Constitution are of sufficient impor-
tance to demand more consideration than is generally accorded
to them in works on constitutional and international law, and it was
my original intention to consider only the questions arising under
them, but as the work progressed, it broadened in its scope so that
now it treats of many questions of a cognate nature to which these
clauses give rise.
While no two lawyers will, perhaps, agree that one particular
branch of a question is more important than another — in a sense
they are all equally important — yet I have treated some subjects
at length and others more concisely. The constitutional prohibi-
tions on the states to enter into treaties, the making, taking effect
and termination of treaties, and the federal questions arising un-
der treaties, are treated, it is believed, with sufficient complete-
ness. Specially, have I devoted attention to the construction
of treaties, the extent of the treaty-making power, and the con-
flict between treaties and acts of Congress, state constitutions and
statutes. The law relative to international extradition dependent
on treaty, the rights and duties of consuls, the acquisition of ter-
ritory by treaty, together with naturalization and expatriation, has
been also rather fully considered, while the chapters on the re-
sponsibility of the government for mob violence and claims against
governments — covering only a part of the ground, it is true — may
possess an interest from another than a purely legal standpoint.
It has been my aim to give the law as stated by the courts, but
I have not hesitated, when I deemed it proper, to express my
^wn views, placing them, however, in separate sections. It may
not be inappropriate to add that I believe that the United States
is a sovereign nation, fully capable, where not restrained by the
limitations of the Constitution, of exercising all the powers that
attach to sovereignty, and consequently that the treaty power
should be construed in a broad and liberal spirit, and held to ex-
tend to all those subjects that are ordinarily disposed of by inter-
mational negotiation.
ROBERT T. DEVLIN.
San Francisco, May 1, 1908.
OP THE
UNIVERSITY
"
TABLE OF CONTENTS.
CHAPTER I.
TEEATY CLAUSES OF THE CONSTITUTION.
§ 1. Treaty clauses of the Constitution.
§ 2. Definitions.
§ 3. The continental Congress.
§ 4. Committee to prepare plan of treaties.
§ 5. Declaration of Independence.
$ 6. Treaties under Articles of Confederation.
§ 7. Weakness of the confederation.
§ 8. Treaties under continental Congress.
§ 9. Congress unable to guarantee observance of treaty obligations.
§ 10. Eefusal of states to observe treaties.
§ 11. Want of judicial power to enforce treaties.
§ 12. Treaty of peace with Great Britain.
§ 13. Same subject.
§ 14. Breaches of this treaty.
§ 15. Constitution removed this defect.
§ 16. Comments of James Madison.
§17. Comments of Samuel Adams.
§ 18. Formation of Constitution.
§ 19. Organization of constitutional convention.
§ 20. Address to Congress.
§ 21. Comments of John Jay.
CHAPTEE II.
PEOHIBITION ON STATES.
§ 22. Prohibitory clauses.
§ 23. History of this clause.
§ 24. Confederate states had no legal existence.
§ 25. Constitutional objections to statute.
§ 26. Surrender of treaty power to general government.
§ 27. Investment by guardian in Confederate bonds.
28. Discharge of executor investing in Confederate bonds.
(v)
vi TABLE OP CONTENTS.
§ 29. Confederacy an organized treason.
§ 30. Contracts to aid the confederacy void.
§ 31. Ordinance of secession a nullity.
§ 32. Sale of property of loyal owners.
§ 33. Laws in aid of insurrection void.
§ 34. Judgments of courts, when void.
§ 35. No general rule to be applied.
§ 36. State cannot negotiate for extradition.
§ 37. Holmes case.
§ 38. Treaties now govern.
CHAPTEE III.
COMPACTS BETWEEN STATES.
§ 39. Clause as to compact with other states.
§ 40. Nature of compacts that may be made by states.
§ 41. Extent and meaning of clause.
§ 42. To what compacts does the Constitution apply.
§ 43. Boundaries between two states.
§ 44. Controversies at time of adoption of Constitution.
§ 45. Boundary between South Dakota and Nebraska.
§ 46. Construing compacts between two states.
§ 47. Disputed boundary between United States and state.
§ 48. Suits by state to recover penalties.
§ 49. Approval of Congress implied from subsequent legislation.
§ 50. Creation of mutual estoppel.
§ 51. Contract of state to exempt property from taxation.
§ 52. Subsequent statutes directing taxation of such property.
§ 53. Compacts relating to property.
CHAPTER IV.
MAKING OF TREATIES.
§ 54. Power to make treaties.
§ 55. Difference of opinion as to where power should be vested.
§ 56. Vehement attack on treaty clauses.
§ 57. Objections to lodging power with President.
§ 58. Differences between treaty-making power in England and in United
States.
§ 59. Other objections.
§ 60. Prerogative of the Executive.
§ 61. Treaty inchoate until ratified.
§ 62. Ratification of treaties by Senate.
TABLE OF CONTENTS. vii
§ 63. Eejection of treaties by Senate.
§ 64. Views of Mr. Clay.
§ 65. Adding declaration.
§ 66. Proviso adopted by Senate.
§ 67. Amendment by declaration of interpretation.
§ 68. Views of Department of State.
§ 69. Senate resolution controlling meaning of treaty.
§ 70. Executive agreements.
§ 71. Protocols within Executive authority.
§ 72. Instances.
§ 73. Suspension of tariff act by President.
§ 74. No discretion in President.
§ 75. Nonintercourse act.
§ 76. Suspension and operation of acts dependent upon President.
§ 77. Suspension of act prohibiting imports.
§ 78. Same subject — Continued.
§ 79. Importation of neat cattle.
§ 80. Products of Cuba and Porto Eico.
§ 81. Appropriation of money.
§ 82. Moral obligation.
§ 83. Alaska purchase.
§ 84. Porto Eico as foreign territory.
§ 85. Treaty dependent upon legislative action.
CHAPTER V.
TAKING EFFECT AND TEEMINATION OF TEEATIES.
§ 86. Time when treaty takes effect.
§ 87. Sovereignty transferred at date of treaty.
§ 88. Postponing operation until approval of Congress.
§ 89. Question before the court.
§ 90. Seasoning of the court.
§ 91. Effect on individual rights.
§ 92. Eetroactive effect.
§ 93. Authority of courts.
§ 94. Construction of treaty province of courts.
§ 95. Termination of treaties.
§ 96. Question a political one.
§ 97. Violation of treaty by one nation.
§ 98. Termination of treaties by notice.
§ 99. Subject matter covered by later treaty.
viii TABLE OF CONTENTS.
CHAPTER VI.
' PEDEEAL QUESTION UNDER TEEATY.
§ 100. Federal question.
§ 101. Fraudulent claim.
§ 102. Both parties claiming under grant.
§ 103. Treaty right must be set up.
§ 104. When to be set up.
§ 105. Claim under treaty not a frivolous question.
§ 106. Title in third person under treaty.
§ 107. Outstanding title in assignee in bankruptcy.
§ 108. Construction of state statutes.
§ 109. Protection of inhabitants.
§ 110. Award under claims commission.
§ 111. Diverse citizenship sole ground of jurisdiction at commencement of
suit.
§ 112. Treaty introduced as part of history of case.
§ 113. Definite issue as to claim of right.
§ 114. Manner in which cause of action arises to be stated.
CHAPTER VII.
CONSTRUCTION OF TREATIES AND EXTENT OF TEEATY-MAKING
POWEE.
§ 115. Construction of treaties a judicial question.
§ 116. Interpretation in spirit of good faith.
§ 117. Intention to be carried out.
§ 118. Treaties in two languages.
§ 119. Instructions to diplomatic officers.
§ 120. Both are originals.
§ 121. Construction favorable to execution of treaty.
§ 122. Vague and indefinite terms.
§ 123. Whole treaty to be taken together.
§ 124. Right of property in award.
§ 125. Liberal construction.
§ 126. Repugnant clauses.
§ 127. Construed as a law.
§ 128. Courts cannot question rights recognized by nation.
§ 129. Jurisdiction of crime on foreign ship.
§ 130. Rule declared by supreme court of United States.
§ 131. Most favored nation clause.
§ 132. Rules of construction codified.
§ 133. Extent of treaty-making power.
§ 134. General terms used.
TABLE OF CONTENTS. ix
§ 135. Comments.
§ 136. Chancellor Kent's views.
§ 137. Other expressions.
§ 138. Difference between delegation of treaty-making power and legisla-
tive power.
§ 139. Expressions of courts.
§ 140. Extends to all proper subjects of negotiation.
§ 141. Comments.
§ 142. Views of Mr. Butler.
§ 143. Comments.
§ 144. Panama canal zone.
§ 145. Right to attend public schools.
§ 146. Treaty provisions.
§ 147. Constitution and statutes of California.
§ 148. Resolution as to Japanese children.
§ 149. Debate in United States Senate.
§ 150. Position of the United States.
§ 151. Views of Mr. Lewis.
§ 152. Same subject — Is the treaty-making power limited or unlimited.
§ 153. Same subject — Limitation by words of Constitution.
§ 154. The tenth amendment.
§ 155. No question of state rights involved.
§ 156. Implied limitations upon treaty-making power.
§ 157. Same subject — Mr. Root's views.
§ 158. Distribution of governmental powers.
§ 159. Suits by the government.
§ 160. Colored children and the public schools.
§ 161. Same facilities for education to be afforded.
CHAPTER VIII.
CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS.
§ 162. Treaties supreme law of land.
§ 163. History of clause.
§ 164. Pre-existing treaties.
§ 165. Under the authority of the United States.
§ 166. Construction of clause.
§ 167. Treaty is equivalent to an act of Congress.
§ 168. Treaty is a contract.
§ 169. Tariff laws and treaties.
§ 170. Acts admitting states to Union.
§ 171. Treaties with Indians.
§ 172. Acts of admission affecting navigable waters.
§ 173. Damages for temporary inconvenience.
§ 174. Building bridges.
x , TABLE OF CONTENTS.
§ 175. Head money cases.
§ 176. Eeconciling act and treaty.
§ 177. Absurd conclusion to be avoided.
§ 178. Eepeal by implication.
§ 179. Fair construction not permitting arrest on prior conviction.
§ 180. Eeasoning of the court.
§ 181. Extension of treaty by doubtful construction.
§ 182. Abrogation must clearly appear.
§ 183. Dissenting views of Justices Field and Bradley.
§ 184. Same rule as to repeal of statutes by implication.
§ 185. Self-executing treaties.
§ 186. Chinese exclusion cases.
§ 187. Chinese children born in the United States.
§ 188. Application of fourteenth amendment.
§ 189. Eight to return.
§ 190. Power of state to exclude.
§ 191. Construction of exclusion laws.
§ 192. Conclusiveness of decision of department.
§ 193. Hearing arbitrarily denied.
CHAPTER IX.
STATE CONSTITUTIONS AND STATUTES IN CONFLICT WITH
TEEATIES.
§ 194. Comments.
§ 195. Fourteenth amendment applies to aliens.
§ 196. Procedure in criminal cases.
§ 197. Judicial trial necessary.
§ 198. Employment of Chinese by corporation.
§ 199. Comments.
§ 200. Property includes right to labor.
§ 201. Employment .of aliens on public works.
§ 202. Eight to administration.
§ 203. Power of court to appoint attorney for absent heirs displaced by treaty.
§ 204. State pilotage laws.
§ 205. Trademarks protected by treaty.
§ 206. Persons adding to the prevalence of disease.
§ 207. Views of majority of court.
§ 208. Dissenting views.
§ 209. South Carolina dispensary act.
§ 210. Treaty devesting state of right to tax.
§ 211. Criminal procedure.
§ 212. Consuls acting as judges.
§ 213. Municipal ordinances.
§ 214. Special rights to American citizens.
TABLE OF CONTENTS. xi
§ 215. Right of nonresident aliens to damages for death of relative.
§ 216. Prevention of intrusion on Indian lands a police regulation.
§ 217. Covenant not to rent property to a Chinaman.
§ 218. Aliens suing in courts.
§ 219. Transitory actions.
§ 220. Eights of aliens to inherit affected by treaty — Comments.
§ 221. Disability of aliens.
§ 222. Title in aliens when treaty made.
§ 223. Taking by devise.
§ 224. Foreign corporation purchasing stock of local corporation.
§ 225. Constitutional legislation.
§ 226. Alien acquiring title by descent.
§ 227. Taking by dower or curtesy.
§ 228. Alien has no inheritable blood.
§ 229. Eight of alien to take personal property.
§ 230. Treaties removing disability of aliens to inherit.
§ 231. Treaty admitting of two constructions.
§ 232. Contention of state.
§ 233. Euling of court.
8 234. Other decisions of supreme court of United States.
§ 235. Same subject.
§ 236. Same subject — Treaties of 1783 and 1794.
§ 237. Expression of executive department of government.
§ 238. Dissent from these views.
§ 239. In California.
§ 240. Constitutionality of statutes.
§ 241. Eule recognized that treaty may regulate rights.
§ 242. In Delaware.
§ 243. In Illinois.
§ 244. Existence of treaty.
§ 245. Statute not unconstitutional as special law.
§ 246. Construction of words.
§ 247. Allowance of time to sell.
§ 248. In Iowa.
§ 249. Goods not including lands.
§ 250. Treaty contemplating one step of transmission.
§ 251. In Kentucky.
§ 252. Lapse of time precluding claim.
§ 253. In Maryland.
§ 254. In Massachusetts.
§ 255. In Michigan.
§ 256. In New York.
§ 257. Limitation on time to sell.
§ 258. Existence of title at time of treaty.
§ 259. Same rights as resident heir.
§ 260. In North Carolina.
§ 261. Confiscation acts annulled.
§ 262. In Pennsylvania.
xii TABLE OF CONTENTS.
§ 263. In South Carolina.
§ 264. In Tennessee.
§ 265. In Texas.
§ 266. In Virginia.
CHAPTER X.
TEEATIES OF CESSION.
§ 267. Power to acquire territory by treaty.
§ 268. Territory may be acquired by war power or treaty-making power.
§ 269. Sovereignty passes and not property.
§ 270. Wishes of population not to be consulted.
§ 271. Rules of international law.
§ 272. Samoan and Gilbert Islands.
§ 273. Titles not devested.
§ 274. Tide lands previously granted.
§ 275. Grants made by states in case of disputed boundaries.
§ 276. What are property rights.
§ 277. Subsequent acts of Congress.
§ 278. Property includes every species of title.
§ 279. Copyrights, patents and trademarks.
§ 280. Loss of trademarks by laches.
§ 281. Political department to provide mode.
§ 282. Delegation to judicial department.
§ 283. Incomplete titles not made complete. '
§ 284. Grant deemed abandoned.
§ 285. Collateral attack.
§ 286. Perfected claims before land commission.
§ 287. Measuring of land.
§ 288. Titles complete at time of cession.
§ 289. Act of Congress in conflict with treaty of cession.
§ 290. Mexican titles in California after treaty.
§ 291. Effect of these acts.
§ 292. Decree has effect of judgment.
§ 293. Other statutes.
§ 294. Preventing incorporation of ceded territory into United States.
§ 295. Inhabitants of ceded territory as citizens.
§ 296. Foreign corporations not subjects.
§ 297. Effect of treaty on dam in Eio Grande.
<^
^ OF THE
UNIVERSITY TABLE OF CONTENTS. xiii
OF
^*UF£Rjgfes
CHAPTER XI.
TEEATIES OF EXTRADITION AND PROCEEDINGS THEREUNDER.
§ 298. Extradition dependent upon treaty.
§ 299. Extradition included within treaty-making power.
§ 300. Delivery to the United States as a matter of comity.
§ 301. No power to reciprocate.
§ 302. Escape effected by means of foreign vessel.
§ 303. Asking extradition as a favor.
§ 304. Delivery independent of treaty.
§ 305. Surrender not in pursuance of treaty.
§ 306. Delivery under immigration acts.
§ 307. Territory occupied by United States.
§ 308. Treaty measure of right.
§ 309. Crime committed within jurisdiction.
§ 310. Crime not complete in one country.
§ 311. Irregularities in extradition.
§ 312. Indictment and trial valid.
§ 313. Action by the government.
§ 314. Criminal by the law of both countries.
§ 315. Bonds and coupons.
§ 316. Common-law crimes.
§ 317. Embezzling public moneys.
§ 318. Law of the place.
§ 319. Laws of the place of refuge.
§ 320. Forgery in the third degree.
§ 321. Retroactive effect of treaties^
§ 322. Special stipulation as to time of taking effect.
§ 323. Extradition of citizens.
§ 324. Treaty provisions.
§ 325. Position of the United States.
§ 326. Under the Mexican law.
§ 327. Citizens of another country.
§ 328. Political offenses.
§ 329. Final decision as to question.
§ 330. Some instances.
§ 331. Raid at San Ignacio.
§ 332. Pilcomayo mutineers.
§ 333. Exemption from local jurisdiction.
§ 334. Attempt against life of President or other officers.
§ 335. Case of anarchists.
§ 336. Trial for different offense.
§ 337. Pleading other offense.
xiv TABLE OF CONTENTS.
§ 338. Variances.
§ 339. Lesser offense.
§ 340. Arrest on prior charge.
§ 341. Offense committed pending trial.
§ 342. Application for requisition.
§ 343. Mandate.
§ 344. Who may act as magistrate.
§ 345. Sufficiency of the complaint.
§ 346. Precision of indictment not required.
§ 347. Ordinary technicalities not applicable.
§ 348. Arrest of fugitive.
§ 349. Provisional arrest.
§ 350. Evidence required.
§ 351. Foreign depositions.
§ 352. Evidence on behalf of fugitive.
§ 353. Habeas corpus proceedings.
§ 354. Appeal and not writ of error.
§ 355. Consul may appeal.
§ 356. Conflicting evidence.
§ 357. Surrender of fugitive an executive function.
§ 358. Surrender upon different charge.
§ 359. Eefusal to surrender.
§ 360. Eelease of debtor in jail under civil process.
§ 361. Delivery within two months after commitment.
§ 362. Transit across the United States.
§ 363. Eestoration of property.
§ 364. Expenses of extradition.
§ 365. Expenses of district attorney.
§ 366. Method for payment of expenses.
§ 367. Deserting seamen.
§ 368. Gradual extension of list of crimes included in treaties.
§ 369. Eegulations of State Department.
CHAPTEE XII.
TEEATIES WITH INDIANS.
§ 370. Treaties with Indians.
§ 371. Dawes Commission.
§ 372. Eeport of commission.
§ 373. Further legislation.
§ 374. Tribe party to suit.
§ 375. Appeals to the supreme court.
§ 376. Constitutionality of legislation.
§ 377. Indian treaties prior to legislation.
§ 378. Eelinquishment by Great Britain.
TABLE OP CONTENTS. 4 xv
§ 379. Indian right of occupation.
§ 380. Cutting timbers by Indians.
§ 381. Title of United States devested by patent.
§ 382. Abandonment of possession by Indians.
§ 383. Treaty-making power may dispose of government's title.
§ 384. Indian nation not a foreign state.
§ 385. General acts of Congress not applicable to Indians.
§ 386. Indians becoming citizens.
§ 387. Policy of the United States.
§ 388. Effect of treaties with Indians.
§ 389. Kecognition of executive department followed by courts.
§ 390. Liberal construction of treaties.
§ 391. May be controlled by legislation.
§ 392. Technical meaning of treaties not to be considered.
§ 393. Indian tribe not a sovereign nation.
CHAPTER XIII.
AMBASSADORS, CONSULS, CONSULAR COURTS AND FOREIGN
JUDGMENTS.
§ 394. General comments.
§ 395. Courts bound by recognition of President.
§ 396. Proof by parol evidence.
§ 397. Appointment of ambassadors and consuls.
§ 398. Citizen appointed diplomatic representative.
§ 399. Privileges of ambassadors and ministers.
§ 400. Resignation as bar to certiorari.
§ 401. Rights and privileges of consuls.
§ 402. Contract made in official capacity.
§ 403. Consular regulations of United States.
§ 404. Violation of criminal laws.
§ 405. In eastern countries.
§ 406. United States court for China.
§ 407. What law to prevail.
§ 408. Object of this court.
§ 409. Common law in force.
§ 410. Obtaining money under false pretenses.
§ 411. Suits against consuls.
§ 412. Exemption under such statutes not waived by failure to plead.
§ 413. Reclamation assessment.
§ 414. Concurrent jurisdiction with state courts.
§ 415. Right may be waived.
§ 416. Compulsory attendance of consuls as witnesses.
§ 417. Consular convention with France.
xvi TABLE OF CONTENTS.
§ 418. Sixth amendment to Constitution.
§ 419. Diplomatic action.
§ 420. Distinction as witnesses between ambassadors and consuls.
§ 421. Good excuse to be shown.
§ 422. Subpoena in behalf of prosecution.
§ 423. Contention of the government.
§ 424. Insurgent government becoming established.
§ 425. Subpoena by a state court.
§ 426. Archives privileged.
§ 427. American consuls as witnesses.
§ 428. Instructions of Department of State.
§ 429. Other instances.
§ 430. Instructions of Mr. Hay, Secretary of State.
§ 431. Facts within personal knowledge of consul.
§ 432. Evidence before courts-martial.
§ 433. Information received in official capacity.
§ 434. International law part of the law of United States.
§ 435. Eeciprocity in foreign judgments.
§ 436. Foreign judgments in personam.
§ 437. Principle as declared by supreme court of the United States.
§ 438. International law founded upon mutuality.
§ 439. Dissenting views.
§ 440. Subject continued — Impeachment for fraud.
§ 441. In the absence of fraud the merits cannot be inquired into.
§ 442. Mexican judgments.
§ 443. Canadian judgments.
§ 444. Eule in England.
§ 445. Contract to influence corruptly officer of foreign government.
§ 446. Consul cannot assume position antagonistic to his government.
§ 447. Jurisdiction of consuls by treaties.
§ 448. Liability for false imprisonment.
§ 449. Authority of consul in enemy's country.
§ 450. Power of foreign consul to commence suit in rem.
§ 451. Intervention of consul.
§ 452. Administration of estates.
§ 453. Shipping and seamen.
§ 454. Action of consul not conclusive.
§ 455. American seamen.
§ 456. Fees for prosecution of claim.
§ 457. Judicial notice of signature and seal.
§ 458. Acknowledgments and affidavits by consular officers.
TABLE OP CONTENTS. xvii
CHAPTEE XIV.
NATURALIZATION AND EXPATRIATION.
§ 459. Naturalization and expatriation.
§ 460. Perpetual allegiance.
§ 461. American doctrine.
§ 462. Compulsory military service.
§ 463. Claim of exemption as a matter of comity.
§ 464. Treaties of naturalization.
§ 465. Other treaties on same subject.
§ 466. Citizens in ceded territory.
§ 467. Effect of judgment.
§ 468. Setting aside certificate of citizenship under recent law.
§ 469. Collective naturalization by admission of a state.
§ 470. Expatriation of American citizens.
§ 471. Statute of 1907.
CHAPTER XV.
RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE.
§ 472. General comments.
§ 473. Property of consul injured through negligence.
§ 474. Punishment of violation of treaty right — President Harrison's rec-
ommendation.
§ 475. Introduction of bill to carry out recommendation.
§ 476. President McKinley's recommendation.
§ 477. Renewal of recommendation.
§ 478. President Roosevelt's recommendation.
§ 479. Hostility toward Japanese.
§ 480. Claims made by the United States.
§ 481. Official interference limited to tortious acts.
§ 482. Rules of Department of State.
§ 483. Redress for injuries — Wheelock's case.
§ 484. Offer of settlement.
§ 485. Case of William Wilson.
§ 486. Zambrano's case.
§ 487. Case of Dr. Shipley.
§ 488. Grounds for interference.
§ 489. Courts open for redress.
§ 490. Monti jo controversy.
§ 491. Federal government of Colombia responsible for acts of states.
§ 492. Same practice in the United States.
xviii TABLE OF CONTENTS.
§ 493. Constitution of Colombia prohibiting interference with states.
§ 494. An embarrassing precedent.
§ 495. Department of State not a court of error.
§ 496. Demands upon the United States.
§ 497. Destruction of French privateers at Savannah.
§ 498. Contention of France.
§ 499. Position of the United States.
§ 500. New Orleans and Key West riots in 1851.
§ 501. Distinction between rights of consul and resident foreigners.
§ 502. Appropriation by Congress.
§ 503. Explanations of appropriation.
§ 504. Damages for destruction of property.
§ 505. The steamer /' Caroline. "
§ 506. Arrest of McLeod.
§ 507. Diplomatic action.
§ 508. Opinion of John Quincy Adams.
§ 509. Principle of public law admitted.
§ 510. Federal statute enacted.
§ 511. Attacks on Chinese at Denver.
§ 512. Views of Mr. Evarts, Secretary of State.
§ 513. Compensation to owners of property.
§ 514. Attack on Chinese at Bock Springs.
§ 515. Case of territory.
§ 516. American demands on China.
§ 517. Views of Mr. Bayard, Secretary of State.
§ 518. Incident devoid of national character.
§ 519. China closed to residence.
§ 520. No reciprocity intended.
§ 521. System of American government known to China.
§ 522. President Cleveland's special message.
§ 523. Views of Senator Edmunds.
§ 524. Other allowances for injuries to Chinese residents.
§ 525. Explanation of treaty.
§ 526. Mafia riots and lynching at New Orleans.
§ 527. Demands of the Italian government.
§ 528. Withdrawal of American Minister.
§ 529. Tender of indemnity.
§ 530. Suits to recover damages.
§ 531. Killing of Italian subjects in Colorado in 1895.
§ 532. Variance between consul and ambassador.
§ 533. Action of the United States.
§ 534. Lynching of Italians at Hahnville.
§ 535. Government citizen's agent.
§ 536. Contention of Italian ambassador.
§ 537. Italians voting.
§ 538. Subject closed by appropriation.
§ 539. Eenunciation of Italian allegiance.
TABLE OF CONTENTS. xix
§ 540. Other lynching of Italians.
§ 541. Wounding of a British subject at New Orleans.
§ 542. Appropriation by Congress.
§ 543. Hanging of a Mexican in California.
§ 544. Responsibility of government for boycott.
§ 545. Eesponsibility of municipal corporation for damages by mobs.
§ 546. Liability imposed by statute.
§ 547. Eeputation of deceased.
§ 548. Participation by owner.
§ 549. Notice to be given.
§ 550. Immaterial ruling.
§ 551. Sufficient time to give notice.
§ 552. Constitutionality of such statutes.
§ 553. Liberal construction.
§ 554. Common purpose of crowd.
CHAPTER XVI.
CLAIMS AGAINST GOVERNMENTS.
§ 555. In general.
§ 556. Spanish war claims commission.
§ 557. Citizen must seek redress through his government.
§ 558. Foreigners excluded from suing.
§ 559. Suits by one state against, another.
§ 560. Presentation through Department of State.
§ 561. Action against other governments.
§ 562. Rules of Department of State.
§ 563. Discretion of government.
§ 564. Policy of Great Britain.
§ 565. Objections to presentation of claims.
§ 566. Fraud in claim.
§ 567. Citizenship.
§ 568. Policy of the United States.
§ 569. Naturalization has no retroactive effect.
§ 570. Asuignability of right.
§ 571. Assignment of award.
§ 572. Claim of bankrupt.
§ 573. Resort to local remedies.
§ 574. Courts of South American republics.
§ 575. Claim based on treaty with Italy.
§ 576. Another instance.
§ 577. Discrimination against American citizens.
§ 578 Moneys received from foreign governments in trust for America u
citizens.
xx TABLE OF CONTENTS.
§ 579. Payment of interest in claims.
§ 580. Default not attributed to government.
§ 581. Questions involving title to real estate.
§ 582. Claims arising on contracts.
§ 583. Court of claims.
§ 584. Jurisdictional requirements.
§ 585. The Bowman Act.
§ 586. Liberal construction of act.
§ 587. The Tucker Act.
§ 588. Concurrent jurisdiction of district and circuit courts.
§ 589. Procedure under the act.
§ 590. Judgments and appeals.
TABLE OF CASES CITED.
SECTION
Aaron v. City of Wausau, 98 Wis. 592, 74 N. W. 354, 40 L. R. A. 733 554
Abbots v. Kennedy, 5 Ala. 396 277
Adair v. White, 85 Cal. 313, 24 Pac. 663. 292
Adams v. Akerhmd, 168 111. 632, 48 N. B. 454 246
Adams v. City of Salena, 58 Kan. 246, 48 Pac. 918 547
Adamson v. City of New York, 96 N. Y. Supp. 907, 110 App. Div. 98 554
Adler v. Land etc. Co., 114 Ala. 562, 62 Am. St. Rep. 140, 21 South. 493. .. 440
Adriance v. La Grave, 59 N. Y. 110, 17 Am. Rep. 317 298
Adult, In re, 55 Fed. 376 ' 319, 345, 353
Ah Fong, In re, 3 Saw. 144, Fed. Cas. No. 102 190
Ah Kee, In re, 22 Fed. 519, 22 Blatchf . 520 191
Ah Lung, In re, 18 Fed. 28, 9 Saw. 306 176, 185, 191
Ah Ping, In re, 23 Fed. 329 189
Ah Quan, In re, 21 Fed. 182 191
Ah Yow, In re, 59 Fed. 561 191
Ah Yuk, In re, 53 Fed. 781 191
Ainsa v. New Mexico etc. R. Co., 175 U. S. 76, 20 Sup. Ct. Rep. 28, 44 L.
ed. 78 281, 286, 288, 293
Ainsa v. United States, 161 U. S. 208, 16 Sup. Ct. Rep. 544, 40 L. ed.
673 273, 293
Ainsa v. United States, 184 U. S. 639, 22 Sup. Ct. Rep. 507, 46 L. ed. 727 . . 293
Airhart v. Massieu, 98 U. S. 491, 25 L. ed. 213.. 222
Akerman, 13 Op. Atty. Gen. 354 132
Alabama v. Georgia, 64 U. S. (23 How.) 505, 16 L. ed. 556 44
Alabama etc. R. R. Co. v. Jones, Fed. Cas. No. 127, 7 Bank. Reg. 171 435
Alaska Commercial Co. v. Debney, 144 Fed. 1, 75 C. C. A. 131 443
Alfson v. Bush Co., 182 N. Y. 393, 108 Am. St. Rep. 815, 75 N. E. 230 215
Allegheny County v. Gibson, 90 Pa. 397, 35 Am. Rep. 670
546, 549, 552, 553, 554
Allentown v. Telegraph Co., 52 Am. St. Rep. 246, note 240
Ailing v. United States, 114 U. S. 562, 5 Sup. Ct. Rep. 1080, 29 L. ed. 272. . 583
Amalia, The, 3 Fed. 652 212
Amat 's Succession, 18 La. Ann. 403 210
American Ins. Co. v. Canter, 26 U. S. (1 Pet.) 511, 7 Fed. 242 469
American Ins. Co. v. 356 Bales of Cotton, 1 Pet. (U. S.) 512, 7 L. ed. 243. . 267
American Ins. Co. v. 366 Bales of Cotton (Canter), 1 Pet. 542, 7 L. ed.
243 132
American Sugar Ref . Co. v. United States, 136 Fed. 508 90
Kxii TABLE OF CASES CITED.
SECTION
Amiable Isabella, The, 6 Wheat. 1, 5 L. ed. 191 132, 140
Anderson v. Lewis, Freem. Ch. 178 115
Andes v. Millard, 70 Fed. 517 440
Angariea de la Kua v. Bayard, 4 Mackey, 310 60
Ansbro v. United States, 159 TJ. S: 698, 16 Sup. Ct. Eep. 189, 40 L. ed.
311 113
Anzar v. Miller, 90 Cal. 342, 27 Pac. 299 285, 286, 288
Ajsis v. United States, 88 Fed. 936 289
Arihart v. Massieu, 98 U. S. 496, 25 L. ed. 215 273
Arthur v. Homer, 96 U. S. 140, 24 L. ed. 812 184
Ash v. People, 83 Am. Dee. 742, note 240
Astiazaran v. Santa Kita Min. Co., 148 U. S. 80, 13 Sup. Ct. Bep. 457, 37
L. ed. 377 282, 286, 289
Atherton v. Fowler, 96 U. S. 513, 24 L. ed. 732 291
Atkinson v. United States, 29 Ct. of Cl. 68 123
Attorney General v. Bay State Min. Co., 99 Mass. 148, 96 Am. Dec. 717. . 240
Auditor General v. Williams, 94 Mich. 188, 53 N. W. 1100 392
Ayers, Ex parte, 123 U. S. 489, 8 Sup. Ct. Kep. 164, 31 L. ed. 216 559
Bacon v. Texas, 163 U. S. 207, 16 Sup. Ct. Eep. 1023, 41 L. ed. 132 52
Bahnaud v. Bize, 105 Fed. 485 230, 236
Baiz, Ex parte, 135 U. S. 403, 10 Sup. Ct. Kep. 854, 34 L. ed. 222 398
Baker, In re, 29 How. Pr. 485 201
Baker v. Grice, 169 U. S. 284, 18 Sup. Ct. Eep. 323, 42 L. ed. 748 353, 354
Baker v. Harvey, 181 U. S. 481, 21 Sup. Ct. Eep. 690, 45 L. ed. 963 288
Baker v. Newland, 25 Kan. 25 176
Baker v. Portland, 5 Saw. 566, 2 Fed. Cas. No. 777 201
Baker v. Shy, 9 Heisk. (Tenn.) 85 226, 264
Baker v. State, 88 Wis. 147, 59 N. W. 572 312
Baldwin v. Franks, 120 U. S. 702, 7 Sup. Ct. Eep. 656, 30 L. ed. 766 2
Baldwin v. Goldfrink, 88 Tex. 249, 31 S. W. 1064 265, 288
Baldwin v. Kansas, 129 U. S. 57, 9 Sup. Ct. Eep. 195, 32 L. ed. 642 211
Baltimore v. Pouetney, 25 Md. 107 545
Baltimore & P. E. Co. v. Hopkins, 130 U. S. 225, 9 Sup. Ct. Eep. 503, 32
L. ed. 913 112
Baltz Brewing Co. v. Kaiserbrauerer, 74 Fed. 222, 20 C. C. A. 402 205
Bank of Australasia v. Harding, 9 Com. B. 661 444
Bank of Australasia v. Nias, 16 Q. B. 717 444
Bank of California v. Shaber, 55 Cal. 322 546
Banks v. Moreno, 39 Cal. 246 281, 285
Barber v. International Co. of Mexico, 73 Conn. 587, 48 Atl. 758 457
Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Eep. 357, 28 L. ed. 923 213
Barges v. Hogg, 2 N. C. 485 227
Barnett v. Barnett, 9 N. Mex. 205, 50 Pac. 337 277
Barren v. Kelly, 31 Tex. 476 .469
TABLE OF CASES CITED.
SECTION
Barrett v. Kelly, 31 Tex. 476 221, 227
Barry v. Gamble, 3 How. 32, 11 L. ed. 479 288
Bartram v. Bobertson, 15 Fed. 212, 21 Blatchf. 211 85, 87, 167
Bartram v. Eobertson, 122 U. S. 116, 7 Sup. Ct. Eep. 1115, 30 L. ed.
1118 131, 169
Baruch, In re, 41 Fed. 473 336
Barzizas v. Hopkins, 2 Eand. (Va.) 276 226
Bates, 11 Op. Atty. Gen. 117 565
Battelle's Case, 7 Ct. of Cl. 297 587
Baxter v. United States, 51 Fed. 675, 2 C. C. A. 411 580
Bayard v. Singleton, 1 N. C. 5 221
Beard v. Federy, 3 Wall. 478, 18 L. ed. 88 274, 281, 291, 292
Beck, In re, 11 N. Y. Supp. 199, 31 N. Y. St. 965, 2 Connolly Surr. (N.
Y.) 355 257
Beck v. McGillis, 9 Barb. (N. Y.) 35 229
Bee, The, 1 Ware, 336, 3 Fed. Cas. No. 1219 227
Beecher v. Wetherby, 95 U. S. 525, 24 L. ed. 441 379
Behrendt, In re, 22 Fed. 699, 23 Blatchf. 40 350
Belding v. Hebard, 103 Fed. 542, 43 C. C. A. 296 50
Beley v. Naphtaly, 169 U. S. 353, 18 Sup. Ct. Rep. 354, 42 L. ed. 775 291
Bellencontre, In re, 2 Q. B. D. 122 350
Bello Corrunes, The, 6 Wheat. 152, 5 L. ed. 229 450, 451
Benito Estenger, The, 176 U. S. 568, 20 Sup. Ct. Eep. 489, 44 L. ed. 592 ... 449
Bennett v. Harms, 51 Wis. 251, 81 N. W. 222 227
Bennett v. Hibbert, 88 Iowa, 154, 55 N. W. 93 223
Benson v. McMahon, 127 U. S. 457, 8 Sup. Ct. Eep. 1240, 32 L. ed. 234
316, 331, 343, 344, 349, 350
Benson v. United States, 44 Fed. 182 216
Berger v. United States, 36 Ct. of Cl. 243 586
Bernal v. Lynch, 36 Cal. 143 292
Biddle v. United States, 156 Fed. 759 408, 410
Black, 9 Op. Atty. Gen. 246 344
Black, 9 Op. Atty. Gen. 338 563
Black, 9 Op. Atty. Gen. 497 . . . '. 344, 366
Blair v. Odin, 3 Tex. 288 273
Blair v. Pathkiller, 2 Yerg. (Tenn.) 407 264
Blandf ord v. State, 10 Tex. App. 627 317, 336
Blecker v. Bond, 3 Wash. C. C. 542, Fed. Cas. No. 1534 383
Blight v. Eochester, 7 Wheat. 535, 5 L. ed. 516 226, 228
Blodgett v. Syracuse, 36 Barb. (N. Y.) 526 554
Blount v. Horniblea, 3 N. C. (2 Hayw.) 36 221
Blue Jacket v. Commissioners, 3 Kan. 299 387
Blue Jacket v. Commissioners of Johnson Co. (The Kansas Indians), 5
Wall. 737, 18 L. ed. 667. 390, 392
Blythe v. Hinckley, 127 Cal. 435, 59 Pac. 787 240, 241
xxiv TABLE OF CASES CITED.
SECTION
Bockerling v. United States, 35 Ct. of Cl. 312 583
Bodemuller v. United States, 39 Fed. 437 567
Bollerman v. Blake, 94 N. T. 624, 24 Hun, 187 257
Bonaparte v. Camden etc, E. Co., Baldw. 205, 3 Fed. Gas. No. 1617 227
Borgmeyer v. Idler, 159 U. S. 408, 16 Sup. Ct. Eep. 34, 40 L. ed. 199
Ill, 112, 114
Bors v. Preston, 111 U. S. 252, 4 Sup. Ct. Eep. 407, 28 L. ed. 419. .398, 411, 414
Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989 213
Botiller v. Dominguez, 130 U. S. 238, 9 Sup. Ct. Eep. 525, 32 L. ed.
928 94, 282, 286, 288, 289
Botiller v. Dominguez, 130 U. S. 247, 9 Sup. Ct. Eep. 527, 32 L. ed. 929 . . 171
Boulden v. Phelps, 12 Saw. 316, 30 Fed. 547 291
Boutwell v. United States, 29 Ct. of Cl. 68 123
Bowe v. United States, 42 Fed. 761 587
Boyd v. State of Nebraska, 143 U. S. 158, 12 Sup. Ct. Eep. 375, 36 L. ed.
103 469
Boyle v. Hinds, 2 Saw. 527, 3 Fed. Cas. No. 1759 292
Bradford, 1 Op. Atty. Gen. 53 488
Bradley v. Dwight, 62 How. Pr. 300 226
Bradstreet v. Supervisors of Oneida County, 13 Wend. 546 221, 226
Bradwell v. Weeks, 1 Johns. Ch. (N. Y.) 206 229
Brannigan v. Union G. M. Co., 93 Fed. 164 215
Breaux v. Johns, 4 La. Ann. 142, 50 Am. Dec. 557 382
Breen, In re, 73 Fed. 458 317, 344, 350, 351
Brene v. Insurance Co., 96 U. S. 627, 24 L. ed. 858. .* 581
Brig Aurora v. United States, 7 Cranch, 382, 3 L. ed. 378. 75
Briggs' Case, 15 Ct. of Cl. 48 584
Bright Js Lessee v. Eochester, 7 Wheat. 535, 5 L. ed. 516 226, 236
Bringham v. Bristol, 65 Me. 426, 20 Am. Eep. 711 552
Brooks v. Missouri, 124 U. S. 394, 8 Sup. Ct. Eep. 443, 31 L. ed. 456 211
Brown, Ex parte, 148 Fed. 68 340
Brown, Ex parte, 205 U. S. 309, 27 Sup. Ct. Eep. 539, 51 L. ed. 816 340
Brown v. Landon, 30 Hun, 57 458
Brown v. Massachusetts, 144 U. S. 579, 12 Sup. Ct. Eep. 759, 36 L. ed.
550 211
Brown v. Pearson, 41 Iowa, 481 226
Brown v. Sprague, 5 Denio (N. Y.) , 545 258
Brown v. Steele, 23 Kan. 675 389
Brown v. United States, 32 Ct. of Cl. 432 393
Browne v. Palmer, 66 Neb. 287, 92 N. W. 315 458
Browning v. Browning, 3 N. Mex. 467, 9 Pae. 677 277
Bryan v. Kennett, 113 U. S. 179, 5 Sup. Ct. Eep. 407, 28 L. ed. 908 . . 273, 278
Bryan v. Kentucky Conference M. E. Church etc., 151 U. S. 639, 14 Sup.
Ct. Eep. 465, 38 L. ed. 297 52
Bryan v. United States, 21 Ct. of Cl. 249 587
TABLE OF CASES CITED. xxv
SECTION
Bryant, In re, 80 Fed. 282 350
Bryant v. United States, 167 II. S. 104, 17 Sup. Ct. Rep. 744, 42 L. ed. 94
338, 353
Buchanan v. Deshon, 1 Har. & G. (Md.) 280 221, 226, 227
Buchanan v. Smith, 43 Miss. 91 33, 34
Buck v. Holloway, 2 J. J. Marsh. 164 382
Bulkley 's Case, 8 Ct. of Cl. 519 587
Bunton v. United States, 62 Fed. 172 : 580
Burchard, The, 42 Fed. 608 212, 447
Burgess v. Gray, 16 How. 48, 14 L. ed. 839 281
Burk v. Brown, 2 Atk. 397 221
Burn v. Bletcher, 23 U. C. Q. B. 28 444
Burnside v. Matthews, 54 N. Y. 78 227
Burrow v. Burrow, 98 Iowa, 400, 67 N. W. 287 223, 250
Burrows-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 4 Sup. Ct. Kep.
279, 28 L. ed. 349 80
Burthe v. Denis, 133 U. S. 514, 10 Sup. Ct. Kep. 335, 33 L. ed. 768 110
Burton v. Burton, 1 Abb. Dec. (N. Y.) 271 227
Burton v. Burton, 26 How. Pr. (N. Y.) 474 227
Bush v. United States, 29 Ct. of Cl. 144 . 91
Buttz v. Northern Pac. R. R. Co., 119 U. S. 55, 7 Sup. Ct. Rep. 105, 30
L. ed. 330 379
Byers, Ex parte, 32 Fed. 408 130, 388
Byrne v. Alas, 74 Cal. 635, 16 Pac. 523 292, 382
Byrne v. Herran, 1 Daly (N. Y.), 344 399
Calder 's Case, 6 Op. Atty. Gen. 91 344
Caldwell v. Cuyahoga County, 8 Ohio Cir. Dec. 56 552
Caldwell v. Robinson, 59 Fed. 654 382
Caldwell v. State, 1 Stew. & P. (Ala.) 327 385
Calhoun v. Kellogg, 41 Ga. 240 34
California Powder Works v. Davis, 151 U. S. 393, 38 L. ed. 206, 14 Sup.
Ct. Rep. 352 103, 104
Callsen v. Hope, 75 Fed. 758 273
Camp v. Ward, 69 Vt. 289, 60 Am. St. Rep. 931, 37 Atl. 748 440
Campbell v. Steamer Uncle Sam, -McAll. 77, Fed. Cas. No. 2372 454
Cantini v. TUlman, 54 Fed. 969 209
Cardwell v. American River Bridge Co., 113 U. S. 205, 5 Sup. Ct. Rep. 423,
28 L. ed. 959 172
Carey v. Brown, 58 Cal. 180 292
Carey v. Houston & T. R. Co., 150 U. S. 170, 14 Sup. Ct. Rep. 63, 37 L.
ed. 1041 113
Carlisle v. United States, 29 Ct. of Cl. 414 587
Carlow v. Aultman, 28 Neb. 672, 44 N. W. 873 221, 222
Carneal v. Banks, 10 Wheat. 181, 6 L. ed. 297 132, 234, 238
xxvi TABLE OF CASES CITED.
SECTION
Carpentier v. Montgomery, 13 Wall. 480, 20 L. ed. 698 292
Carr v. State, 127 Ind. 218, 22 Am. St. Eep. 624, 26 N. E. 783, 11 L. E.
A. 375 580
Carrier, In re, 57 Fed. 578 344
Carter v. Territory, 1 N. Mex. 317 469
Case v. Toftus, 14 Saw. 217, 39 Fed. 733, 5 L. E. A. 688 378
Castrique v. Imrie, L. E. 4 H. L. 414 435, 444
Castro v. De Uriarte, 16 Fed. 93 115, 176
Catron v. Laughlin, 11 N. Mex. 604, 72 Pac. 26 281
Cavneac v. Banks, 10 Wheat. 189, 6 L. ed. 297 240
Central Colorado Imp. Co. v. Pueblo County, 95 U. S. 259, 24 L. ed. 495 . . 293
Central E. etc. Co. v. Ward, 37 Ga. 515 32
Cessna v. United States, 169 U. S. 165, 18 Sup. Ct. Eep. 314, 42 L. ed.
702 293
Chadbourne v. Newcastle, 48 N. H. 196 546, 552, 553
Chae Chan Ping, In re, 36 Fed. 431, 13 Saw. 486 189
Chae Chan Pang v. United States, 130 U. S. 581, 9 Sup. Ct. Eep. 623,
32 L. ed. 1068 186, 191, 196
Chapman v. Toy Long, Fed. Cas. No. 2610, 4 Saw. 28 201
Chappel v. United States, 34 Fed. 673 589
Chappell v. Bradshaw, 128 U. S. 134, 9 Sup. Ct. Eep. 40, 32 L. ed. 370. . 211
Chappell v. Doe, 49 Ala. 155 34
Chappell Chemical Co. v. Sulphur Mines Co., 172 U. S. 471, 19 Sup. Ct.
Eep. 267, 43 L. ed. 517 104
Charleville v. Chouteau, 18 Mo. 493 281
Chase v. United States, 155 U. S. 489, 15 Sup. Ct. Eep. 174, 39 L. ed. 234. . 590
Chaves v. Whitney, 4 N. Mex. 178, 16 Pac. 608 288, 293
Chavez v. Chavez De Sanchez, 7 N. Mex. 58-82, 32 Pac. 144 277, 281, 289
Cheatham, Ex parte (Tex. Grim. App.), 95 N. W. 1077 342
Cheely v. Clayton, 110 U. S. 701, 4 Sup. Ct. Eep. 328, 28 L. ed. 298 435
Chepley v. Farris, 45 Cal. 538 281, 284, 285
Cherokee Nation v. Georgia, 5 Pet. 48, 8 L. ed. 42 383, 384
Cherokee Nation v. Georgia, 5 Pet. 60, 8 L. ed. 25 2
Cherokee Nation v. Kansas Ey. Co., 135 U. S. 653, 10 Sup. Ct. Eep. 970,
34 L. ed. 301 385
Cherokee Nation v. Southern Kansas E. Co., 135 U. S. 641, JO Sup. Ct.
Eep. 965, 34 L. ed. 295 .' 393
Cherokee Tobacco, The, 78 U. S. (11 Wall.) 616, 20 L. ed. 227 94, 167, 168
Chew Heong v. United States, 112 U. S. 536, 5 Sup. Ct. Eep. 255, 28 L.
ed. 770 2, 176, 177, 182, 183, 185, 186, 189
Chicago v. Manhattan Cement Co., 178 111. 372, 69 Am. St. Eep. 321,
53 N. E. 68, 45 L. E. A. 848 546, 552
Chicago League Ball Club v. Chicago, 77 111. App. 124 545, 546
Chin A On, In re, 18 Fed. 506, 9 Saw. 343 176
TABLE OP CASES CITED. xxvii
SECTION
Chinese Exclusion Case, The, 130 U. S. 604, 9 Sup. Ct. Rep. 623, 32 L.
ed. 1068 140, 175
Chinese Merchants' Case, 7 Saw. 546, 13 Fed. 605 176, 177, 191
Chinese Waiter, Case of, 13 Fed. 286, 7 Saw. 536 189, 191
Chinese Wife, Case of the, 21 Fed. 785 191
Chin King, Ex parte, 35 Fed. 354, 13 Saw. 333 187
Chin You v. United States (Jan. 6, 1908), 28 Sup. Ct. Rep. 201 193
Chirac v. Chirac, 2 Wheat. 259, 4 L. ed. 234 150, 235, 238, 240, 53(3
Chirac v. Chirac, 4 Wheat. 453, 4 L. ed. 613 24(1
Chirac v. Chirac, 8 Wheat. 464, 5 L. ed. 662 246
Chirac v. Chirac, 9 Wheat. 489, 6 L. ed. 142 240
Chirac v. Chirac, 10 Wheat. 181, 6 L. ed. 297 240
Choctaw Nation v. United States, 19 Ct. of 01. 250 586
Choctaw Nation v. United States, 119 U. S. 1, 7 Sup. Ct. Rep. 75, 30
L. ed. 306 376, 391
Chouteau v. Eckhart, 2 How. 344, 11 L. ed. 293 281, 282, 283
Chouteau v. United States, 9 Pet. 138, 9 L. ed. 78 273
Chow Goo Pooi, In re, 25 Fed. 77 191
Christian etc. Co. v. Coleman, 125 Ala. 158, 27 South. 786 441
Chy Lung v. Freeman, 92 U. S. 279, 23 L. ed. 550 150, 198
Cienf uegos, In re, 62 Fed. 972 352
City of Atchison v. Irvine, 9 Kan. 350 552
City of Chicago v. Pennsylvania Co., 119 Fed. 497 554
City of lola v. Birnbaum, 71 Kan. 600, 81 Pac. 198 552, 553, 554
City of MadisonviUe v. Bishop, 113 Ky. 106, 67 S. W. 269, 57 L. R. A.
130 554
Clark v. Bates, 1 Dak. 50, 46 N. W. 512 167, 171
Clark v. Clark, 17 How. 315, 15 L. ed. 77 572
Clark v. Commonwealth of Pennsylvania, 128 U. S. 395, 9 Sup. Ct. Rep.
113, 32 L. ed. 487 104
Clark v. Lockwood, 21 Cal. 220 292
Clay v. Clay, 26 Tex. 24 221
Clear Lake Water Works v. Lake County, 45 Cal. 90 552
Clinton Bridge, The, 1 Woolw. 155, Fed. Cas. No. 2900 168
Clyde v. United States, 13 Wall. 38, 20 L. ed. 479 584
Coburn v. San Mateo County, 75 Fed. 520 273, 274
Coburn v. United States, 75 Fed. 528 274
Gofer v. United States, 30 Ct. of 01. 131 58fl
Coffee v. Groover, 20 Fla. 81 127
Ooffee v. Groover, 123 U. S. 1, 8 Sup. Ct. Rep. 1-10, 31 L. ed. 51-56. . 127, 275
Cofrode v. Gartner, 79 Mich. 332, 44 N. W. 623, 7 L. R. A. 511 219
Cohens v. Virginia, 19 U. S. (6 Wheat.) 264, 5 L. ed. 257 140, 183
Cohn v. Jones, 100 Fed. 639 320, 338, 353
Collins, Ex parte (Cal.) , 90 Pac. 827 341
Collins, Ex parte, 154 Fed. 980 353
xxviii TABLE OF CASES CITED.
SECTION
Colorado Central Con. Min. Co. v. Turck, 150 U. S. 138, 14 Sup. Ct. Eep.
35, 37 L. ed. 1030 Ill
Colorado Fuel Co. v. Maxwell Land Grant Co., 22 Colo. 71, 43 Pac. 556. . 293
Commissioners of Sinking Fund v. Buckner, 48 Fed. 542 580
Commonwealth v. Alger, 7 Cush. (Mass.) 84 213
Commonwealth v. Bristow, 6 Call (Va.), 60 261, 266
Commonwealth v. Deacon, 10 Serg. & E. 125 298
Commonwealth v. Detwiller, 131 Pa. 614, 18 Atl. 990, 7 L. E. A. 357 229
Commonwealth v. Hawes, 13 Bush (Ky.), 697, 26 Am. Eep. 242
298, 305, 308, 336
Commonwealth v. Kosloff, 5 Serg. & E. (Pa.) 545 411
Commonwealth v. Melton, 12 B. Mon. (Ky.), 212, 54 Am. Dec. 522 240
Commonwealth v. New York L. E. & W. E. Co., 114 Pa. 340, 7 Atl. 756. . 224
Commonwealth v. Paper, 1 Brewst. 263 467
Commonwealth v. Shaw, 6 Grim. L. Mag. (Pa.) 245 312
Commonwealth v. Sheaf e, 6 Mass. 441 254
Commonwealth v. Wright, 158 Mass. 151, 35 Am. St. Eep. 476, 33 N. E. 83,
19 L. E. A. 208 337
Compagnie Francaise etc. v. State Board of Health, 51 La. Ann. 645, 72
Am. St. Eep. 458, 25 South. 591, 56 L. E. A. 795 206
Compagnie Francaise v. State Board of Health, 186 U. S. 380, 22 Sup.
Ct. Eep. 811, 46 L. ed. 1209 206, 207, 208
Compo v. Jackson Iron Co., 50 Mich. 583, 16 N. W. 300 388
Connolly v. Smith, 21 Wend. (N. Y.) 59 227
Connor v. Scott, 4 Dill. 246, Fed. Gas. No. 3119 107
Connor v. United States, 19 Ct. of Cl. 675 393
Conserva, The, 38 Fed. 434 451
Contee v. Godfrey, 1 Cranch C. C. 479, 6 Fed. Cas. No. 3140 226
Cook v. Hart, 146 U. S. 183, 13 Sup. Ct. Eep. 43, 36 L. ed. 934 311
Cook v. Oliver, 1 Woods, 437, 6 Fed. Cas. No. 3164 34, 35
Cook v. State, 71 Neb. 243, 98 N. W. 810 410
Cooley v. Port Wardens, 12 How. 299, 13 L. ed. 996 80
Copeland v. Sauls, 46 N. C. 70 227
Coppell v. Hall, 7 Wall. 553, 19 L. ed. 244 401, 402
Corn v. Andre, 3 Pick. 224 221
Cornet v. Winston, 2 Yerg. (Tenn.) 144 264, 382
Corries ' Case, 2 Bland (Md.) , 488 229
Cortes, In re, 42 Fed. 47 317
Cory v. Carter, 48 Ind. 327, 17 Am. Eep. 738 160
Cosgrove v. Cosgrove, 69 Conn. 416, 38 Atl. 219 226, 229
Cosgrove v. Winney, 174 U. S. 68, 19 Sup. Ct. Eep. 598, 43 L. ed. 897 336
Cotton v. United States, 29 Ct. of Cl. 207 587
Count de Toulouse Lautrec, In re, 102 Fed. 878, 43 C. C. A. 42 315
Courtney v. Turner, 12 Nev. 345 221
Coveney v. Phiscator, 132 Mich. 258, 93 N. W. 619 443
TABLE OF CASES CITED. xxix
SECTION
Cowenia v. Hannah, 3 Or. 465 281
Coxe v. Gulick, 10 N. J. L. 328 228
Coy, Ex parte, 32 Fed. 911 336
Cragin v. Powell, 128 U. S. G91, 9 Sup. Ct. Eep. 203, 32 L. ed. 566 282
Craig v. Leitensdorfer, 123 U. S. 189, 8 Sup. Ct. Eep. 85, 31 L. ed. 114. . 281
Craig v. Leslie, 16 U. S. (3 Wheat.) 563, 4 L. ed. 460 221, 226
Craig v. Eadford, 16 U. S. (3 Wheat.) 594, 4 L. ed. 467 221, 236
Crane v. Eeeder, 21 Mich. 24, 4 Am. Eep. 430 221, 255
Crittenden, 5 Op. Atty. Gen. 345 132
Crittenden, 5 Op. Atty. Gen. 550 132
Cross, In re, 43 Fed. 520 312, 336
Cross v. Del Valle, 1 Wall. (68 U. S.) 8, 17 L. ed. 515 221
Crow Dog, Ex parte, 109 U. S. 570, 3 Sup. Ct. Eep. 396, 27 L. ed. 1035. . 184
Crusui 'a Succession, 19 La. Ann. 369 210
Cruz v. Martinez, 53 Cal. 239 292
Cryer v. Andrews, 11 Tex. 170 .' 226, 227, 469
Crystal Springs Land & Water Co. v. City of Los Angeles, 76 Fed. 148
102, 278
Crystal Springs Land & W. Co. v. Los Angeles, 82 Fed. 117 102
Cummings v. Missouri, 4 Wall. 320, 18 L. ed. 356 198
Cunningham v. Browning, 1 Bland (Md.), 308 221
Cunningham v. Macon etc. E. E. Co., 109 U. S. 450, 3 Sup. Ct. Eep. 295,
27 L. ed. 993 559
Currin v. Finn, 3 Denio (N. Y.), 229 227
Gushing, 6 Op. Atty. Gen. 85 301
Gushing, 6 Op. Atty. Gen. 91 348
Gushing, 6 Op. Atty. Gen. 148 131
Gushing, 6 Op. Atty. Gen. 217 343, 358
Gushing, 6 Op. Atty. Gen. 296 132
Gushing, 6 Op. Atty. Gen, 500 357
Gushing, 6 Op. Atty. Gen. 750 132
Gushing, 7 Op. Atty. Gen. 342 405
Gushing, 7 Op. Atty. Gen. 396 364, 366
Gushing, 7 Op. Atty. Gen. 722 357
Gushing, 8 Op. Atty. Gen. (1856) 169, 215 309, 404
Gushing, 8 Op. Atty. Gen. 240 342
Gushing, 8 Op. Atty. Gen. 417 133
Cushing v. Laird, 107 U. S. 80, 2 Sup. Ct. Eep. 196, 27 L. ed. 395 435
Dallemagne v. Moisan, 197 U. S. 169, 25 Sup. Ct. Eep. 422, 49 L. ed. 709. 453
Daniels v. Hilgard, 77 HI. 640 213
Daniels v. Tearney, 102 U. S. 419, 26 L. ed. 187 34
Darlington v. Mayor of New York, 31 N. Y. 164, 88 Am. Dec. 248 552
Davis v. Concordia, 9 How. 280, 13 L. ed. 138 86, 87, 91
Davis v. Hall, 1 Nott. & M. (S. C.) 292 226
xxx TABLE OF CASES CITED.
SECTION
Davis v. Packard, 7 Pet. 276, 8 L. ed. 684 411, 412
Davis v. Parish of Concordia, 9 How. 280, 13 L. ed. 138 132
Dawson, In re, 101 Fed. 253 361
Dawson v. Godfrey, 4 Cranch, 321, 2 L. ed. 634 226
De Arguello v. Greer, 26 Cal. 638 281, 286, 287
Debs, In re, 158 U. S. 564, 15 Sup. Ct. Rep. 900, 39 L. ed. 1092 159
De Castro v. Fellom, 135 Cal. 225, 67 Pae. 142 292
De Cosse Brissac v. Eathbone, 6 Hurl. & N. 301 444
De Geofroy v. Eiggs, 133 U. S. 258, 10 Sup. Ct. Eep. 295, 33 L. ed.
642 125, 156, 230, 233, 240
De Giacomo, In re, 12 Blatchf. 391, Fed. Cas. No. 3747 92, 321
De Give v. Grand Eapids Furniture Co., 94 Ga. 605, 21 S. E. 582 414
De Graff v. Wendt, 164 111. 485, 45 N. E. 1075 226, 228
De Kalb County v. Smith, 47 Ala. 407 547
De la Croix v. Chamberlain, 12 Wheat. 599, 6 L. ed. 741 281, 282
De la Guerra v. Santa Barbara, 117 Cal. 533, 49 Pac. 735 286
Delassus v. United States, 9 Pet. 117, 9 L. ed. 71 132, 273, 275
De Lima v. Bidwell, 182 U. S. 1, 198, 21 Sup. Ct. Eep. 743, 45 L. ed. 1041,
1056 84, 86, 140, 185
De Merle v. Mathews, 26 Cal. 455 222, 226
Den v. Brown, 7 N. J. L. 305 227
Deni v. Pennsylvania E. E. Co., 181 Pa. 525, 59 Am. St. Eep. 676, 37 Atl.
558 215
Dent v. Emmeger, 14 Wall. 308, 20 L. ed. 838 273, 281, 283
Desbois' Case, 2 Mart. (La.) 185 469
Descottes v. Talvande, 2 McMull. (S. C.) 300 226
De Toro v. Eobinson, 91 Cal. 371, 27 Pac. 671 285, 286, 288
Dewing v. Perdicaris, 6 Otto, 193, 24 L. ed. 654 31, 32
Dewit's Case, 3 Op. Atty. Gen. 661 298
Dewitt v. Buchanan, 54 Barb. 33 219
De Wolf v. Middleton, 18 E. I. 814, 26 Atl. 44, 31 Atl. 271, 31 L. E. A.
146 228
Dillon, In re, 7 Saw. 561, 7 Fed. Cas. No. 3914 418, 423
Discontento Gesellschaft v. Umbreit, 9 Advance Sheets U. S. Sup. Ct. 337
(U. S. Feb. 24, 1908) 161
Disconto Gesellschaft v. Umbreit, 127 Wis. 651, 115 Am. St. Eep. 1063, 106
N. W. 821 218
Diamond Eings, The, 183 U. S. 176, 22 Sup. Ct. Eep. 59, 46 L. ed. 138 ... 69
Dockstader v. Kershaw, 4 Penne. (Del.) 398, 55 Atl. 341 242
Doe v. Acklan, 2 Barn. & C. 779 226
Doe v. Braden, 16 How. 635, 14 L. ed. 1090 65, 93, 96, 128, 132
Doe v. Clark, 1 U. C. Q. B. 37 226
Doe v. Cleveland, 6 U. C. Q. B., O. S., 117 221
Doe v. Dickson, 2 U. C. Jur. (Canada) 326 221
Doe v. Eslava, 9 How. 421, 13 L. ed. 200 275, 288
TABLE OF CASES CITED. xxxi
SECTION
Doe v. Higgins, 39 Ala. 9 281
Doe v. Jones, 11 Ala. 63 281
Doe v. Jones, 4 Term Kep. 300 226
Doe v. Latimer, 2 Fla. 71 278
Doe v. Lazenby, Smith (Ind.), 203, 1 Ind. 234 228
Doe v. Mobile, 9 How. 451, 13 L. ed. 212 288
Doe v. Eobertson, 24 U. S. (11 Wheat.) 332, 6 L. ed. 488 221
Doe v. Eoe, 4 Penne. (Del.) 396, 55 Atl. 341 242
Doe v. Eoe, 13 Fla. 602 288
Doehrel v. Hillmer, 102 Iowa, 169, 71 N. W. 204 223, 250
Dominguez v. Botiller, 74 Cal. 457, 16 Pac. 241 286, 289
Donoghue v. Philadelphia County, 2 Pa. 230 549
Donovan v. Pitcher, 53 Ala. 411, 25 Am. Kep. 634 221, 226
Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. Eep. 1228, 31 L. ed. 844 291
Dooley v. United States, 182 U. S. 222, 21 Sup. Ct. Eep. 762, 45 L. ed.
1074 86, 91
Dos Santos, Ex parte, 2 Brock. 493, Fed. Cas. No. 4016 308
Douglas v. Kentucky, 168 U. S. 488, 8 Sup. Ct. Eep. 199, 42 L. ed. 553 52
Dow v. Johnson, 100 U. S. 158, 25 L. ed. 632 434
Dower v. Eichards, 151 U. S. 666, 14 Sup. Ct. Eep. 455, 38 L. ed. 308 104
Downes v. Bidwell, 182 U. S. 244, 247, 21 Sup. Ct. Eep. 770, 45 L. ed.
1088 86, 140, 294
Draper v. United States, 164 U. S. 243, 17 Sup. Ct. Eep. 108, 41 L. ed.
420 171
Dringer v. Eeceiver, 42 N. J. Eq. 580, 8 Atl. 815 440
Dudley v. Grayson, 22 Ky. (6 T. B. Mon.) 259 221
Dufour 's Succession, 19 La. Ann. 391 210
Dunbar v. United States, 22 Ct. of Cl. 109 583
Duncan v. Beard, 2 Nott & McC. 400 263
Dunlop v. Commonwealth, 2 Call (Va.), 284 223
Dunnington v. United States, 24 Ct. of Cl. 404 584
Dunstan v. Higgins, 138 N. Y. 70, 34 Am. St. Eep. 431, 33 N. E. 729, 30
L. E. A. 668 440
Dupasseur v. United States, 19 Ct. of Cl. 1 584
Duplantier v. United States, 27 Ct. of Cl. 323 586
Dupont, Ex parte, Harp. Eq. 5 263
Dupont v. Pichon, 4 Dall. 321, 1 L. ed. 851 411
Durand v. Halback, 1 Miles (Pa.), 46 411
Durfee v. Plaisted, 38 Cal. 80 291
Duryea v. New York, 10 Daly (N. Y.), 300 , 554
East Haven v. Hemingway, 7 Conn. 186 382
Eaton v. West Virginia, 91 Fed. 766, 61 U. S. App. 676, 34 C. C. A. 68. . 312
Educational Society v. Varney, 54 N. H. 376 227
Edwards v. James, 7 Tex. 372 288
xxxii TABLE OF CASES CITED.
SECTION
Edye v. Eobertson, 112 U. S. 580, 5 Sup. Ct. Eep. 247, 28 L. ed. 804. . .139, 175
Ehrlich v. Weber, 114 Term. 711, 88 S. W. 188 128
Eldon v. Doe, 6 Blatchf. (Ind.) 341 226
Elizabeth, The, Blatchf. Pr. 253, Fed. Cas. No. 4350 450
Elk v. Wilkins, 112 U. S. 100, 5 Sup. Ct. Eep. 44, 28 L. ed. 645 385, 386
Ellis v. Jacob, 45 N. Y. Supp. 177, 17 App. Div. 471 365
Elmondorff v. Carmichael, 3 Litt. (Ky.) 472, 14 Am. Dec. 86 221, 226
Elwin Kreplin, The, 9 Blatchf. 438, Fed. Cas. No. 4426 212, 447, 338
Ely v. Niagara County, 36 N. Y. 297 554
Ely v. United States, 171 U. S. 220, 18 Sup. Ct. Eep. 840, 43 L. ed. 142 . . 293
Emeric v. Penniman, 26 Cal. 124 292
Emmett v. Emmett, 14 Lea (Tenn.), 369 227
English v. United States, 29 Ct. of Cl. 68 123
Ennas v. Franklin, 2 S. C. (Brev.) 398 226
Ennis v. Smith, 14 How. 400, 14 L. ed. 472 435
Enos v. Sowle, 2 Hawaiian, 332 448
Erie Ey. Co. v. State, 31 N. J. L. 531, 86 Am. Dec. 226 240
Escanaba etc. v. Chicago, 107 U. S. 678, 2 Sup. Ct. Eep. 185, 27 L. ed.
442 170,172
Eslava v. Doe, 7 Ala. 543 273
Estrada v. Murphy, 19 Cal. 269 *. 281, 284, 291, 292
Estrella, The, 4 Wheat. 298, 4 L. ed. 574 434
Etheridge v. Malempre, 18 Ala. 565 . . . ; 226
Ettenheimer v. Heffernan, 66 Barb. 374 226
Eustis v. Bolle, 150 U. S. 361, 14 Sup. Ct. Eep. 131, 37 L. ed. 1111 103, 104
Evans ' Appeal, 51 Conn. 435 . . 229
Evans v. Lee, 11 Neb. 194 458
Evans v. Eichmond, 1 Chase, 551, 8 Fed. Cas. No. 4570 33, 34
Exchange, The, 7 Cranch, 144, 3 L. ed. 296 129
Ezeta, In re, 62 Fed. 967 312, 319, 328, 330, 344, 350, 351
Fairfax v. Hunter, 7 Cranch, 603, 3 L. ed. 453 150, 223, 226, 234
Farez, Case of, 7 Blatchf. 34, Fed. Cas. No. 4644 .115, 343
Farez, In re, 7 Blatchf. 345, Fed. Cas. No. 4645 319, 343, 345, 350, 352
Farez, In re, 7 Blatchf. 491, Fed. Cas. No. 4646 351
Farley v. Shippen, Wythe (Va.) , 254 227
Farmers' L. & T. Co. v. McKinney, 6 McLean (U. S.), 1, 8 Fed. Cas. No.
4667 221
Farrar v. Dean, 24 Mo. 16 .228
Fattosini's Estate, In re, 67 N. Y. Supp. 1119, 33 Misc. Eep. 18 131, 202
Fauvia v. New Orleans, 20 La. Ann. 410 546
Fealey v. Fealey, 104 Cal. 359, 43 Am. St. Eep. 114, 38 Pac. 50 440
Fellows v. Denniston (The New York Indians), 72 U. S. (5 Wall.) 761,
18 L. ed. 708 170
Ferguson v. Franklins, 6 Munf . (Va.) 305 221
TABLE OF CASES CITED. xxxiii
SECTION
Ferguson v. Mahon, 11 Ad. & E. 179 444
Ferguson v. Neville, 61 Cal. 356 221
Ferguson v. Eoss, 38 Fed. 163, 3 L. E. A. 324 559
Ferrie v. Public Administrator, 3 Bradf . Sur. 249 202
Ferris v. Coover, 10 Cal. 589 273
Fetter, In re, 23 N. J. L. (3 Zab.) 311, 57 Am. Dec. 382 308
Field v. Clark, 143 U. S. 649, 12 Sup. Ct. Eep. 495, 36 L. ed. 294 73, 74
Fink v. City of New Orleans, 110 La. 84, 34 South. 138 553
Fiott v. Commonwealth, 12 Gratt. (Va.) 564 266
First Nat. Bank v. Adams, 138 111. 483, 28 N. E. 955 246
Fischl, Ex parte (Tex. Crim. App.), 100 S. W. 773 347
Fisher v. Cockerill, 5 Pet. 257, 8 L. ed. 117 106
Fisher v. Fielding, 67 Conn. 91, 52 Am. St. Eep. 270, 34 Atl. 714, 32 L.
K, A. 236 441
Fisher v. Harnden, 1 Paine C. C. 55, Fed. Cas. No. 4819 132, 227
Fitton, In re, 45 Fed. 472 336
Fitzgerald v. Garvin, T. U. P. Charlt. (Ga.) 281 221
Fleeger v. Poole, 1 McLean, 185, Fed. Cas. No. 4860 127
Fleliher v. Peck, 6 Cranch, 142, 3 L. ed. 142 383
Florida v. Georgia, 58 U. S. 478, 15 L. ed. 181 44
Florio, In re, 43 Fed. 115 175
Folsom v. New Orleans, 28 La. Ann. 936 546
Fong Yue Ting v. United States, 149 U. S. 698, 13 Sup. Ct. Eep. 1025, 37
L. ed. 916 140, 175, 186, 191, 196, 299, 331
Fook, In re, 65 How. Pr. 404 191
Forbes v. Scannell, 13 Cal. 242 240
Ford v. Surget, 7 Otto, 594, 24 L. ed. 1018 31
Fortunich v. New Orleans, 14 La. Ann. 115 554
Foss, Ex parte, 102 Cal. 347, 41 Am. St. Eep. 182, 36 Pac. 669, 25 L. E.
A. 593 305
Foss v. Crisp, 20 Pick. (Mass.) 121 227
Foss v. Hinkell, 78 Cal. 158, 20 Pac. 393 291
Foster v. Davis, 1 Litt. (Ky.) 71 401
Foster v. Neilson, 2 Pet. 253, 7 L. ed. 411 85, 87, 96,. 132, 168, 169, 185
Fowler v. Lamson, 164 U. S. 255, 17 Sup. Ct. Eep. 113, 41 L. ed. 425 104
Fox v. Southack, 12 Mass. 143 223, 254
Fox v. Willis, 24 Ky. Law Eep. 1773, 72 S. W. 330 456
Fox v. Willis, 24 Ky. Law Eep. 2173, 73 S. W. 743 456
Foxwell v. Craddock, 1 Pat. & H. (Va.) 250 266
Frank, In re, 107 Fed. 272 183
Franklin Sugar Eef. Co. v. United States, 202 U. S. 580, 26 Sup. Ct. Eep.
720, 50 L. ed. 1153 89
Fraser v. McConway & Forley Co., 82 Fed. 257 195
Prelinghuysen v. United States, 110 U. S. 63, 3 Sup. Ct. Eep. 462, 28 L.
ed. 71 2, 60, 124
xxxiv TABLE OF CASES CITED.
SECTION
Fremont v. United States, 17 How. 553, 15 L. ed. 241 288
French v. Hopkins, 124 U. S. 524, 8 Sup. Ct. Kep. 589, 31 L. ed. 537 211
Fretz v. Stover, 89 U. S. 198, 22 L. ed. 769 30
Friend v. United States, 29 Ct. of Cl. 495 393
Frierson v. Presbyterian Church, 7 Heisk. 705 . •. 34
Frisbie v. Whitney, 9 Wall. 187, 19 L. ed. 668 291
Fry v. Smith, 2 Dana (Ky.), 38 226
Furenes v. Mickelson, 86 Iowa, 508, 53 N. W. 416 250
Gaines v. Hale, 26 Ark. 183 387
Gandolfo v. Hartman, 49 Fed. 181, 16 L. E. A. 277 217
Garcia v. Lee, 12 Pet. 511, 9 L. ed. 1176 85, 87
Gardiner v. Miller, 47 Cal. 570 268
Gardner v. Thomas, 14 Johns. 134, 7 Am. Dec. 445 219
Gee Fook Sing v. United States, 49 Fed. 146, 1 C. C. A. 211, 7 U. S. App.
27 - 188
Geoffrey v. Kiggs, 133 U. S. 258, 10 Sup. Ct. Eep. 295, 33 L. ed. 642. .140, 150
Gesellschaft v. Umbreit, 9 Advance Sheets U. S. Sup. Ct. 337 (U. S. Feb.
24, 1908) 161
Giacomo, In re, Fed. Cas. No. 3,747, 12 Blatchf. 391 92, 321
Gianfortone v. New Orleans, 61 Fed. 63, 24 L. K. A. 592 530
Gibbs ' Case, 13 Ops. Attys. Gen. 19 124
Gibson v. Everett, 41 S. C. 22, 19 S. E. 286 218
Giles v. Little, 134 U. S. 650, 10 Sup. Ct. Eep. 623, 33 L. ed. 1064 107
Gill v. Oliver's Executors, 11 How. 529, 13 L. ed. 808 108, 112
Gittings v. Crawford, Taney's Dec. (U. S) 11, Fed. Cas. No. 5465 401, 411
Glass v. Blackman, 48 Ark. 50, 2 S. W. 257 443
Glenn v. United States, 13 How. 250, 14 L. ed. 133 281
Godfrey v. Beardsley, 2 McLean, 418, Fed. Cas. No. 5497 274
Goetze v. United States, 103 Fed. 72 115
Goldfon v. Allegheny County, 14 Pa. Super. Ct. 75 366
Gonzalez, In re, 118 Fed. 941 295
Goodell v. Jackson, 20 Johns. 693, 11 Am. Dec. 351 221
GoodfeUow v. Muckey, 1 MeCrary, 244, Fed. Cas. No. 5537 383
Goodtitle v. Kibbe, 9 How. 471, 13 L. ed. 220 274
Gordon v. Kerr, 1 Wash. C. C. 322, 10 Fed. Cas. No. 5611 132, 262
Governeur v. Eobertson, 11 Wheat. 332, 6 L. ed. 488 , . . 221
Graham v. Stucken, 4 Blatchf. 50, Fed. Cas. No. 5677 411
Granfortone v. New Orleans, 61 Fed. 64, 24 L. E. A. 592 546
Grant v. Jaramillo, 6 N. Mex. 313, 28 Pac. 508 281, 289
Graves v. The W. F. Babcock, 79 Fed. 92 454
Gray v. Kauffman, 82 Tex. 65, 17 S. W. 513 222
Great Falls Mfg. Co. v. Attorney General, 124 U. S. 581, 8 Sup. Ct. Eep.
631, 31 L. ed. 527 584
Great West Ins. Co. v. United States, 19 Ct. of Cl. 206 60
TABLE OF CASES CITED. xxxv
SECTION
Great Western Ins. Co. v. United States, 112 U. S. 193, 5 Sup. Ct. Eep. 99,
28 L. ed. 687 583
Great Western By. Co. v. Miller, 19 Mich. 305 219
Greencastle's Bank Case, 15 Ct. of Cl. 225 584
Greenheld v. Morrison, 21 Iowa, 538 229
Greenia v. Greenia, 14 Mo. 526 229
Greer v. Sankston, 26 How. Pr. (N. Y.) 471 227
Gregory v. McPherson, 13 Cal. 562 288, 292
Gresar v. McDowell, 6 Wall. 363, 18 L. ed. 863 291
Gresham v. Rickenbacher, 28 Ga. 227 225
Griffin v. Dominguez, 2 Duer (N. Y.), 656 411
Griffith, In re, 84 Cal. 113, 23 Pac. 529 440
Griggs, 22 Op. Atty. Gen. 617 279
Grin v. Shine, 187 U. S. 195, 23 Sup. Ct. Eep. 98, 47 L. ed. 130. .343, 345, 351
Grisar v. McDowell, 6 Wall. 363, 18 L. ed. 863 132
Groover v. Coffee, 19 Fla. 79 127
Groves v. Gordon, 3 Brev. (S. C.) 245 221, 226
Gunn v. Bates, 6 Cal. 263 288
Guyer v. Smith, 22 Md. 239, 85 Am. Dec. 650 221, 227
Hadden v. Collector, 5 Wall. 107, 18 L. ed. 518 169
Hall v. Patterson, 45 Fed. 354 336
Hall v. Eoot, 19 Ala. 386 277, 281
Halstead v. Lake County, 56 Ind. 363 221
Halyburton v. Kershaw, 3 Desaus. (S. C.) 105 226
Hamilton v. Avery, 20 Tex. 612 281
Hamilton v. Eaton, 2 Mart. (1 N. C.) 1, 1 Hughes, 249, Fed. Gas. No.
5980 : 261
Hamilton v. Vicksburg etc. E. E. Co., 119 U. S. 285, 7 Sup. Ct. Eep.
208, 30 L. ed. 395 173
Hammekin v. Clayton, 2 Woods (U. S.), 336, 11 Fed. Cas. No. 5996. . 222, 225
Hanauer v. Doane, 79 U. S. 342, 20 L. ed. 439 30
Hanauer v. Woodruff, 82 U. S. 439, 21 L. ed. 224 30
Hancock v. McKinney, 7 Tex. 384 281, 288
Hannon v. Hounihan, 85 Va. 429, 12 S. E. 157 227
Harden v. Fisher, 1 Wheat. 300, 4 L. ed. 96 236
Hardy v. De Leon, 5 Tex. 211 227, 288
Harf ord v. United States, 8 Cranch, 109, 3 L. ed. 504 184
Harlan v. State, 41 Miss. 566 32
Harley v. State, 40 Ala. 689 221
Harney v. Donohoe, 97 Mo. 141, 10 S. W. 191 226, 229
Harrison v. Walton, 95 Va. 726, 64 Am. St. Eep. 835, 30 S. E. 374, 41 L.
E. A. 703 440
Hart v. Bridgeport, 13 Blatchf. 289, Fed. Cas. No. 6149 545
Hart v. Burnett, 15 Cal. 530 292
xxxvi TABLE OF CASES CITED.
SECTION
Hart v. Hart, 2 Desaus. Eq. 57 263
Hartley v. Brown, 51 Cal. 465 292
Harvey v. Barker, 126 Cal. 272, 58 Pac. 696 286
Hastings v. McGoogin, 27 Cal. 85 291
Hatch v. Burroughs, 1 Woods, 439, 11 Fed. Cas. No. 6203 33
Hauenstein v. Lynham, 100 U. S. 483, 25 L. ed. 628
125, 137, 227, 232, 233, 238, 240, 246, 247, 250
Haver v. Yaker, 9 Wall. 32, 19 L. ed. 571 85, 86, 87, 91, 132
Hawkins v. Filkins, 24 Ark. 286 32
Hawkins v. Mitchell, 34 Fla. 421, 16 South. 316 580
Hayner v. Stanly, 8 Saw. 214, 13 Fed. 217 292
Hays v. Steiger, 156 U. S. 387, 15 Sup. Ct. Eep. 412, 30 L. ed. 463 291
Head Money Cases, 112 U. S. 580, 5 Sup. Ct. Eep. 247, 28 L. ed. 798
94, 168, 246
Heeney v. Brooklyn Ben. Soc., 33 Barb. 360 221, 226
Heitz, In re, 111 U. S. 766, 4 Sup. Ct. Kep. 698, 28 L. ed. 592 400
Henderson v. Henderson, 6 Ad. & E., N. S., 288 444
Henderson v. Mayor etc., 92 U. S. 268, 23 L. ed. 543 198
Henderson v. Tennessee, 10 How. 323, 13 L. ed. 439 106, 107
Henrich, In re, 5 Blatchf. 414, Fed. Cas. No. 6369 343, 352
Hepburn v. Dunlop, 1 Wheat. 179, 4 L. ed. 65 221
Herman, Thomas, Case of, 12 Blatchf. 370, Fed. Cas. No. 13,887 115
Herris, In re, 32 Fed. 583 343
Herskovitz, In re, 136 Fed. 713 346, 348
Hibbs, Ex parte, 26 Fed. 421 336, 337
Hickman v. Jones, 9 Wall. 197, 19 L. ed. 551 32
Hill v. Boylan, 40 Miss. 618 34
Hill v. United States, 149 U. S. 593, 13 Sup. Ct. Rep. 1011, 37 L. ed. 862. . 584
Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. Eep. 139, 40 L. ed. 95
434, 435, 437, 438, 439
Hinkle v. Shadden, 2 Swan (Tenn.), 46 228
Ho Ah Kow v. Nunan, Fed. Cas. No. 6546, 5 Saw. 552 201
Ho King, In re, 14 Fed. 726, 8 Saw. 438 176, 191
Holbrook v. Henderson, 6 N. Y. Super. Ct. (4 Sand.) 619 396
Holcomb v. Phelps, 16 Conn. 132 435
Holden v. Joy, 17 Wall. 211, 21 L. ed. 523 94, 136, 139
Holmes, Ex parte, 12 Vt. 631 37
Holmes v. Jennison, 14 Pet. 571, 10 L. ed. 579 2, 37, 139, 299
Ho Ngen Jung v. United States, 153 Fed. 232 188
Hood v. Maxwell, 1 W. Va. 219 32
Hope v. Hope, 8 De Gex, M. & G. 731 446
Hope, The, 1 Dod. 226 449
Hopkins v. Bell, 3 Cranch, 454, 2 L. ed. 497 9
Horn v. Lockhart, 84 U. S. 570, 21 L. ed. 657 28, 34
TABLE OF CASES CITED. xxxvii
SECTION
Horner v. United States, 143 U. S. 578, 12 Sup. Ct. Eep. 525, 36 L. ed.
269 175
Horner v. Webster, 33 N. J. L. 413 246
Hornsby v. United States, 10 Wall. 224, 19 L. ed. 900 273
Horton v. United States, 31 Ct. of Cl. 48 584
Hosmer v. Wallace, 97 U. S. 575, 24 L. ed. 1130 291
Houston v. San Francisco, 47 Fed. 339 286, 288
Howard v. Ingersoll, 17 Ala. 780 122
Howard v. Perry, 7 Tex. 259 281
Hudson v. Guestier, 4 Cranch, 293, 2 L. ed. 625 435
Huggen's Case, 2 Op. Atty. Gen. 452 298
Hughes v. Edwards, 9 Wheat. 489, 6 L. ed. 142 221, 227, 236, 240
Hughes v. Lane, 6 Tex. 289 281
x Humphrey's Administrator v. United States, Dev. Ct. of 01., sees. 678,
679 115
Hunt v. United States, 29 Ct. of Cl. 68 123
Hunt v. Warnicke, Hard. (Ky.) 61 226
Huntington v. Texas, 16 Wall. 411, 21 L. ed. 316 33
Huse v. Glover, 119 U. S. 547, 7 Sup. Ct. Eep. 315, 30 L. ed. 490 173
Hylton v. Brown, 1 Wash. C. C. 343, Fed. Gas. No. 6982 86, 91, 132
Hylton v. United States, 3 Dall. 172, 1 L. ed. 556 7
lasigi, In re, 79 Fed. 751 401, 414
Indiana v. Kentucky, 136 U. S. 479, 10 Sup. Ct. Rep. 1051, 34 L. ed. 329. . 44
Ingles v. Sailors' Snug Harbor, 28 U. S. (3 Pet.) 99, 7 L. ed. 617 469
Insurance Co. of North America v. McLimas, 28 Neb. 653, 44 N. W. 991 . . 218
Interstate Land Co. v. Maxwell Land Grant Co., 139 U. S. 569, 11 Sup. Ct.
Rep. 656, 35 L. ed. 278. 293
Erwin v. McBride, 23 U. C. Q. B. (Canada) 570 221
Irvine v. Leyh, 102 Mo. 207, 14 S. W. 717 440
Isaacs v. Richmond, 90 Va. 30, 17 S. E. 760 33
Jack Sen, In re, 36 Fed. 441, 13 Saw. 510 189
Jackson v. Adams, 7 Wend. 367 221
Jackson v. Burns, 3 Binn. (Pa.) 75 226
Jackson v. Decker, 11 Johns. 418 256
Jackson v. Lunn, 3 Johns. Gas. (N. Y.) 109 226, 256
Jackson v. Wright, 4 Johns. 75 256
James, In re, 99 Cal. 376, 37 Am. St. Rep. 62, 33 Pac. 1123 435
James and William, The, 37 Ct. of 01. 303 131
Janis v. United States, 32 Ct. of 01. 407 393
Jenkins v. Noel, 3 Stew. (Ala.) 60 221
Jenney v. Lawrens, 1 Speers, 356 221, 226
Fohnson, In re, 167 U. S. 126, 17 Sup. Ct. Rep. 735, 42 L. ed. 105 312
xxxviii TABLE OF CASES CITED.
SECTION
Johnson v. Browne, 205 U. S. 309, 27 Sup. Ct. Rep. 539, 51 L. ed. 816
178, 179, 181
Johnson v. Dalton, 1 Cow. 543, 13 Am. Dee. 564 219
Johnson v. Elkins, 1 App. Gas. (D. C.) 430 222
Johnson v. Mclntosh, 8 Wheat. 543, 5 L. ed. 681 378, 383
Johnson v. Eisk, 137 U. S. 300, 11 Sup. Ct. Eep. Ill, 34 L. ed. 683 103
Jones v. Borden, 5 Tex. 410 281
Jones v. Le Tombe, 3 Dall. 384, 1 L. ed. 647 402
Jones v. McMasters, 20 How. (U. S.) 8, 15 L. ed. 805 227, 273, 275
Jones v. Meehan, 175 U. S. 1, 32, 20 Sup. Ct. Eep. 1, 44 L. ed. 49 94, 392
Jones v. Menard, 1 Tex. 771 281, 288
Jones v. Minogue, 29 Ark. 637 223, 228
Jones v. Montes, 15 Tex. 351 273, 278
Jolly v. Hawesville, 89 Ky. 279, 12 S. W. 313 546, 554
Jost v. Jost, 1 Mackey, 487 127
Kaine 's Case, 14 How. 129, 14 L. ed. 355 343
Kaine, Ex parte, 3 Blatehf . 1, Fed. Cas. No. 7597 115
Kansas Indians, The, 72 U. S. (5 Wall.) 737, 18 L. ed. 667 170
Karrahoo v. Adams, 1 Dill. 346, Fed. Cas. No. 7614 387
Kaufman's Case, 11 Ct. of Cl. 659 584
Kaufman's Case, 96 U. S. 567, 24 L. ed. 792 584
Kay v. Watson, 17 Ohio, 27 226
Keator etc. Co. v. St. Croix, 72 Wis. 84, 7 Am. St. Eep. 850, 38 N. W. 537. 174
Keech V. Enriquez, 28 Fla, 597, 10 South. 91 288
Keith v. Clark, 7 Otto, 454? 24 L. ed. 1071 31, 140
Kelley, In re, 25 Fed. 268 352
Kelley, In re, Fed. Cas. No. 7655, 2 Low. 339 319
Kellyville Coal Co. v. Petrayis, 195 111. 215, 88 Am. St. Eep. 193, 63 N.
E. 94 215
Kemper v. Victoria, 3 Tex. 135 281
Kendall's Case, 14 Ct. of Cl. 122 587
Kendall's Case, 107 U. S. 123, 2 Sup. Ct. Eep. 277, 27 L. ed. 437 587
Kennedy v. Wood, 20 Wend. 230 226
Kennett v. Chambers, 55 U. S. (14 How.) 4-9, .14 L. ed. 321 217
Kenton v. Baroness of Pontalba, 1 Eob. 343 123
Keppel v. Petersburg E. Co., 1 Chase, 167, 14 Fed. Cas. No. 7722 32, 35
Ker v. Illinois, 119 U. S. 436, 7 Sup. Ct. Eep. 225, 30 L. ed. 421
109,311,312
Kerr v. White, 52 Ga. 362 229
Kessler v. Best, 121 Fed. 439 426
Kilpatrick v. Sisneros, 23 Tex. 113 273
Kimball v. Semple, 25 Cal. 454 292
Kingen v. Kelly, 3 Wyo. 577, 28 Pac. 40, 15 L. E. A. 193 312
TABLE OF CASES CITED. xxxix
SECTION
Kinkead v. United States, 150 U. S. 483, 14 Sup. Ct. Eep. 172, 37 L. ed.
1152 273
Kittridge v. Hebert, 9 La. Ann. 154 288
Klinger v. Missouri, 13 Wall. 257, 20 L. ed. 635 103
Knight v. United States Land Assn., 142 U. S. 184, 12 Sup. Ct. Rep. 258,
35 L. ed. 982 274, 281, 282
Knox, 23 Op. Atty. Gen. 535 363
Kobogum v. Jackson Iron Co., 76 Mich. 507, 43 N. W. 605 385
Konitzy v. Mayer, 49 N. Y. 571 443
Kopel, In re, 148 Fed. 505 342
Kro janker, In re, 44 Fed. 482 350, 353
Kull v. Kull, 37 Hun (N. Y.), 476 259
Labade v. United States, 31 Ct. of d. 205 393
Lacoste v. Odam, 26 Tex. 458 226
Lai Moy v. United States, 66 Fed. 955, 14 C. C. A. 283, 29 U. S. App.
517 189, 191
Lake View v. Rose Hill Cemetery, 70 111. 191, 22 Am. Rep. 71 213
Lamar v. Micou, 112 U. S. 453, 5 Sup. Ct. Rep. 221, 28 L. ed. 751 27
Lane, Ex parte, 6 Fed. 34 347
Langdean v. Hanes, 21 Wall. 527, 22 L. ed. 608 273
Langdon v. Blackburn, 109 Cal. 26, 41 Pac. 816 440
Langford v. United States, 101 U. S. 341, 25 L. ed. 1010 584
La Republique Francaise v. Schultz, 57 Fed. 37 99
Larreau v. Davignon, 5 Abb. Pr., N. S., 367 221, 226
Las Animas Land Grant Co. v. United States, 179 U. S. 201, 21 Sup. Ct.
Rep. 92, 45 L. ed. 153 293
Lascelles v. Georgia, 148 U. S. 541, 13 Sup. Ct. Rep. 687, 37 L. ed. 551. . 337
Lascelles v. State, 90 Ga. 362, 35 Am. St. Rep. 219, 16 S. E. 946 337
Lau Ow Bew, In re, 141 U. S. 583, 12 Sup. Ct. Rep. 43, 35 L. ed. 868 186
Lau Ow Bew, In re, 144 U. S. 47, 12 Sup. Ct. Rep. 517, 36 L. ed. 340
186, 189, 191
Laura, The, 114 U. S. 411, 5 Sup. Ct. Rep. 881, 29 L. ed. 147 80
Lavergne v. Elkins, 17 La. 220 288
Lazier v. Wescott, 26 N. Y. 146, 82 Am. Dec. 404 440
Leary v. Leary, 50 How. Pr. 122 226
Lee v. Salinas, 15 Tex. 495 227
Lee Foo v. United States, 49 Fed. 148, 1 C. C. A. 210, 7 U. S. App. 31 188
Lee Kan v. United States, 62 Fed. 914, 10 C. C. A. 669, 15 U. S. App.
516 191
Leeper v. Texas, 139 U. S. 467, 11 Sup. Ct. Rep. 579, 35 L. ed. 227 211
Leese v. Clark, 3 Cal. 17 281
Leese v. Clark, 20 Cal. 388 273, 281, 288
Legal Tender Cases, 12 Wall. 555, 20 L. ed. 287 140
Legal Tender, The, Wheat. Dig. 302 115
xl TABLE OF CASES CITED.
SECTION
Lehew v. Brummell, 103 Mo. 546, 23 Am. St. Eep. 895, 15 S. W. 765, 11
L. E. A. 828 160
Leighton v. United States, 29 Ct. of Cl. 288 93, 128
Leitensdorfer v. Webb, 20 How. 177, 15 L. ed. 891 273, 275
Lem King Dun v. United States, 49 Fed. 148, 1 C. C. A. 210 188
Lem Moon Sing v. United States, 158 U. S. 538, 15 Sup. Ct. Rep. 967,
39 L. ed. 1082 186
Lennon, Ex parte, 150 U. S. 395, 14 Sup. Ct. Eep. 123, 37 L. ed. 1121 . . 113
Leonard v. United States, 18 Ct. of Cl. 382 587
Leong Yick Dew, In re, 19 Fed. 490 191
Lewis v. Bell, 17 How. 616, 15 L. ed. 203 572
Le Eoy v. Wright, 4 Saw. 530, 15 Fed. Gas. No. 8273 288
Les Bois v. Bramwell, 4 How. 449, 11 L. ed. 1051 281
Lew Hew Bon, In re, 47 Fed. 302 191
Lew Jim v. United States, 66 Fed. 953, 14 C. C. A. 281, 29 U. S. App.
513 189, 191
License Cases, 5 How. 603, 12 L. ed. 300 239
Limited Tag, Case of, 21 Fed. 789 191
Lincoln, 1 Op. Atty. Gen. 106 472
Lincoln, 5 Op. Atty. Gen. 692 573
Lin Sing v. Washburn, 20 Cal. 534 240
Little v. Watson, 32 Me. 214 122, 277
Lobdell v. Clark, 4 La. Ann. 99 281
Lobrasciano, Matter of, 38 Misc. Eep. 415, 77 N. Y. Supp. 1040 176, 202
Lockhart v. Wills, 9 N. Mex. 263, 50 Pac. 318 293
Lockhart v. Willis, 9 N. Mex. 348, 54 Pae. 337 289
Lockwood v. Coysgarne, 3 Burr. 1676 399
Logiorato, Matter of, 34 Misc. Eep. 31, 69 N. Y. Supp. 507 202
Loney, In re, 134 U. S. 372, 10 Sup. Ct. Eep. 584, 33 L. ed. 949 353, 354
Long v. City of Neenah, 128 Wis. 40, 107 N. W. 10 551
Long v. Converse, 91 U. S. 113, 23 L. ed. 233 107
Look Tin Sing, In re, 21 Fed. 905, 10 Saw. 353 187
Los Angeles v. Pomeroy, 125 Cal. 420, 58 Pac. 69 292
Louisiana v. United States, 22 Ct. of Cl. 85 583
Louisiana v. Mayor etc. of New Orleans, 109 U. S. 285, 3 Sup. Ct. Eep.
211, 27 L. ed. 936 545
Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683, 6 Sup. Ct. Eep. 265,
29 L. ed. 510 52
Love v. Hadden, 3 Brev. 1 263
Love v. Pamplin, 21 Fed. 759 389
Ludlow v. Van Ness, 8 Bosw. (N. Y.) 178 229
Luke v. Brooklyn, 43 Barb. (N. Y.) 54 546, 552
Lum Lin Ying, In re, 59 Fed. 682 191
Lynch v. Clarke, 1 Sand. Oh. (N. Y.) 583 187, 226
Lynch v. De Bernal, 76 U. S. (9 Wall.) 315, 19 L. ed. 714 101
TABLE OF CASES CITED. xli
SECTION
Macartney v. Garbutt, 24 Q. B. D. 368 399
Macdonnell, In re, 11 Blatchf . 170, Fed. Cas. No. 8772 348, 350
Maese v. Herman, 183 U. S. 572, 22 Sup. Ct. Rep. 91, 46 L. ed. 335 293
Maguire v. Tyler, 8 Wall. 650, 19 L. ed. 320 281, 288
Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct. Rep. 1204, 32 L. ed. 283 312
Mahoney v. Van Winkle, 21 Cal. 576 292
Mali Wong Gee, In re, 47 Fed. 433 191
Maiden v. Ingersoll, 6 Mich. 372 255
Malarin v. United States, 1 Wall. 282, 17 L. ed. 594 t 292
Mali v. Hudson County Common Jailkeeper, 120 U. S. 1, 7 Sup. Ct. Rep.
385, 30 L. ed. 565 130, 355
Mannhardt v. Soderstrom, 1 Binn. (Pa.) 138 411
Manning v. French, 133 U. S. 191, 10 Sup. Ct. Rep. 260, 33 L. ed. 585. . 211
Manning v. San Jacinto Tin Co., 7 Saw. 418, 9 Fed. 726 292
Manuel v. Wulff, 152 U. S. 505, 14 Sup. Ct. Rep. 651, 38 L. ed. 532 222
Marden v. Ingersoll, 6 Mich. 373 128
Marie, The, 49 Fed. 286 212, 447
Marquez v. Frisbie, 101 U. S. 479, 25 L. ed. 802 440
Marquis de Circe 's Succession, Manning 's Unreported Cases, 412 210
Marsh v. Brooks, 8 How. 232, 12 L. ed. 1060 379
Marshal v. Railroad Co., 16 How. 314, 14 L. ed. 953 446
Marshall v. City of Buffalo, 71 N. Y. Supp. 719, 63 App. Div. 603 554
Marshall v. City of Buffalo, 176 N. Y. 545, 68 N. E. 1119 554
Marshall v. Conrad, 5 Call (Va.), 364 221, 223
Martin v. Board of Education, 42 W. Va. 514, 26 S. E. 348 160
Martin v. Hunter, 1 Wheat. 304, 4 L. ed. 97 80, 100, 108
Martin v. Waddell, 16 Pet. 367, 10 L. ed. 997 274
Martin v. Woods, 9 Mass. 377 227
Mason v. Blaireau, 2 Cranch, 240, 2 L. ed. 266 219
Massachusetts Mut. Ace. Assn. v. Dudley, 15 App. D. C. 472 458
Maxey v. O 'Connor, 23 Tex. 234 273, 278
Maxwell Land Grant Case, 121 U. S. 325, 7 Sup. Ct. Rep. 1015, 30 L.
ed. 949 293
Maxwell Land Grant Case, 122 U. S. 365, 7 Sup. Ct. Rep. 1271, 30 L. ed.
1211 293
May v. Breed, 7 Cush. 15, 54 Am. Dec. 700 435
May v. Specht, 1 Mich. 187 273
Mayor etc. New York v. Brady, 115 N. Y. 615, 22 N. E. 242 440
McArthur v. United States, 29 Ct. of Cl. 194 587
McCabe, Ex parte, 46 Fed. 363, 12 L. R. A. 589 298, 308, 344
McCarthy v. Marsh, 5 N. Y. 263 467
McClenaghan v. McClenaghan, 1 Strob. Eq. (S. C.) 295, 47 Am. Dec. 532
221, 226
McCoppin, In re, 5 Saw. 632, Fed. Cas. No. 8713 467
McCreery v. Allender, 4 Har. & McH. 409 221
xlii TABLE OF CASES CITED.
SECTION
McCreery v. Wilson, 4 Har. & McH. 412 221
McDonald v. Grand Trunk Ey. Co., 71 N. H. 448, 93 Am. St. Eep. 550,
59 L. E. A. 448, 52 Atl. 982 443
McDonald v. McCoy, 121 Cal. 55, 53 Pac. 421 292
McDonald v. Pearson, 114 Ala. 644, 21 South. 537 440
McDonnell, Case of, 11 Blatchf. 79, Fed. Gas. No. 8771 115
McElrath v. United States, 102 U. S. 426, 26 L. ed. 189 588
McGahan v. Baylor, 32 Tex. 789 226
McGee v. Doe, 9 Fla. 382 .' 288
McKay v. Campbell, 2 Saw. 118, Fed. Gas. No. 8840 187
McKay v. Garcia, 6 Ben. 556, Fed. Gas. No. 8844 411
McKinney v. Saviego, 18 How. 235, 15 L. ed. 365 226, 469
McKinsey v. Harding, 16 Fed. Gas. (No. 8866) 277, 4 N. B. E. 38 435
McKnight, Ex parte, 48 Ohio St. 594, 28 N. E. 1034, 14 L. E. A. 130 336
McLarn v. Wallace, 10 Pet. 625, 9 L. ed. 559 226
McMillan v. School Committee, 107 N. C. 609, 12 S. E. 330, 10 L. E. A.
823 160
McMillan v. Spider Lake Saw-Mill etc. Co., 115 Wis. 332, 95 Am. St. Eep.
947, 91 N. W. 979, 60 L. E. A. 589 215
McMullen v. Hodge, 5 Tex. 34 273, 281, 288
McNair v. Toler, 21 Minn. 175 227
McNeil v. Polk, 57 Cal. 323 226
McNulty v. California, 149 U. S. 648, 13 Sup. Ct. Eep. 960, 37 L. ed. 884. . 211
Meade v. United States, 9 Wall. 691, 19 L. ed. 687 132
Meader v. Norton, 11 Wall. 442, 20 L. ed. 184 291
Meakings v. Cromwell, 5 N. Y. 136 229
Megrath v. Eobertson, 1 Desaus. (S. C.) 445, 249 229, 263
Meier v. Lee, 106 Iowa, 303, 76 N. W. 712 226, 229, 249
Menendez v. Holt, 128 U. S. 514, 9 Sup. Ct. Eep. 143, 32 L. ed. 526 280
Mereide, The, 9 Cranch, 388, 3 L. ed. 769 434
Merriam v. United States, 29 Ct. of Cl. 250 584
Me-shing-go-me-sea v. State, 36 Ind. 316 ' 389
Metzger, In re, 1 Barb. 248 120
Metzger, In re, Fed. Gas. No. 9511 87, 185, 319
Metzger, In re, 1 Park. Cr. Eep. 108 308
Metzger, Matter of, 5 How. 176, 12 L. ed. 104 298
Metzger, Matter of, 5 N. Y. Leg. Obs. 83 322
Meunier, In re, [1894] 2 Q. B. 415 335
Mexican Cent. Ey. Co. v. Chantry, 136 Fed. 316, 69 C. C. A. 454 442
Mexican etc. Ey. Co. v. Jackson, 89 Tex. 107, 59 Am. St. Eep. 28, 33 S. W.
857, 31 L. E. A. 276 219
Mexico v. De Arangoiz, 5 Duer (N. Y.) , 643 399
Mick v. Mick, 10 Wend. (N. Y.) 379 227
Middleton v. Low, 30 Cal. 596 291
Middleton v. McGrew, 23 How. 45, 16 L. ed. 403 226
TABLE OP CASES CITED. xliii
SECTION
Miller v. Bronson, 50 Tex. 591 281
Miller v. Dale, 44 Cal. 578 - 292
Miller v. Dale, 92 U. S. 473, 23 L. eil. 735. 292
Miller v. Lancaster Bank, 106 U. S. 544, 1 Sup. Ct. Eep. 537, 27 L. ed.
290 107-
Miller v. United States, 11 Wall. 268, 20 L. ed. 135 434
Miller v. Van Loben Sels, 66 Cal. 341, 5 Pac. 512 411, 412
Mills v. Mills, 40 N. Y. 543, 100 Am. Dec. 535 446
Mills v. United States, 46 Fed. 738, 12 L. E. A. 673 584
Mineau, In re, 45 Fed. 188 345, 348, 360
Mining Co. v. Dickert etc. Co., 6 Utah, 196, 21 Pac. 1007, 5 L. E. A. 267 . . 383
Minnesota v. Brundage, 180 U. S. 499, 21 Sup. Ct. Eep. 455, 45 L. ed.
639 353, 354
Minnesota Canal & Power Co. v. Pratt (Minn.), 112 N. W. 395 167, 174
Minturn v. Brower, 24 Cal. 644 276, 281, 285, 288
Misch v. Eussell, 136 111. 22, 26 N. E. 528, 12 L. E. A. 125 246
Mississippi Cent. E. Co. v. State, 46 Miss. 157 33
Missouri v. Kentucky, 78 U. S. (11 Wall.) 395, 20 L. ed. 116 44
Missouri Pac. Ey. v. Fitzgerald, 160 U. S. 576, 16 Sup. Ct. Eep. 393, 40
L. ed. 540 104
Missouri Elver, Ft. S. & G. E. Co. v. Morris, 1.3 Kan. 316 391, 392
Mitchel v. United States, 9 Pet. 711, 9 L. ed. 283 132, 269, 288, 379
Mitchell's Admr. v. Commissioners of Champaign County, 9 Ohio St. &
C. P. Dec. 821 554
Mobile Cong. Church v. Morris, 8 Ala. 182 228
Mobile & O. E. Co. v. Tennessee, 153 U. S. 486, 14 Sup. Ct. Eep. 968, 38
L. ed. 793 52
Mobile Transp. Co. v. City of Mobile, 128 Ala. 335, 86 Am. St. Eep. 143,
30 South. 645, 64 L. E. A. 333 105
Mobile Transportation Co. v. Mobile, 187 U. S. 479, 23 Sup. Ct. Eep. 170,
47 L. ed. 266 105
Moffat v. United States, 112 U. S. 24, 5 Sup. Ct. Eep. 10, 28 L. ed. 623. . 440
Moletor v. Sonnen, 76 Wis. 312, 20 Am. St. Eep. 74, 44 N. W. 1100, 7
L. E. A. 818 336
Moncan, In re, 14 Fed. 44, 8 Saw. 350 191
Monroe v. Douglas, 4 Sand. Ch. 126 435
Montgomery v. Beavans, 1 Saw. 653, 17 Fed. Cas. No. 9735 281
Montgomery v. Dorion, 7 N. H. 475 221, 226
Montgomery v. Ives, 12 Smedes & M. (Miss.) 173 378
Moody v. Board of Supervisors of Niagara County, 46 Barb. (N. Y.) 659. . 551
Mooers v. White, 6 Johns. Ch. (N. Y.) 360 221, 223, 226
Moore, In re, 75 Fed. 824 , 312
Moore v. County Commissioners, 2 Wyo. 22 387
Moore v. Tisdale, 5 B. Mon. (Ky.) 352 227
Moore v. Wilson, 10 Yerg. (Tenn.) 406 264
xliv TABLE OF CASES CITED.
SECTION
Mora v. Foster, 3 Saw. 469, 17 Fed. Gas. No. 9784 291
More v. Steinbach, 127 U. S. 70, 8 Sup. Ct. Eep. 1067, 32 L. ed. 51. .. .288, 291
Morgan v. Keenan, 1 S. C. 327 34
Morris v. Lenton, 61 Neb. 537, 85 N. W. 565 458
Morris v. Missouri Pac. Ey. Co., 78 Tex. 17, 22 Am. St. Rep. 17, 14 S.
W. 228, 9 L. E. A. 349 219
Morris v. United States, 30 Ct. of Cl. 162 584
Morrison v. Watson, 154 U. S. 115, 14 Sup. Ct. Eep. 997, 38 L. ed. 929. . 211
Mott v. Smith, 16 Cal. 550 292, 458
Mound City Land etc. Assn. v. Philip, 64 Cal. 497, 2 Pac. 270 292
Muir v. Thompson, 28 S. C. 499, 6 S. E. 309 223
Mulhall v. Fallon, 176 Mass. 266, 79 Am. St. Eep. 309, 57 N. E. 386, 54
L. E. A. 934 215
Muller, In re, Fed. Cas. No. 9913 318, 322
Munford v. Wardwell, 6 Wall. 423, 18 L. ed. 756 274
Munns v. De Nemours, 3 Wash. C. C. 31, Fed. Cas. No. 9926 350
Munro v. Merchant, 28 N. Y. 9 221
Munroe v. Merchant, 26 Barb. (N. Y.) 384 256
Murdock v. Gurley, 5 Eob. (La.) 457 288
Murphy v. Eamsey, 114 U. S. 15, 5 Sup. Ct. Eep. 747, 29 L. ed. 47 469
Murray v. Fishback, 5 B. Mon. (Ky.) 403 221
Murray v. Heron, 7 Grant. Ch. (U. C.) 177 221
Muse v. Arlington Hotel, 68 Fed. 637 273, 288
Muse v. Arlington Hotel Co., 168 U. S. 430, 42 L. ed. 531, 18 Sup. Ct.
Eep. Ill 114
Musquix v. Blake, 24 Tex. 461 273
Mussey v. Pierre, 24 Me. 559 221, 227
Naylor v. Hoffman, 22 How. Pr. 510 411
Neagle, In re, 135 U. S. 1, 10 Sup. Ct. Eep. 658, 34 L. ed. 55 353, 354
Nebraska v. Iowa, 143 U. S. 359, 36 L. ed. 186 44
Neck, The, 138 Fed. 144 125, 455
Neely v. Henkel, 180 U. S. 109, 21 Sup. Ct. Eep. 302, 45 L. ed. 448
294, 307, 323, 353
Nelson, 4 Op. Atty. Gen. 201 344
Newberry v. New York, 1 Sweeny (N. Y.), 369 549, 551
Newhall v. Sanger, 92 U. S. 761, 23 L. ed. 769 273, 291
New Hampshire v. Louisiana, 108 U. S. 90, 27 L. ed. 661, 2 Sup. Ct. Eep.
183 559, 57i
New Haven etc. T. B. Co. v. Bunnell, 4 Conn. 59. 213
New Jersey v. New York, 30 U. S. 284, 8 L. ed. 127 44
Newman, In re, 79 Fed. 622 348
Newman v. Lawless, 6 Mo. 279 281
New Orleans v. Abagnatto, 62 Fed. 240, 10 C. C. A. 361, 26 L. E. A. 329,
23 U. S. App. 533 530, 545
TABLE OF CASES CITED. xlv
SECTION
New Orleans v. De Armas, 9 Pet. 224, 9 L. ed. 109 109
New Orleans Waterworks Co. v. Louisiana Sugar Eef. Co., 125 U. S. 18,
8 Sup. Ct. Rep. 741, 31 L. ed. 607 52
New York v. Dibble, 21 How. (U. S.) 366, 16 L. ed. 149 216
New York v. Eno, 155 U. S. 89, 15 Sup. Ct. Eep. 30, 39 L. ed. 80 353
New York Indians v. United States, 30 Ct. of Cl. 413 94
New York Indians v. United States, 40 Ct. of Cl. 448 393
New York Indians v. United States, 170 U. S. 22, 18 Sup. Ct. Eep. 531, 42
L. ed. 927 65, 66
Nishimura Ekin v. United States, 142 U. S. 659, 12 Sup. Ct. Bep. 338,
35 L. ed. 1149 175
Nixon v. Houillon, 20 La. Ann. 515 281, 288
Nixon v. United States, 18 Ct. of Cl. 448 584
Nolan v. Command, 11 N. Y. Civ. Proc. 295 227
Norberg v. Hillgren, 5 N. Y. Leg. Obs. 177, 7 Am. Law Rev. 418 212, 447
Norris v. City of Boston, 7 How. 472, 12 L. ed. 724 239
Norris v. Hoyt, 18 Cal. 217 222, 227
Northern P. Ey. Co. v. Amato, 144 U. S. 465, 12 Sup. Ct. Eep. 740, 36 L.
ed. 506 113
^srtJjAro Pacific Ey. Co. v. Austin, 135 U. S. 318, 10 Sup. Ct. Eep. 759,
34 L. ed. 219 211
North German Lloyd S. S. Co. v. Hedden, 43 Fed. 17 167, 169
Northwestern Fertilizing Co. v. Hyde Park, 70 111. 634 213
Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. ed. 1036. . 213
Norton, Ex parte, 44 Ala. 180 32
Norton v. General Land Office Commissioners, 2 Tex. 357 281
Nosely v. Tuthill, 45 Ala. 621, 6 Am. Eep. 710 32
Novello v. Toogood, 1 Barn. & C. 562 399
O 'Connell v. Dougherty, 32 Cal. 462 292
O 'Hanlin v. Van Kleeck, 20 N. J. L. 44 221
Ohio Life Ins. & T. Co. v. Debolt, 16 How. 416, 14 L. ed. 997 52
Oldfield v. Marriott, 10 How. 146, 13 L. ed. 364 169
Olmstead 's Appeal, 86 Pa. 284 223
Olsen v. Smith, 195 U. S. 332, 25 Sup. Ct. Eep. 52, 49 L. ed. 224 131, 204
Ondis v. Banta, 7 Kulp (Pa.), 390 227
Opel v. Shoup, 100 Iowa, 407, 69 N. W. 560, 37 L. E. A. 583 240, 248
Oregon Mtg. Co. v. Carstens, 16 Wash. 165, 47 Pac. 421, 35 L. E. A.
841 221
O 'Eeilly De Camera v. Brooke, 135 Fed. 384 117
Ornelas v. Euiz, 161 U. S. 502, 16 Sup. Ct. Eep. 689, 40 L. ed.
787 331,353,355
Orpen, In re, 86 Fed. 760 345, 350
Orr v. Hodgson, 4 Wheat. 453, 4 L. ed. 613 222, 236
Orser v. Hoag, 3 Hill (N. Y.), 79 258
xlvi TABLE OF CASES CITED.
SECTION
Ortiz v. De Benavides, 61 Tex. 60 227, 273, 278
Ortz, Ex parte, 100 Fed. 955 91
Oscanyan v. Winchester E. Arms Co., 103 U. S. 261, 26 L. ed. 539 445, 446
Osterman v. Baldwin, 6 Wall. 116, 18 L. ed. 730 221
Oteiza y Cortes v. Jacobus, 136 U. S. 330, 10 Sup. Ct. Eep. 1031, 34 L.
ed. 464 317,331
Overing v. Russell, 32 Barb. 363 221
Owings v. Norwood, 2 Har. & J. (Md.) 96 253
Owings v. Nonvood's Lessee, 5 Cranch, 344, 3 L. ed. 120 106, 253
Oyama Kenichi, In re (No. 12,579, April 8, 1898) 320
Pacific E. E. Co. v. Missouri etc. Ey. Co., 2 McCrary, 229, 12 Fed. 642 440
Page v. Foust, 89 N. C. 447 246
Palmer, In re, Fed. Cas. No. 10,679 319
Palmer v. Concord, 48 N. H. 211, 97 Am. Dec. 605 546, 553, 554
Paquete'Habana, The, 175 U. S. 677, 20 Sup. Ct. Eep. 290, 44 L. ed. 320. . 434
Parkhill, The, 18 Fed. Cas. (No. 10,755a) 1192 435
Parrott, In re, 1 Fed. 501, 6 Saw. 349 26, 198, 200
Paschal v. Dangerfield, 37 Tex. 273 281
Paschal v. Perez, 7 Tex. 348 281
Passenger Cases, The, 7 How. 283, 12 L. ed. 702 175
Patton v. Skidmore, 19 Tex. 533 281
Paul v. Chilsoquie, 70 Fed. 402 387
Paul v. Perez, 7 Tex. 338 273
Paul v. Ward, 15 N. C. 247 227
Peaslee v. Peaslee, 147 Mass. 180, 17 N. E. 510 435
Peck v. Miami County Commissioners, 4 Dill. 370, Fed. Cas. No. 10,891. . . 392
Peck v. Moody, 23 Tex. 93 281
Peck v. Young, 26 Wend. (N. Y.) 613 227
Pelton v. Platner, 13 Ohio, 217, 42 Am. Dec. 199 435
Penn v. Tollison, 26 Ark. 545 32
Pennoyer v. McConnaughy, 140 U. S. 12, 11 Sup. Ct. Eep. 702, 35 L. ed.
366 559
Pennsylvania Co. v. Chicago, 81 Fed. 317 546
Pennsylvania Hall, Matter of, 5 Pa. 204 546, 552
Pennywitt v. Foote, 27 Ohio St. 600, 22 Am. Eep. 340 32
People v. Bingham, 102 N. Y. Supp. 878, 117 App. Div. 411 342
People v. Board of Supervisors, 56 Hun, 17, 8 N. Y. Supp. 752 364, 365
People v. Board of Supervisors, 134 N. Y. 1, 31 N. E. 322 365
People v. Coleman, 4 Cal. 46, 60 Am. Dec. 586 240
People v. Cross, 135 N. Y. 540, 31 Am. St. Eep. 853, 32 N. E. 247 337, 339
People v. Curtis, 50 N. Y. 321, 10 Am. Eep. 483 36
People v. Dibble, 16 N. Y. 221 385
People v. Folsom, 5 Cal. 373 222, 226, 268
People v. Gallagher, 93 N. Y. 438, 45 Am. Eep. 232 151, 160
TABLE OF CASES CITED. xlvii
SECTION
People v. Gerke, 5 Gal. 381 240
People v. Gray, 66 Cal. 271, 5 Pac. 240 317
People v. Hannan, 9 Misc. Eep. 600, 30 N. Y. Supp. 370 336
People v. Mayor of Brooklyn, 55 Am. Dec. 288, note 240
People v. MeCreery, 34 Cal. 488 240
People v. McGowan, 77 111. 644, 20 Am. Rep. 254 467
People v. McLeod, 25 Wend. 483, 37 Am. Dec. 328 506
People v. Miller, 169 N. Y. 339, 88 Am. St. Eep. 546, 62 N. E. 418 410
People v. Naglee, 1 Cal. 249, 52 Am. Dec. 312 239, 240
People v. Potrerio & B. V. R. R. Co., 67 Cal. 166, 7 Pac. 446 174
People v. Pratt, 78 Cal. 345, 20 Pac. 731 304
People v. Rowe, 4 Park. Cr. Rep. 253 312
People v. San Francisco, 75 Cal. 388, 17 Pac. 522 274
People v. Snyder, 51 Barb. (N. Y.) 589 256
People v. Stout, 81 Hun, 336, 30 N. Y. Supp. 898 336, 339
People v. Sweetser, 1 Dak. 316, 46 N. W. 455 388
People v. Warren, 13 Misc. Rep. 615, 34 N. Y. Supp. 942 201
People v. Wasservogel, 77 Cal. 173, 19 Pac. 270 410
Peralta v. United States, 3 Wall. 434, 18 L. ed. 221 291
Perdicaris v. Charleston Gaslight Co., 1 Chase, 435, 19 Fed. Cas. No.
10,974 33
Perrin v. United States, 171 U. S. 292, 18 Sup. Ct. Rep. 861, 43 L. ed.
169 293
Perry etc. Co., Ex parte, 43 S. C. 176, 20 S. E. 980 218
Pettit v. Walshe, 194 U. S. 205, 24 Sup. Ct. Rep. 657, 48 L. ed.
938 348,351,354
Pettus v. Dawson, 82 Tex. 18, 17 S. W. 714 226
Phelps v. McDonald, 99 U. S. 298, 25 L. ed. 473 572
Phillips, 6 Op. Atty. Gen. 642 352
Phillips v. Moore, 100 U. S. 208, 25 L. ed. 603 222
Phillips v. Morina City Land & W. Assn., 124 U. S. 605, 610, 8 Sup. Ct.
Rep. 657, 31 L. ed. 588 100
Pierce v. The Alberto, Hoff. 441, 19 Fed. Cas. (No. 11,142) 633 435
Pinkerton v. Ledoux, 129 U. S. 346, 9 Sup. Ct. Rep. 399, 32 L. ed. 706 ... 293
Pino v. Hatch, 1 N. Mex. 125 288
Pintsch C. Co. v. Bergin, 84 Fed. 141 467
Pioche v. Paul, 22 Cal. Ill 292
Piper v. Richardson, 9 Met. (Mass.) 155 221
Pitcher's Case, 1 Ct. of Cl. 7 584
Pittsburgh etc. Ry. Co. v. Naylor, 73 Ohio St. 115, 112 Am. St. Rep. 701,
76 N. E. 505, 3 L. R. A., N. S., 473 215
Polk v. Ralston, 2 Humph. (Tenn.) 537 229
Pollard v. Hagan, 3 How. 212, 11 L. ed. 565 274
Pollard's Heirs v. Kibbe, 14 Pet. 353, 10 L. ed. 490 236, 273
Pong Ah Che, In re, 18 Fed. 527 189
xlviii TABLE OF CASES CITED.
SECTION
Poole v. Fleeger, 11 Pet. 185, 9 L. ed. 680 127
Potter v. Titcomb, 22 Me. 300 227
Pound v. Turck, 95 U. S. 459, 24 L. ed. 525 172
Powers v. Comly, 101 U. S. 789, 25 L. ed. 805 169
Prather v. Lexington, 13 B. Mon. (Ky.) 559, 56 Am. Dec. 585 545
Prevost v. Greenaux, 19 How. 1, 15 L. ed. 572 92, 210
Prevost 's Succession, 12 La, Ann. 577 210
Price v. United States, U. S. Cir. Ct. App., 9th Circuit (Nov. 5, 1907) ... 410
Priest v. Cummings, 16 Wend. (N. Y.) 617 227
Priest v. Cummings, 20 Wend. (N. Y.) 338 227
Prince William School Board v. Stuart, 80 Va. 81 34
Puget Sound Agricultural Co. v. Pierce County, 1 Wash. Ter. 159 273
Pugh v. Gillam, 1 Cal. 485 239
Purczell v. Smidt, 21 Iowa, 540 228
Purvis v. Harmanson, 4 La. Ann. 421 281
Quan Gin, In re, 61 Fed. 395 191
Quigley v. Birdseye, 11 Mont. 439, 28 Pac. 741 221, 222
Quinn v. Ladd, 37 Or. 261, 59 Pac. 457 227
Quock Ting v. United States, 140 U. S. 417, 11 Sup. Ct. Eep. 733, 35 L.
ed. 501 188
Eace Horse, In re, 70 Fed. 607 93, 389, 391, 392
Eacouillat v. Sansevain, 32 Cal. 376 222, 226
Eamires v. Kent, 2 Cal. 558 222, 226
Eamsay v. United States, 21 Ct. of Cl. 443 584
Eandall v. Jaques, 20 'Fed. Cas. No. 11,553 222
Eandolph, 1 Op. Atty. Gen. 25 573
Eand v. State, 65 N. C. 194, 6 Am. Eep. 741 33
Eateau v. Bernard, 3 Blatchf . 244, 20 Fed. Cas. No. 11,579 227
Eavesies v. United States, 21 Ct. of Cl. 243 587
Eay v. McCulloeh, 1 N . C. (N. C. Conf.) 492 261
Eay v. Thompson, 43 Ala. 434, 94 Am. Dec. 696 32
Eaymond v. Eaymond, 83 Fed. 722, 55 U. S. App. 92, 28 C. C. A. 38 385
Bead v. Eead, 5 Call (Va.), 160 226
Eeal de Dolores Del Oro v. United States, 175 U. S. 71, 20 Sup. Ct. Eep.
17, 44 L. ed. 76 293
Eeal Estate Sav. Bank's Case, 16 Ct. of Cl. 335 584
Eeal Estate Sav. Bank's Case, 104 U. S. 728, 26 L. ed. 908 584
Eeclamation District No. 551 v. Eunyon, 117 Cal. 164, 49 Pae. 131 413
Eeed v. Johnson, 27 Wash. 55, 67 Pac. 386, 57 L. E. A. 404 446
Eeed v. Stanly, 89 Fed. 433 440
Eeese v. Waters, 4 Watts & S. (Pa.) 145 227
Eegents v. Williams, 9 Gill & J. 365, 31 Am. Dec. 72 213
Eegina v. Anderson, 11 Cox C. C. 198, L. E. 1 C. C. 161 129
TABLE OF CASES CITED. xlix
SECTION
Eegina v. Cunningham, Bell C. C. 72, 8 Cox C. C. 104 129
Eegina v. Keyn, 13 Cox C. C. 403 129
Eeichart v. Felps, 6 Wall. 160, 18 L. ed. 849 94
Reiner, In re, 122 Fed. 110 317
Eeinitz, In re, 39 Fed. 206, 4 L. E. A. 236 336
Eeloj Cattle Co. v. United States, 184 U. S. 624, 22 Sup. Ct. Eep. 499,
46 L. ed. 721 293
Renfrew v. United States, 3 Okla. 170, 41 Pac. 91 388
Eenlund v. Commodore Min. Co., 89 Minn. 47, 99 Am. St. Eep. 534, 93 N.
W. 1057 215
Eenner v. Miiller, 57 How. Pr. (N. Y.) 229 . 226
Eespublica v. De Longchamps, 1 Dall. (Pa.) Ill, 1 L. ed. 59 298, 434
Respublica v. Gordon, 1 Dall. (Pa.) 233, 1 L. ed. 115 262
Rex v. Governor of Holloway Prison, 87 L. T. 332, 71 L. J. K. B. 935 356
Reynolds v. West, 1 Cal. 326 276, 288
Rheim v. Robbins, 20 Iowa, 45 226
Rhode Island v. Massachusetts, 12 Pet. 657, 9 L. ed. 1233, 1260 44, 127
Rice v. Ames, 180 U. S. 371, 21 Sup. Ct. Rep. 406, 45 L. ed. 577
344, 345, 354
Eichardson v. Stowe, 102 Mo. 44, 14 S. W. 812 440
Richmond v. Milne, 17 La. 312, 36 Am. Dee. 613 227, 228, 229
Rico v. Spence, 21 Cal. 504 281, 285
Rio Ariba Land & Cable Co. v. United States, 167 U. S. 298, 17 Sup. Ct.
Eep. 875, 42 L. ed. 175 283, 289
Eitchie v. McMullen, 159 U. S. 235, 16 Sup. Ct. Eep. 171, 40 L. ed. 133 440
Eixner, Succession of, 48 La. Ann. 563, 19 South. 601, 32 L. R. A. 189 . . 210
Robasse, Succession of, 47 La. Ann. 1452, 49 Am. St. Rep. 433, 17 South.
867 203, 221
Robasse, Succession of, 49 La. Ann. 1413, 22 South. 767 210
Robb v. Connolly, 111 U. S. 624, 4 Sup. Ct. Rep. 544, 28 L. ed. 542 . . 353, 354
Roberts v. City of Boston, 5 Gush. 198 151, 160
Roberts v. Dunsmuir, 75 Cal. 203, 16 Pac. 782 218
Roberts v. M. K. etc. Railway Co., 43 Kan. 106, 22 Pac. 1007 379, 383
Robertson v. Miller, 1 Brock (U. S.), 466, 20 Fed. Gas. No. 11,926 221
Eobinson, In re, 29 Neb. 138, 26 Am. St. Rep. 379, 45 N. W. 268, 8 L. R.
A. 309 336
Robinson v. Greenville, 42 Ohio St. 629, 51 Am. Rep. 857 545
Robson v. The Huntress, 2 Wall. Jr. 59, Fed. Gas. No. 11,971 451
Roche v. Washington, 19 Ind. 56, 81 Am. Dec. 378 387
Rogers v. The Amado, Newb. 400, 20 Fed. Gas. No. 12,005 449
Romano v. Capital City Brick Co., 125 Iowa, 591, 106 Am. St. Rep. 323,
101 N. W. 437 215
Ropes v. Clinch, 8 Blatchf. 304, Fed. Gas. No. 12,041 169, 176
Rose v. Himely, 4 Cranch, 241, 2 L. ed. 608 434
Boss, Ex parte, 2 Bond. 252, Fed. Gas. No. 12,069 352
1 TABLE OF CASES CITED.
SECTION
Ross, In re, 140 U. S. 463, 11 Sup. Ct. Rep. 897, 35 L. ed. 581 99, 140
Ross v. Mclntyre, 140 U. S. 453, 11 Sup. Ct. Rep. 987, 35 L. ed. 581 99, 140
Roth, In re, 15 Fed. 506 347
Roth v. Roth, 104 111. 46, 44 Am. Rep. 84 435
Roussin v. Parks, 8 Mo. 539 277
Rowe, In re, 77 Fed. 165, 23 C. C. A. 103, 40 U. S. App. 516 336
Royall, Ex parte, 117 U. S. 241, 6 Sup. Ct. Rep. 734, 29 L. ed. 868 . . 353, 354
Rubeck v. Gardner, 7 Watts (Pa.), 455 228
Rush v. Casey, 39 Cal. 339 291
Russell v. Maxwell Land Grant Co., 158 U. S. 253, 15 Sup. Ct. Rep. 827,
39 L. ed. 971 293
Rutledge v. Krauss, 73 N. J. L. 397, 63 Atl. 988 348
Sabriego v. White, 30 Tex. 576 273, 278
Sagory v. Wisseman, 2 Ben. 240, Fed. Cas. No. 12,217 411, 412
Sala, Succession of, 50 La. Ann. 1009, 24 South. 674 210
Salisbury v. Washington, 22 Misc. Rep. 41, 48 N. Y. Supp. 122 549, 551
Salmon v. Symonds, 30 Cal. 301 292
Salmon!, The, 29 Fed. 534 212, 448
Sanborn v. Vance, 69 Mich. 226, 37 N. W. 273 276
Sanchez v. Gonzales, 11 Mart. (O. S.) 207 288
Sanders v. State, 60 Ga. 126 554
Sands v. Lynham, 27 Gratt. (Va.) 291, 21 Am. Rep. 348 221, 228
San Francisco v. Le Roy, 138 U. S. 656, 11 Sup. Ct. Rep. 364, 34 L. ed.
1096 274
San Francisco v. United States, 4 Saw. 553, 21 Fed. Cas. No. 12,316 292
San Pedro etc. Co. v. United States, 146 U. S. 120, 13 Sup. Ct. Rep. 94.
36 L. ed. 912 292
Santa Clara Min. Assn. v. Quicksilver Min. Co., 8 Saw. 330, 17 Fed. 657 . . 292
Sartori v. Hamiltoii, 13 N. J. L. 107 411
Saxlehner v. Eisner etc. Co., 88 Fed. 61, 91 Fed. 536, 539, 63 U. S. App.
139, 145, 33 C. C. A. 291 280
Sayward v. Denny, 158 U. S. 180, 15 Sup. Ct. Rep. 777, 39 L. ed. 941 113
Scanlan v. Wright, 13 Pick. 523, 25 Am. Dec. 344 221, 226, 227
Scharpf v. Schmidt, 172 111. 255, 50 N. E. 182 227, 247
Scheurer v. Columbia etc. Co., 11 Saw. 575, 27 Fed. 174 174
Schiellein v. Kings County, 43 Barb. (N. Y.) 490 549, 551
Schierling v. United States, 23 Ct. of Cl. 361 . 587
Schillinger v. United States, 155 U. S. 163, 15 Sup. Ct. Rep. 85, 39 L. ed.
108 584
Schmitt v. Giovanari, 43 Cal. 617 292
Schooner Exchange v. McFaddon, 7 Cranch, 116, 3 L. ed. 287 333, 399
Schooner Sophie, The, 6 Rob. Adm. 138 115
Schultze v. Schultze, 144 111. 290, 36 Am. St. Rep. 432, 33 N. E. 201, 19
L. R. A. 20 227, 245, 246, 247
TABLE OF CASES CITED. li
SECTION
Schuyler Nat. Bank v. Bollong, 150 U. S. 88, 14 Sup. Ct. Rep. 25, 37 L.
ed. 1009 211
Scott v. Hobe, 108 Wis. 239, 84 N. W. 181 402
Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. Rep. 1108, 38 L. ed. 896 435
Scottish Union etc. Ins. Co. v. Herriott, 109 Iowa, 606, 80 N. W. 665 296
Scruggs v. Huntsville, 45 Ala. 222 32
Sebben v. Trezevant, 3 Desaus. (S. C.) 213 226
Sequestration Cases, 30 Tex. 689, 98 Am. Dec. 494 33
Seton v. Hoyt, 34 Or. 272, 75 Am. St. Rep. 643, 55 Pac. 968, 43 L. R. A.
635 580
Shanks v. Dupont, 3 Pet. 242, 7 L. ed. 666 227, 236
Sharon v. Hill, 24 Fed. 731 410
Shaw v. Kellogg, 170 U. S. 312, 18 Sup. Ct. Rep. 632, 42 L. ed. 1050 293
Sheaffe v. O'Neil, 1 Mass. 256 221, 226
Sheazle, Matter of, Fed. Gas. No. 12,734, 1 Wood. & M. 66 298, 308
Shepard v. Northwestern Life Ins. Co., 40 Fed. 341 87
Sherman v. McCarthy, 57 Cal. 507 292
Ship Adolph, The, 1 Curt. 89, Fed. Cas. No. 86 451
Shively v. Bowlby, 152 U. S. 50, 14 Sup. Ct. Rep. 567, 38 L. ed. 350 378
Shivers v. Wilson, 5 Har. & J. (Md.) 130, 9 Am. Dec. 497 227
Shong Toon, In re, 21 Fed. 386 191
Shortridge v. Macon, 1 Chase, 136, 22 Fed. Cas. No. 12,812 32
Siemssen v. Bofer, 6 Cal. 250 226, 227, 240
Silver Lake Bank v. North, 4 Johns. Ch. (N. Y.) 370 227
Simmerman v. Nebraska, 116 U. S. 54, 6 Sup. Ct. Rep. 333, 29 L. ed. 535. 104
Sing Lee, In re, 54 Fed. 334 191
Sistare v. Sistare, 2 Root (Conn.), 468 227
Slater v. Nason, 15 Pick. (Mass.) 345 228
Slaughter-house Cases, 83 U. S. (16 Wall.) 36, 21 L. ed. 394 213
Slidell v. Grandjean, 111 U. S. 412, 4 Sup. Ct. Rep. 475, 28 L. ed. 321 273
Smith v. Gibson, 83 Ala. 284, 3 South. 321 218
Smith v. Maryland, 6 Cranch, 286, 3 L. ed. 225 108
Smith v. State, 5 Tex. 397 288
Smith v. Stevens, 10 Wall. 321, 19 L. ed. 933 94
Smith v. Turner, 7 How. 472, 12 L. ed. 724 239
Smith v. United States, 10 Pet. 326, 9 L. ed. 442 132
Smith v. Zaner, 4 Ala. 99 222, 226, 228
Smyth v. New Orleans Canal Co., 93 Fed. 899, 35 C. C. A. 646 288
Smyth v. Smyth, 8 Ch. Div. 561 246
Snell v. Railway Co., 78 Iowa, 94, 42 N. W. 590 382
Society for Propagation of the Gospel v. Town of New Haven, 8 Wheat.-
464, 5 L. ed. 662 132,* 221, 236
Society etc. v. Wheeler, 2 Gall (U. S.), 105, 22 Fed. Cas. No. 13,156... 221
Solomon v. Kingston, 24 Hun (N. Y.), 562 549, 551, 554
Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. Rep. 730, 28 L. ed. 1145. . 213
Hi TABLE OF CASES CITED.
SECTION
Soto v. Kroder, 19 Gal. 87 288, 292
Soulard v. United States, 4 Pet. 511, 7 L. ed. 938 132, 269, 274, 276
Southampton v. Mecox Co., 116 N. Y. 7, 22 N. E. 389 382
South Boston Iron Works v. United States, 34 Ct. of Cl. 174 587
Southern B. & L. Assn. v. Norman, 98 Ky. 294, 56 Am. St. Eep. 367, 32
S. W. 952, 31 L. K. A. 41 240
Southern Pacific E. Co. v. United States, 38 Fed. 55 587
Spann v. United States, 21 Ct. of Cl. 267 587
Sparkman v. Porter, 1 Paine, 471, Fed. Cas. No. 7143 382
Spies, Ex parts, 123 U. S. 131, 8 Sup. Ct. Eep. 21, 31 L. ed. 80 211
Spratt v. Spratt, 4 Pet. 408, 7 L. ed. 902 467
Spring Valley Coal Co. v. City of Spring Valley, 65 HI. App. 571 548, 549
Spring Valley Coal Co. v. City of Spring Valley, 96 111. App. 230
548,549,554
Sprott v. United States, 87 U. S. 459, 22 L. ed. 371 29
Stamm v. Bostwick, 122 N. Y. 48, 25 N. E. 233, 9 L. E. A. 597 223
Stamm v. Bostwick, 40 Hun, 35 * 258
Stark v. Chesapeake Ins. Co., 7 Cranch, 420, 3 L. ed. 391 467
State v. Boston etc. E. Co., 25 Vt. 433 221
State v. Brewster, 7 Vt. 118 312
State v. Brown, 69 Ind. 95, 35 Am. Eep. 210 554
State v. Campbell, 53 Minn. 356, 55 N. W. 554, 21 L. E. A. 172 385
State v. Columbus etc. E. Co., 48 Fed. 628 559
State v. De La Foret, 2 Nott & M. 217 399
State v. District Board, 76 Wis. 207, 20 Am. St. Eep. 58, 44 N. W. 977,
7 L. E. A. 340 174
State v. Doxtater, 47 Wis. 287, 2 N. W; 443 216, 385
State v. Foreman, 8 Yerg. (Tenn.) 256 383
State v. Fosdick, 21 La. Ann. 256 213
State v. Glover, 112 N. C. 898, 17 S. E. 526 337
State v. Hall, 40 Kan. 341, 10 Am. St. Eep. 202, 19 Pac. 920 336
State v. Hayward, 3 Eich. 389 213'
State v. Jackson, 36 Fed. 258, 1 L. E. A. 370 312
State v. Leidigh, 47 Neb. 132, 66 N. W. 309 337
State v. Macdonald, 24 Minn. 59 467
State v. Maryland Institute, 87 Md. 643, 41 Atl. 126 160
State v. McCann, 21 Ohio St. 198 160
State v. Patterson, 116 Mo. 516, 22 S. W. 698 337
State v. Eoss, 21 Iowa, 467 312
State v. Eowe, 104 Iowa, 327, 73 N. W. 834 336, 342
State v. Sais, 47 Tex. 307 288
State v. Simmons, 39 Kan. 262, 18 Pac. 177 312
State v. Smith, 70 Cal. 153, 12 Pac. 121 227
State v. Spiegel, 111 Iowa, 701, 83 N. W. 722 338
State v. Stearns, 72 Minn. 200, 75 N. W. 210 52
TABLE OF CASES CITED. liii
SECTION
State v. Stoll, 17 Wall. 425, 21 L. ed. 654 '. 184
State v. The Constitution, 42 Cal. 578, 10 Am. Eep. 303 190
State v. Tilghman, 14 Iowa, 474 225
State v. Vanderpool, 39 Ohio St. 273, 48 Am. Rep. 431 336, 337
State v. Wilf orth, 74 Mo. 528, 41 Am. Rep. 330 213
Stearns v. Minnesota, 179 U. S. 223, 21 Sup. Ct. Rep. 73, 45 L. ed. 162. .52, 53
Steel v. St. Louis Smelt. & Ref. Co., 106 U. S. 447, 1 Sup. Ct. Rep. 389,
27 L. ed. 226 440
Steinbach v. Moore, 30 Cal. 507 281, 285
Steinback v. Perkins, 58 Cal. 86 292
Stephens v. Cherokee Nation, 174 U. S. 445, 19 Sup. Ct. Rep. 722, 43 L.
ed. 1041 375, 376
Sternaman v. Peck, 80 Fed. 883, 26 C. C. A. 214 356
Sternaman v. Peck, 83 Fed. 690, 28 C. C. A. 377 310
Stevenson v. Bennett, 35 Cal. 432 281
Stevenson v. Dunlap, 7 T. B. Mon. (Ky.) 134 228
Stevenson v. Fain, 116 Fed. 147, 53 C. C. A. 467 50
Stewart v. Kahn, 11 Wall. 507, 20 L. ed. 179 268
Stewart v. Linton, 204 Pa. 207, 53 Atl. 744 458
St. Louis etc. Ry. Co. v. McCormick, 71 Tex. 660, 9 S. W. 540, 1 L. R. A.
804 219
St. Luke's Hospital v. Barclay, 3 Blatchf. 259, Fed. Gas. No. 12,241 411
Stockton v. Williams, 1 Doug.(Mich.) 546 378
Stockton v. Williams, Walk. Ch. 120 115
Stokes v. Dawes, 4 Mason (U. S.), 268, 23 Fed. Gas. No. 13,477 221
Stokes v. O 'Fallen, 2 Mo. 32 227
Stone v. United States, 164 U. S. 380, 17 Sup. Ct. Rep. 71, 41 L. ed. 477. . 590
Stone v. United States, 167 U. S. 178, 17 Sup. Ct. Rep.. 778, 42 L. ed.
127 218
Stoneroad v. Stoneroad, 158 U. S. 248, 15 Sup. Ct. Rep. 822, 39 L. ed.
969 282, 286, 289
Stotesburg v. United States, 23 Ct. of Cl. 285 584
Stovall v. United States, 26 Ct. of Cl. 240 587
Strachan v. District of Columbia, 20 Ct. of Cl. 484 583
Street v. New Orleans, 32 La. Ann. 577 554
Strobel's Estate, In re, 39 N. Y. Supp. 169, 5 App. Div. 621 99, 259
Strother v. Lucas, 12 Pet. 410, 9 L. ed. 1137 273, 274, 275, 288
Stuart v. Laird, 1 Cranch, 299, 2 L. ed. 115 80
Stupp, In re, 11 Blatchf. 124, Fed. Cas. No. 13,562 309
Sturges v. Collector, 12 Wall. 19, 20 L. ed. 255 169
Sturgis v. Slacum, 35 Mass. (18 Pick.) 36 202
Sullivan 's Case, 1 Op. Atty. Gen. 509 298
Sullivan v. Lumsden, 118 Cal. 668, 50 Pac. 778 440
Sunol v. Hepburn, 1 Cal. 255 288
Sutliff v. Forgey, 1 Cow. (N. Y.) 89 227
liv TABLE OF CASES CITED.
SECTION
Swat v. United States, Hoffm. Land. Cas. 230, 23 Fed. Gas. No. 13,680 291
Swift v. Herrera, 9 Tex. 263 273, 288
Sybrandt v. United States, 19 Ct. of Cl. 461 584
Talton v. Mayes, 163 U. S. 383, 16 Sup. Ct. Eep. 986, 41 L. ed. 197 385
Tameling v. United States Freehold etc. Co., 93 U. S. 644, 23 L. ed.
998 281,293
Taney, 2 Op. Atty. Gen. 482 363
Taunton v. Taylor, 116 Mass. 254 213
Taylor, In re, 118 Fed. 196 310
Taylor v. Benham, 46 U. S. (5 How.) 233, 12 L. ed. 130 221, 226
Taylor v. Commonwealth, 29 Ky. Law Eep. 714, 96 S. W. 440 339
Taylor v. Escadon, 40 Cal. 428 291
Taylor v. Morton, 2 Curt. 454, Fed. Cas. No. 13,799 94, 168, 169, 176
Taylor v. Sharp, 108 N. C. 377, 13 S. E. 138 218
Taylor v. Thomas, 22 Wall. 479, 22 L. ed. 789 33
Telford v. Brinkerhoff, 163 111. 433, 45 N. E. 157 440
Tellefsen v. Fee, 168 Mass. 188, 60 Am. St. Eep. 379, 46 N. E. 562, 45
L. E. A. 481 212, 447, 448
Terlinden v. Ames, 184 U. S. 270, 22 Sup. Ct. Eep. 484, 46 L. ed.
534 96, 298, 299, 345, 353, 356, 357
Territory v. Cox, 6 Dak. 521 389
Teschemacher v. Thompson, 18 Cal. 11, 79 Am. Dec. 151 274
Texas v. White, 7 Wall. 700, 19 L. ed. 227 25, 33
Texas etc. Ey. Co. v. Eichards, 68 Tex. 375, 4 S. W. 627 219
Thebo v. Choctaw Tribe of Indians, 66 Fed. 372, 13 C. C. A. 519 392
Theobolds v. Duffoy, 9 Mod. 104 221
Thingvalla Line v. 'United States, 24 Ct. of Cl. 255 131
Thomas, In re, 12 Blatchf . 370, Fed. Cas. No. 13,887 96, 244
Thomas v. City of Eichmond, 12 Wall. 349, 20 L. ed. 453 33, 34
Thomas v. Gay, 169 U. S. 271, 18 Sup. Ct. Eep. 342, 42 L. ed. 743 171
Thomas v. King, 95 Tenn. 70, 31 S. W. 985 435
Thomas v. Eichmond, 12 Wall. 357, 20 L. ed. 453 33, 34
Thompson v. Doaksum, 68 Cal. 593, 10 Pac. 199 273, 281, 288, 383
Thompson v. Los Angeles Farming etc. Co., 180 U. S. 72, 21 Sup. Ct. Eep.
289, 45 L. ed. 432 281, 288
Thompson, Succession of, 9 La. Ann. 96 202, 221
Thompson v. Thompson, 91 Ala. 595, 8 South. 419, 11 L. E. A. 445 435
Tibbitts v. Ah Tong, 4 Mont. 536, 2 Pac. 759 221
Tiburcio Parrott, In re, 6 Saw. 349, 1 Fed. 481 198, 200
Tinn v. U. S. District Attorney, 148 Cal. 773, 113 Am. St. Eep. 354, 84
Pac. 152 467
Tivnam, In re, 5 Best & S. 645 330
Tobin v. Walkinshaw, McAll. 151, 23 Fed. Cas. No. 14,069 288
Tom, The, 29 Ct. of Cl. 6« 123
TABLE OF CASES CITED. Iv
SECTION
Tom, The, 39 Ct. of 01. 290 66, 125
Tom Mun, In re, 47 Fed. 722 191
Tong Ah Ghee, In re, 23 Fed. 441 189
Tong Wah Sick, In re, 36 Fed. 440, 13 Saw. 497 189
Tool Co. v. Norris, 2 Wall. 45, 17 L. ed. 868 446
Torlade d ' Azarnbuja v. Pereira, 1 Miles, 366 395
Town v. De Haven, 5 Saw. 149, Fed. Cas. No. 14,113 278, 281
Townsend v. Greeley, 5 Wall. 335, 18 L. ed. 547 291
Trenier v. Stewart, 101 U. S. 797, 25 L. ed. 1021 288
Trenton, The, 4 Fed. 657 435
Trezevant v. Osborn, 3 Brev. (S. C.) 29 226
Trimble v. Smithers, 1 Tex. 790 273, 278, 281
Trimbles v. Harrison, 1 B. Mon. (Ky.) 140 226, 251
Tripp v. Spring, 5 Saw. 209, 24 Fed. Cas. No. 14,180 274, 292
Trustees "of University v. Miller, 14 N. C. (3 Dev.) 188 221
Tsu Tse Me, In re, 81 Fed. 565 197
Tucker v. Alexandroff, 183 U. S. 424, 22 Sup. Ct. Rep. 195, 46 L. ed.
264 116, 117, 299, 333, 367
Tucker v. Burris, 13 La. Ann. 614 281
Tuffree v. Polhemus, 108 Cal. 670, 41 Pac. 808 285, 286, 288
Tully, In re, 20 Fed. 812 318
Tung Yeong, In re, 19 Fed. 185, 9 Saw. 620 176, 189, 191
Turner v. American Baptist Missionary Union, 5 McLean, 347, Fed. Cas.
No. 14,251 185
Turner v. Baptist Union, 5 McLean, 344, 25 Fed. Cas. No. 14,250 85, 87
Turner v. Donnelly, 70 Cal. 604, 12 Pac. 469 292
Two Portuguese Seamen, Case of, 2 Op. Atty. Gen. 559 298
Uhlig v. Garrison, 2 Dak. Ter. 96, 2 N. W. 255 389
Underbill v. City of Manchester, 45 N. H. 214 552, 554
United States v. Ah Fawn, 57 Fed. 591 191
United States v. Alaska Assn., 79 Fed. 156 379
United States v. American Sugar Eef. Co., 202 U. S. 563, 26 Sup. Ct.
Eep. 717, 50 L. ed. 1149 88, 89, 90
United States v. Amistead, 15 Pet. 518, 10 L. ed. 826 117
United States v. Arredondo, 6 Pet. 738, 8 L. ed. 547
: 2, 86, 91, 132, 140, 275, 288
United States v. Auger, 153 Fed. 671 381
United States v. Auguisola, 1 Wall. 352, 17 L. ed. 613 125
United States v. Avedondo, 6 Pet. 758, 8 L. ed. 547 61
United States v. Baca, 184 U. S. 653, 22 Sup. Ct. Eep. 541, 46 L. ed.
733 281, 293
United States v. 356 Bales of Cotton, 1 Pet. 512, 7 L. ed. 255 267
United States v. Barber, 74 Fed. 484, 20 C. C. A. 616, 41 U. S. App. 424. 580
United States v. Barnaby, 51 Fed. 23 . 386
Ivi TABLE OF CASES CITED.
SECTION
United States v. Bayard, 127 U. 8. 251, 8 Sup. Ct. Eep. 1156, 32 L. ed.
159 579
United States v. Benner, Fed. Gas. No. 14,568, Baldw. 234 395, 400
United States v. Borcherling, 185 U. S. 223, 22 Sup. Ct. Rep. 607, 46 L.
ed. 884 . 583, 584
United States v. Boyd, 68 Tex. 580 386
United States v. Boyd, 83 Fed. 554, 42 U. S. App. 637, 27 C. C. A.
592 388, 389
United States v. Bridleman, 7 Saw. 251, 7 Fed. 902 171
United States v. Burdick, 1 Dak. 143, 46 N. W. 573 388
United States v. Burr, 159 U. S. 78, 15 Sup. Ct. Rep. 1002, 40 L. ed. 82 ... 90
United States v. Camou, 171 U. S. 277, 18 Sup. Ct. Rep. 855, 43 L. ed.
163 ! 293
United States v. Camou, 184 U. S. 572, 22 Sup. Ct. Rep. 505, 46 L. ed.
694 293
United States v. Castant, 12 How. 437, 13 L. ed. 1056. 288
United States v. Castillero, 2 Black, 17, 17 L. ed. 360 291
United States v. Catheart, 1 Bond, 556, 25 Fed. Cas. No. 14,756 32
United States v. Certain Property, 1 Ariz. 40, 25 Pac. 520 388
United States v. Chaves, 159 U. S. 452, 16 Sup. Ct. Rep. 57, 40 L. ed.
215 273, 274
United States v. Chavez, 175 U. S. 509, 20 Sup. Ct. Rep. 159, 44 L. ed.
255 293
United States v. Chew Cheong, 61 Fed. 200 191
United States v. Chin Quong Look, 52 Fed. 203 189
United States v. Chong Sam, 47 Fed. 878 191
United States v. Chung Fung Sun, 63 Fed. 261 191
United States v. Clarke, 16 Pet. 232, 10 L. ed. 947. . 273, 278, 288
United States v. Cleveland etc. Cattle Co., 33 Fed. 323 293
United States v. Conway, 175 U. S. 60, 20 Sup. Ct. Rep. 13, 44 L. ed.
72 292, 293
United States v. Cook, 19 Wall. 591, 22 L. ed. 210 380
United States v. Cooper, Whart. St. Tr. 659, Fed. Cas. No. 14,865 318
United States v. Covilland, 1 Black, 339, 17 L. ed. 40 292
United States v. Craig, 28 Fed. 795 175
United States v. D'Auterieve, 15 How. 14, 14 L. ed. 580 288
United States v. D'Auterieve, 101 U. S. 700, 25 L. ed. 869 288
United States v. Davis, 131 U. S. 39, 9 Sup. Ct. Rep. 657, 33 L. ed. 93. . 590
United States v. Davis, Fed. Cas. No. 14,932, 2 Sum. 482 308
United States v. Diekelman, 92 U. S. 520, 23 L. ed. 742 129, 557
United States v. Dan On, 49 Fed. 569 191
United States v. Douglas, 17 Fed. 634 191
United States v. Ducros, 15 How. 38, 14 L. ed. 591 288
United States v. Earl, 9 Saw. 82, 17 Fed. 77 388
United States v. Eaton, 169 U. S. 331, 18 Sup. Ct. Rep. 374, 42 L. ed.
767 . . 397
TABLE OF CASES CITED. Ivii
SECTION
United States v. Ewing, 140 U. S. 142, 11 Sup. Ct. Rep. 743, 35 L. ed.
388 587
United States v. Fitch, 70 Fed. 578, 17 C. C. A. 233 587
United States v. Fletcher, 47 U. S. 664, 13 Sup. Ct. Rep. 434, 37 L. ed.
322 587
United States v. Flint, 4 Saw. 42, 25 Fed. Cas. No. 15,121 273, 281
United States v. Flynn, 1 Dill. 452, Fed. Cas. No. 15,124 388
United States v. Fossatt, 21 How. 445, 16 L. ed. 186 288, 291, 292
United States v. 43 Gallons of Whisky, 93 U. S. 188, 23 L. ed.
846 139, 185, 388
United States v. Gardner, 133 Fed. 285, 66 C. C. A. 663 381
United States v. Gaynor, L. R. App. Cas. 128 356
United States v. Gee Lee, 50 Fed. 271, 1 C. C. A. 516, 7 U. S. App. 183. .. 189
United States v. Gleason, 78 Fed. 397 467
United States v. Gleeson, 124 U. S. 255, 8 Sup. Ct. Rep. 502, 31 L. ed. 421. 590
United States v. Great Fall Mtg. Cfc., 112 U. S. 645, 5 Sup. Ct. Rep. 306,
28 L. ed. 846 ,. . . 584
United States v. Green, 185 U. S. 256, 22 Sup. Ct. Rep. 640, 40 L. ed.
898 293
United States v. Greene, 136 Fed. 766 : 347
United States v. Gue Lin, 176 U. S. 459, 20 Sup. Ct. Rep. 415, 44 L. ed.
544 186
United States v. Hancock, 12 Saw. 389, 30 Fed. 856 440
United States v. Harsha, 172 U. S. 567, 19 Sup. Ct. Rep. 294, 43 L. ed.
556 590
United States v. King Quong Chow, 53 Fed. 233 191
United States v. Holliday, 3 Wall. 407, 18 L. ed. 186 388, 389
United States v. Home Ins. Co., 22 Wall. 103, 22 L. ed. 816 34
United States v. Jung Ah Lung, 124 U. S. 621, 8 Sup. Ct. Rep. 663, 31
L. ed. 591 189, 191
United States v. Ju Toy, 198 U. S. 253, 25 Sup. Ct. Rep. 644, 49 L. ed.
1040 192
United States v. Kagama, 118 U. S. 379, 6 Sup. Ct. Rep. 1111, 30 L. ed.
230 385, 390, 391
United States v. Kelly, 89 Fed. 946, 32 C. C. A. 441 - 590
United States v. King, 3 How. 773, 11 L. ed. 824 281, 288
United States v. King, 7 How. 883, 11 L. ed. 829 288
United States v. Knox, 128 U. S. 230, 9 Sup. Ct. Rep. 63, 32 L. ed. 465. .. 587
United States v. La Abra Silver Min. Co., 29 Ct. of Cl. 432 563
United States v. La Jeune Eugenie, 26 Fed. Cas. No. 15,551, 2 Mason,
409 434
United States v. Laverty, 3 Mart. (La.) 733, Fed. Cas. No. 15,569a 469
United States v. Lee Hoy, 48 Fed. 825 191
United States v. Lee Yen Tai, 185 U. S. 213, 22 Sup. Ct. Rep. 629, 46
L. ed. 878 178, 180, 182
United States v. Lee Yung, 63 Fed. 520 189
Iviii TABLE OF CASES CITED.
SECTION
United States v. Liddle, Fed. Gas. No. 15,598, 2 Wash. C. C. 205 396
United States v. Loo Way, 68 Fed. 475 191
United States v. Lucero, 1 N. Mex. 429 277
United States v. Lynde, 11 Wall. 633, 20 L. ed. 230 132
United States v. Martinez, 184 U. S. 441, 22 Sup. Ct. Kep. 422, 46 L. ed.
632 293
United States v. McBratney, 104 U. S. 623, 26 L. ed. 870 171
United States v. McCrory, 91 Fed. 295, 33 C. C. A. 515 588
United States v. McCullagh, 13 How. 216, 14 L. ed. 118 288
United States v. Minor, 26 Fed. 752 440
United States v. Minor, 114 U. S. 233, 5 Sup. Ct. Eep. 836, 29 L. ed. 110. 440
United States v. Morano, 1 Wall. 400, 17 L. ed. 633 132, 273, 278
United States v. Morillo, 1 Wall. 706, 17 L. ed. 626 291
United States v. Ngum Lun May, 153 Fed. 209 186
United States v. Norsch, 42 Fed. 417 467
United States v. North Carolina, 136 U.*8. 211, 10 Sup. Ct. Eep. 920, 34
L. ed. 336 47,579
United States v. Northern Pacific B. Co., 95 Fed. 982 440
United States v. Old Settlers, 148 U. S. 469, 13 Sup. Ct. Kep. 667, 37 L.
ed. 525 ; 106
United States v. One Thousand Five Hundred Bales Cotton, 27 Fed. Gas.
No. 15,958 32
United States v. Ortega, Fed. Gas. No. 15,971, 4 Wash. C. C. 531 ... .395, 400
United States v. Osborne, 6 Saw. 408, 2 Fed. 59 386, 388
United States v. Pacheco, 20 How. 261, 15 L. ed. 820 291
United States v. Paine Lumber Co., 206 U. S. 467, 51 L. ed. 1139, 15
Sup. Ct. Advanced Sheets, 697 380
United States v. Parrott, McAll, 271, 27 Fed. Gas. No. 15,998 281, 288
United States v. Parrott, McAll, 447, 27 Fed. Gas. No. 15,999 281
United States v. Payne, 2 McCrary, 289, 8 Fed. 883 121
United States v. Payson, 1 Cal. Law J. 325, 27 Fed. Cas. No. 16,016 292
United States v. Peralta, 99 Fed. 618 281
United States v. Peralta, 102 Fed. 1006 281
United States v. Percheman, 7 Pet. 51, 8 L. ed. 604. ..85, 87, 120, 274, 275, 288
United States v. Philadelphia, 11 How. 609, 13 L. ed. 834 288
United States v. Piaza, 133 Fed. 998 346, 352
United States v. Pico, 23 How. 326, 16 L. ed. 464 132
United States v. PiUerin, 13 How. 9, 14 L. ed. 28 288
United States v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. Eep. 746, 38 L. ed.
631 410
United States v. Power, 11 How. 570, 13 L. ed. 817 288
United States v. Eauscher, 119 U. S. 407, 7 Sup. Ct. Eep. 234, 30 L. ed.
425 36, 38, 246, 298, 305, 336, 341, 353
United States v. Bepentigny, 5 Wall. 211, 18 L. ed. 627 274
United States v. Eeynes, 9 How. 127, 13 L. ed. 74 86, 132, 288
TABLE OF CASES CITED. lix
SECTION
United States v. Kio Grande Dam & I. Co., 9 N. Mex. 292, 51 Pac. 674. .. 297
United States v. Eio Grande Dam & I. Co., 174 U. S. 690, 19 Sup. Ct. Eep.
770, 43 L. ed. 1136 297
United States v. Ritchie, 17 How. 525, 15 L. ed. 236 291, 469
United States v. Bobbins, Fed. Cas. No. 16,175 318
United States v. Roselius, 15 How. 36, 14 L. ed. 590 288
United States v. Sa-coo-da-cot, 1 Abb. (U. S.) 383. Fed. Cas. No. 16,212,
1 Dill. 276 .' 216
United States v. Sandavol, 167 U. S. 278, 17 Sup. Ct. Eep. 868J 42 L. ed.
168 293
United States v. San Jacinto Tin Co., 125 U. S. 273, 8 Sup. Ct.
Eep. 850, 31 L. ed. 747 292
United States v. Santa Fe, 165 U. S. 675, 17 Sup. Ct. Eep. 472, 41 L. ed.
874 293
United States v. Saunders, 79 Fed. 407, 24 C. C. A. 649 588
United States v. Schooner Peggy, 1 Cranch, 103, 2 L. ed. 49 132, 234
United States v. Seveloff, 2 Saw. 317, Fed. Cas. No. 16,252 388
United States v. Shaw-Mux, 2 Saw. 365, Fed. Cas. No. 16,268 388
United States v. Sherman, 98 U. S. 565, 25 L. ed. 235 580
United States v. Sing Lee, 71 Fed. 6iO 191
United States v. State of New York, 160 U. S. 619, 16 Sup. Ct. Eep. 410,
40 L. ed. 551 580
United States v. Sutter, 21 How. 170, 16 L. ed. 119 291
United States v. Texas, 143 U. S. 640, 12 Sup. Ct. Eep. 488, 36 L. ed.
291 44, 47
United States v. The Geo. E. Wilton, 43 Fed. 606 191
United States v. The Peggy, 1 Cranch, 109, 2 L. ed. 49 132, 234
United States v. Throckmorton, 98 U. S. 61, 25 L. ed. 153 273, 292, 440
United States v. Tinsley, 68 Fed. 433, 15 C. C. A. 507 590
United States v. Trumbull, 46 Fed. 755 191
United States v. Trumbull, 48 Fed. 94 424
United States v. Turner, 11 How. 663, 13 L. ed. 857 246
United States v. Waterman, 14 Pet. 478, 10 L. ed. 550 288
United States v. Watts, 8 Saw. 370, 14 Fed. 130 298, 336
United States v. Weld, 127 U. S. 51, 8 Sup. Ct. Eep. 1000, 32 L. ed. 62. . 583
United States v. White, 9 Saw. 127, 17 Fed. 562 440
United States v. Wiggins, 14 Pet. 334, 10 L. ed. 481 288
United States v. Winslow, 3 Saw. 341, Fed. Cas. No. 16,742 388
United States v. Wong Ah Hung, 62 Fed. 1005 191
United States v. Wong Dep Ken, 57 Fed. 206 191
United States v. Wong Kim Ark, 169 U. S. 679, 18 Sup. Ct. Eep. 456, 42
L. ed. 901 183,188
United States v. Wong Sing, 51 Fed. 79 191
United States v. Wright, Fed. Cas. No. 16,774 410
United States v. Yorba, 1 Wall. 412, 17 L. ed. 635 . 132
Ix TABLE OF CASES CITED.
SECTION
United States v. Yunkers, 60 Fed. 641, 9 C. C. A. 171 590
University v. Miller, 14 N. C. 188 260
Utassy v. Gildinghagen, 132 Mo. 53, 33 S. W. 444 226, 227
Valareno v. Thompson, 7 N. Y. 576 411, 412
Valentine v. Sloss, 103 Cal. 215, 37 Pac. 326 274
Valk v. United States, 29 Ct. of Cl. 62 214
Vance v. Burbank, 101 U. S. 514, 25 L. ed. 925 440
Vanderput, The, 37 Ct. of Cl. 396 567
Vandersliee v. Hanks, 3 Cal. 38 276
Vandervelpen, In re, Fed. Cas. No. 16,844, 14 Blatchf . 137 322
Van Epps v. Walsh, 1 Woods, 598, 28 Fed. Cas. No. 16,850 34
Vaux v. Nesbit, 1 McCord Eq. 352 221, 223, 226
Verden v. Coleman, 1 Black, 474, 17 L. ed. 162 106
Vicksburg S. & P. R. Co. v. Dennis, 116 U. S. 665, 6 Sup. Ct. Rep. 625, 29
L. ed. 770 52
Virginia v. Tennessee, 148 U. S. 518, 13 Sup. Ct. Rep. 728, 37 L. ed. 537
41, 42, 49, 127
Virginia v. West Virginia, 11 Wall. 39, 20 L. ed. 67 43, 44, 46
Vogt, In re, 44 How. Pr. 171 * 308
Vogt, In re, 50 N. Y. 321 308
Wacker v. Wacker, 26 Mo. 426 226
Waddingham v. Robledo, 6 N. Mex. 347, 28 Pac. 662 281
Wadge, In re, 15 Fed. 864, 16 Fed. 332, 21 Blatchf. 300 350, 351
Wadsworth v. Boysen, 148 Fed. 771 183
Wallace v. State, 33 Tex. 445 34
Walters v. Jewett, 28 Tex. 192 281
Walton v. United States, 61 Fed. 487 580
Wan Shing v. United States, 140 U. S. 424, 11 Sup. Ct. Rep. 729, 35 L. ed.
503 189
Wan-Zop-E- Ah v. Board of Commissioners, 5 Wall. 760, 18 L. ed. 675 ... 390
Ward v. Flood, 48 Cal. 49, 17 Am. Rep. 405 160, 161
Ward v. Louisville, 16 B. Mon. (Ky.) 184 545
Ward v. Mulford, 32 Cal. 365 273, 274
Ward v. Race Horse, 163 U. S. 511, 16 Sup. Ct. Rep. 1078, 41 L. ed.
246 167, 170
Ward v. State, 102 Tenn. 727, 52 S. W. 997. 336
Ware v. Hylton, 3 Ball. 272, 1 L. ed. 568 2, 9, 132, 140, 150, 166
Ware v. Wisner, 50 Fed. 319 226
Washburn, In re, 3 Wheel. C. C. 473 308
Washington Irr. Co. v. Krutz, 119 Fed. 286, 56 C. C. A. 1 446
Waterman v. Smith, 13 Cal. 373 292
Watertown v. Mayo, 109 Mass. 315, 12 Am. Rep. 694 213
Watriss v. Reed, 99 Cal. 134, 33 Pac. 775 291
TABLE OF CASES CITED. Ixi
SECTION
Watson v. Donnelly, 28 Barb. (N. Y.) 653 256
Watson v. Murray, 8 C. E. Green (23 N. J. Eq.), 257 446
Wau-pe-Man-Qua v. Aldrich, 28 Fed. 497 390, 391, 392
Webb v. United States, 20 Ct. of Cl. 496 586
Weber v. Harbor Commissioners, 18 Wall. 57, 21 L. ed. 798 '. . . 274
Weiberg v. The Brig St. Oloff, 2 Pet. Adm. 432, Fed. Gas. No. 17,357 447
Weir v. Vail, 65 Gal. 470, 4 Pac. 425 440
Wellhaven, The, 55 Fed. 80 212, 447
West v. Gochran, 58 U. S. (17 How.) 403, 15 L. ed. 110 .282
Western College of Homeopathic Medicine v. Cleveland, 12 Ohio St.
375 545,546
West Virginia v. United States, 37 Ct. of Cl. 205 586
Whitaker's Administrator v. English, 1 Bay, 15 122
White v. Cannon, 6 Wall. 443, 18 L. ed. 923 31
White v. Martin, 66 Tex. 341, 17 S. W. 727 28 1
White v. Sabariego, 23 Tex. 243 227
White v. Wells, 5 Mart. (O. S.) 652 288
White v. White, 2 Met. (Ky.) 185 226, 227
Whitney v. Eobertson, 124 U. S. 190, 8 Sup. Ct. Rep. 456, 31 L.'ed.
386 94, 168, 169, 176, 185
Whitten v. Tomlinson, 160 U. S. 242, 16 Sup. Ct. Rep. 301, 40 L. ed.
412 130, 353, 354
Wilderanders v. State, 64 Tex. 133 225
Wieland v. Renner, 65 How. Pr. 245 257
Wilcke v. Wilcke, 102 Iowa, 173, 71 N. W. 201 250
Wilcox v. Luco, 118 Cal. 639, 62 Am. St. Rep. 305, 45 L. R. A. 579, 50
Pac. 758, 45 Pac. 676 * 401, 414, 415
Wildenhaus ' Case, 120 U. S. 1, 7 Sup. Ct. Rep. 285, 30 L. ed. 565 353
Wildenhaus, In re, 28 Fed. 924 447
Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. Rep. 811,
31 L. ed. 629 '.,/.. 174
William, The, 23 Ct. of Cl. 201 98
Williams, 14 Op. Atty. Gen. 281 309
Williams v. Armroyd, 7 Cranch, 423, 3 L. ed. 392 435
Williams v. Bennett, 1 Tex. Civ. App. 498, 20 S. W. 856 221, 226
Williams v. Bruffy, 96 U. S. 183, 24 L. ed. 716 24, 25
Williams v. City of New Orleans, 23 La. Ann. 507 552
Williams v. Heard, 140 U. S. 529, 11 Sup. Ct. Rep. 885, 35 L. ed. 550 571
Williams v. Oliver, 12 How. 124, 13 L. ed. 921 108, 112
Williams v. Williams, 130 N. Y. 198, 27 Am. St. Rep. 519, 29 N. E. 99,
14 L. R. A. 222 435
Williams v. Wilson, Mart. & Y. (Tenn.) 248 221
Wilson v. Shaw, 204 U. S. 24, 51 L. ed. 351 144
Wilson v. Smith, 5 Yerg. (Tenn.) 379 273, 288
Wilson v. Wall, 6 Wall. 83, 18 L. ed. 727 94, 246, 247
Ixii TABLE OF CASES CITED.
SECTION
Windle, Matter of, 2 Edw. Ch. 585 221
Wing Chung v. Los Angeles, 47 Cal. 531 546, 548, 549, 550
Wing 's Case, 6 Op. Atty. Gen. 431 298
Wirt, 1 Op. Atty. Gen. 28, 392 132
Wirt, 1 Op. Atty. Gen. 275 238
Wisconsin v. Pelican Ins. Co., 127 U. S. 288, 8 Sup. Ct. Eep. 1372, 32 L.
ed. 242 '. 48,435
Wiseman v. Eastman, 21 Wash. 171, 57 Pac. 400 440
Wong Wing v. United States, 163 U. S. 228, 16 Sup. Ct. Hep. 977, 41 L.
ed. 140 196, 197
Wood v. McCann, 6 Dana, 366 446
Wood v. United States, 16 Pet. 362, 10 L. ed. 993 184
Woodworth v. Fulton, 1 Cal. 295 273
Worcester v. Georgia, 6 Pet. 581, 8 L. ed. 483 2, 109, 388
Wormouth v. Gardner, 112 Cal. 506, 44 Pac. 806 291
Wo Tai Li, In re, 48 Fed. 668 191
Wright, In re, 123 Fed. 463 314, 344
Wright v. Henkel, 190 U. S. 59, 23 Sup. Ct. Eep. 785, 47 L. ed. 954 314, 344
Wright' v. Nagle, 101 U. S. 791, 25 L. ed. 923 52
Wright v. Saddler, 20 N. Y. 320 221
Wulf v. Manuel, 9 Mont. 279, 23 Pac. 723 221
Wunderle v. Wunderle, 144 111. 40, 33 N. E. 195, 19 L. B. A. 84
221, 240, 244, 245
Wyman, Petitioner, In re, 191 Mass. 276, 114 Am. St. Eep. 601, 77 N. E.
379 125,131,202
Wynne v. Morris, 20 How. 5, 15 L. ed. 801 107
Wy Shing, In re, 36 Fed/553, 13 Saw. 530 187
Yamataya v. Fisher, 189 U. S. 86, 23 Sup. Ct. Eep. 611, 47 L. ed.
721 186
Yates v. lams, 10 Tex. 168 226
Yeaker's Heirs v. Yeaker, 4 Met. (61 Ky.) 33, 81 Am. Dec. 530 92, 252
Yeatman v. Bradford, 44 Fed. 538 440
Yerger, Ex parte, 8 Wall. 105, 19 L. ed. 339 184
Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Eep. 1064, 30 L. ed.
220 195, 213
Yot Sang, In re, 75 Fed. 984 195
Young v. Peck, 21 Wend; (N. Y.) 389 227
Young v. Thompson, 14 Colo. App. 315, 59 Pac. 1037 446
Young v. United States, 97 U. S. 39, 24 L. ed. 992 434, 558
Yturbide v. United States, 22 How. 290, 16 L. ed. 342 291
Yung Sing Hee, In re, 36 Fed. 437, 13 Saw. 482 187
TABLE OF CASES CITED IN APPENDICES.
PAGE
Adultt, In re, 55 Fed. 376 *. 613
Ah Chong, In re, 6 Saw. 451, 2 Fed. 733 632
Ah Fong, In re, 3 Saw. 144, Fed. Gas. No. 102 632
Ah Kee, In re, 22 Blatchf . 520, 22 Fed. 519 633
Ah Lung, In re, 9 Saw. 306, 18 Fed. 28 633
Ah Moy, In re, 10 Saw. 345, 21 Fed. 785 633
Ah Ping, In re, 23 Fed. 329. 633
Ah Quam, In re, 10 Saw. 222, 21 Fed. 182 633
Ailing v. United States, 114 U. S. 562, 5 Sup. Ct. Eep. 1080, 29 L. ed.
272 711
American Ins. Co. v. 365 Bales of Cotton, 1 Pet. 511, 7 L. ed. 243 751
American Sugar E. Co. v. Bidwell, 124 Fed. 677 757
Amiable Isabella, The, 6 Wheat. 1, 5 L. ed. 191 753
Armstrong v. Bidwell, 124 Fed. 690 757
Armstrong v. United States, 182 U. S. 243, 21 Sup. Ct. Eep. 827, 45 L. ed.
1086 757
Atocha, In re, 17 Wall. 439, 21 L. ed. 696 709
Atocha v. United States, 8 Ct. of Cl. 427 707, 710
Bahuaud v. Bize, 105 Fed. 487 656
Baker v. Portland, 5 Saw. 566, Fed. Gas. No. 777 632
Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. Eep. 656, 30 L. ed. 766 633
Balensi, In re, 120 Fed. 864 657
Bartram v. Eobertson, 122 U. S. 116, 7 Sup. Ct. Eep. 1115, 30 L. ed. 118. . 643
Baruch, In re, 41 Fed. 472 613
Basse v. Brownsville, 154 U. S. 610, 14 Sup. Ct. Eep. 1195, 38 L. ed. 651. . 709
Behrendt, In re, 22 Fed. 699, 23 Blatchf. 40 740
Bello Corrunes, The, 6 Wheat. 152, 5 L. ed. 229 753
Benson, In re, 34 Fed. 649 710
Benson v. McMahon, 127 U. S. 457, 8 Sup. Ct. Eep. 1240, 32 L. ed. 234. .. 710
Blight 'a Lessee v. Eochester, 7 Wheat. 535, 5 L. ed. 516 662, 663
Boteller v. Dominguez, 130 U. S. 238, 9 Sup. Ct. Eep. 525, 32 L. ed. 926. . 709
Breen, In re, 75 Fed. 458 676
Brin v. Shine, 187 U. S. 181, 23 Sup. Ct. Eep. 98, 47 L. ed. 130 744
British Prisoners, The, 1 Wood. & M. 66, Fed. Cas. No. 12,734 669
Bryan v. Kennett, 113 U. S. 179, 5 Sup. Ct. Eep. 407, 28 L. ed. 908. . .650, 653
Bryant, In re, 80 Fed. 282 670, 676
(Ixiii)
Ixiv TABLE OF CASES CITED IN APPENDICES.
PAGE
Bryant v. United States, 167 U. S. 304, 42 L. ed. 941, 17 Sup. Ct. Eep.
744 669,676
Burchard, The, 42 Fed. 608 660
Burthe v. Denis, 133 U. S. 514, 10 Sup. Ct. Eep. 335, 33 L. ed. 768 657
Callsen v. Hope, 75 Fed. 758 743
Cantini v. Tillman, 54 Fed. 969 695
Carrier, In re, 57 Fed. 578 670
Carver v. Jackson, 4 Pet. 1, 7 L. ed. 761 662
Castro v. De Uriarte, 12 Fed. 250, 16 Fed. 93 756
Chae Chan Ping, In re, 13 Saw. 486, 36 Fed. 431 633
Chae Chan Ping v. United States, 130 U. S. 581, 9 Sup. Ct. Kep. 623, 32
L. ed. 1068 632,633
Chapman v. Toy Long, 4 Saw. 28, Fed. Gas. No. 2,610 632
Charleston, In re, 34 Fed. 531 670
Cherac v. Cherac, 2 Wheat. 259, 4 L. ed. 234 652
Chew Heong, In re, 10 Saw. 361, 21 Fed. 791 633
Chew Heong v. United States, 112 U. S. 536, 5 Sup. Ct. Eep. 255, 28 L.
ed. 770 63'J
Chin Ah On, In re, 9 Saw. 343, 18 Fed. 506 63:>
Chinese Laborer, Case of, 21 Fed. 791 633
Chinese Merchant, Case of, 7 Saw. 546, 13 Fed. 605 633
Chinese Wife, Case of, 21 Fed. 785 633
Chouteau v. Eckhart, 2 How. 344, 11 L. ed. 293 650, 65.S
Chung Toy Ho, In re, 42 Fed. 398, 9 L. E. A. 204 633
Cohn v. Jones, 100 Fed. 639 670
Comegys v. Vasse, 1 Pet. 193, 7 L. ed. 108 754
Comegys v. Vasse, 4 Wash. C. C. 570, Fed. Cas. No. 16894 754
Cortes, In re, 42 Fed. 47 756
Cosgrove v. Winney, 174 U. S. 641, 19 Sup. Ct. Eep. 598, 43 L. ed. 897. . 676
Coy, Ex parte, 32 Fed. 911 710
Craig v. Eadford, 3 Wheat. 594, 4 L. ed. 467 663
Cross v. Harrison, 16 How. 164, 14 L. ed. 889 709
Cross, In re, 43 Fed. 517 670
Grossman v. United States, 182 U. S. 221, 21 Sup. Ct. Eep. 742, 45 L. ed.
1065 757
Crystal Springs Land & Water Co. v. Los Angeles, 76 Fed. 148 710
Gushing v. United States, 22 Ct. of Cl. 1 652
Dainese v. Hale, 91 U. S. 13, 23 L. ed. 190, 1 McAr. (D. C). 86 729
Dainese v. United States, 15 Ct. of Cl. 64 729
Davies v. Police Jury of Concordia, 9 How. 280, 13 L. ed. 138 650, 653
De Geofroy v. Eiggs, 133 U. S. 258, 10 Sup. Ct. Eep. 295, 33 L. ed. 642
652, 656
De Giacoma, In re, 12 Blatchf. 391, Fed. Cas. No. 3747 .6
TABLE OF CASES CITED IN APPENDICES. Ixv
PAGE
Delasus v. United States, 9 Pet. 117, 9 L. ed. 71 650
De Lema v. Bidwell, 182 U. S. 1, 21 Sup. Ct. Eep. 743, 45 L. ed. 1041 757
De Pass v. Bidwell, 124 Fed. 615 757
Diekelman v. United States, 8 Ct. of Cl. 371 739
Doe v. Braden, 16 How. 635, 14 L. ed. 1090 754
Dooley v. United States, 182 U. S. 222, 21 Sup. Ct. Eep. 762, 45 L. ed.
1074 '....' 756
Dooley v. United States, 183 U. S. 151, 22 Sup. Ct. Eep. 62, 46 L. ed. 128
757
Downes v. Bidwell, 182 U. S. 244, 21 Sup. Ct. Eep. 770, 45 L. ed. 1088. . . 757
Dugan, In re, 2 Low. 367, Fed. Cas. No. 4120 669
Dunlop v. Alexander, 1 Cranch C. C. 498, 3 Fed. Cas. No. 4166 662
Elwine Kreplin, The, 4 Ben. 417, Fed. Cas. No. 4427 739
Ehvine Kreplin, The, 9 Blatchf . 438, Fed. Cas. No. 4426 739
Fairfax v. Hunter, 7 Cranch, 603, 3 L. ed. 453 662, 663
Fergus, In re, 30 Fed. 607 670
Ferrelle, In re, 28 Fed. 878 670
Fisher v. Harnden, 1 Paine C. C. 55, Fed. Cas. No. 4819 662, 663
Fitzsiramons v. Newport Ins. Co., 4 Cranch, 185, 2 L. ed. 591 663
Fong Yue Ting v. United States, 149 U. S. 698, 13 Sup. Ct. Eep. 1016, 37
L. ed. 905 632, 633
Forsyth v. Eeynolds, 15 How. 358, 14 L. ed. 729 663
Foster v. Neilson, 2 Pet. 253, 7 L. ed. 415 650, 653, 754
Fowler, In re, 4 Fed. 303, 18 Blatchf. 430 670
Frank, In re, 107 Fed. 272 676
Frelinghuysen v. Key, 110 U. S. 63, 3 Sup. Ct. Eep. 462, 28 L. ed. 71 711
Friedman v. Goodwin, 1 McAll. 142, Fed. Cas. No. 5,119 709
Garcia v. Lee, 12 Pet. 511, 9 L. ed. 1176 650, 653, 754
Georgia v. Brailsf ord, 3 Dall. 1, 1 L. ed. 483 662
Goetze v. United States, 103 Fed. 72 757
Goetze v. United States, 182 U. S. 221, 21 Sup. Ct. Eep. 742, 45 L. ed.
1065 757
Gordon's Lessee v. Kerr, 1 Wash. C. C. 322, Fed. Cas. No. 5611 662
Gray v. United States, 21 Ct. of Cl. 340 650, 652, 653, 663, 75 i
Grin, In re, 112 Fed. 790 744
Hall v. Patterson, 45 Fed. 352 670
Harcourt v. Gaillard, 12 Wheat. 523, 6 L. ed. 716 662
Harden v. Fisher, 1 Wheat. 300, 4 L. ed. 96 663
Henderson v. Poindexter's Lessee, 12 Wheat. 530, 6 L. ed. 718 753
Henrich, In re, 5 Blatchf. 414, Fed. Cas. No. 6369 740
Herres, In re, 33 Fed. 165 670
Ixvi TABLE OF CASES CITED IN APPENDICES.
PAGE
Hibbes, Ex parte, 26 Fed. 421 670
Higgins v. Mein, 4 Cranch, 415, 2 L. ed. 664 662
Ho King, In re, 8 Saw. 438, 14 Fed. 724 633
Hooker v. Los Angeles, 188 U. S. 314, 23 Sup. Ct. Eep. 395, 47 L. ed. 487
710
Hooper v. United States, 22 Ct. of Cl. 408 652
Hopkirk v. Bell, 4 Cranch, 164, 2 L. ed. 583 662
Hopkirk v. Bell, 3 Cranch, 454, 2 L. ed. 497 662
Howell v. Bidwell, 124 Fed. 688 757
Hughes v. Edwards, 9 Wheat. 489, 6 L. ed. 142 663
Hunter v. Fairfax, 3 Dall. 305, 1 L. ed. 613 662
Huus v. New York and Porto Eico S. S. Co. 182 U. S. 392, 21 Sup. Ct.
Eep. 827, 45 L. ed. 1146 757
Hylton's Lessee v. Brown, 1 Wash. C. C. 298, Fed. Gas. No. 6,981 662
Iowa v. Eood, 187 U. S. 87, 23 Sup. Ct. Eep. 49, 47 L. ed. 86. 650, 653,
Jackson v. Clarke, 3 Wheat. 1, 4 L. ed. 319 663
Jackson v. Porter, 1 Paine C. C. 457, Fed. Cas. No. 7143 663
Japanese Immigrant Case, The, 189 U. S. 86, 23 Sup. Ct. Eep. 611, 47 L.
ed. 721 701
Jones v. Walker, 2 Paine C. C. 688, Fed. Cas. No. 7,507 062
Josephs v. United States, 1 Ct. of Cl. 197, 2 Ct. of Cl. 586 650, 653,
Judson v. Corcoran, 17 How. 612, 15 L. ed. 231 709
Kaine, In re, 3 Blatchf. 1, Fed. Cas. No. 7,597 669
Kaine, In re, 14 How. 103, 14 L. ed. 345 669
Keene v. Whitaker, 14 Pet. 170, 10 L. ed. 404 650, 653
Kelley, In re, 2 Low, 339, Fed. Cas. No. 7,655 669
Kelley, In re, 25 Fed. 268 670
Kelly, In re, 26 Fed. 852 670
Ker, Ex parte, 18 Fed. 167 736
Ker v. Illinois, 119 U. S. 436, 7 Sup. Ct. Eep. 225, 30 L. ed. 421 736
Kinkead v. United States, 18 Ct. of Cl. 504 743
Kinkead v. United States, 24 Ct. of Cl. 459 743
Kinkead v. United States, 150 U. S. 483, 14 Sup. Ct. Eep. 172, 37 L. ed.
1152 743
Krozanker, In re, 44 Fed. 482 740
Lacroix v. Sarrazin, 4 Woods, 174, 15 Fed. 489 657
Lane, Ex parte, 6 Fed. 34 670
La Eepublique Francaise v. Schultz, 57 Fed. 37 657
Lau Ow Bew, Ex parte, 141 U. S. 583, 12 Sup. Ct. Eep. 43, 35 L. ed. 868
632, 633
Lau Ow Bew v. United States, 144 U. S. 47, 12 Sup. Ct. Eep. 517, 36 L.
ed. 340 632, 633
TABLE OF CASES CITED IN APPENDICES. Ixvii
PAGE
Lee Gon Yung, In re, 111, Fed. 998 634
Leong Tick Dew, In re, 10 Saw. 38, 19 Fed. 490 633
Le Tiqre, In re, 3 Wash. C. C. 567, Fed. Gas. No. 8281 753
MacDonnell, In re, 11 Blatchf. 79, Fed: Cas. No. 8,771 669
Martin v. Hunter 'a Lessee, 1 Wheat. 304, 4 L. ed. 97 662
McCabe, Ex parte, 46 Fed. 363, 12 L. E. A. 589 710
McDonogh v. Millandon, 3 How. 693, 11 L. ed. 787 650, 653
Mellvaine v. Coxe 'a Lessee, 4 Cranch, 209, 2 L. ed. 598 662
McKay v. Campbell, 2 Saw. 118, Fed. Cas. No. 8,840 663, 670
McKinney v. Saviego, 18 How. 235, 15 L. ed. 365 709
McPhun, In re, 30 Fed. 57 670
Meade v. United States, 2 Ct. of Cl. 224 754
Meade v. United States, 9 Wall. 691, 19 L. ed. 687 754
Miller, In re, 23 Fed. 32 670
Mineau, In re, 45 Fed. 188 670
Mitchel v. United States, 9 Pet. 711, 9 L. ed. 283 754
Moncan, In re, 8 Saw. 350, 14 Fed. 44 633
Nereide, The, 9 Cranch, 388, 3 L. ed. 769 753
Nethercleft v. Robertson, 23 Blatchf. 548, 27 Fed. 737 691
Newman, Ex parte, 14 Wall. 152, 20 L. ed. 877 739
Newman, In re, 79 Fed. 622 670
New Orleans v. De Armas, 9 Pet. 224, 9 L. ed. 109. .• 650
New Orleans v. United States, 10 Pet. 662, 9 L. ed. 573 650, 653
North German Lloyd S. S. Co. v. Hedden, 43 Fed. 17 739
Nuestra Senora de La Caridad, The, 4 Wheat. 497, 4 L. ed. 624 753
O 'Kara v. United States, 15 Pet. 275, 10 L. ed. 737 754
Oldfield v. Marriott, 10 How. 146, 13 L. ed. 364 737
One Hundred etc. Feet of Pine Lumber, 4 Blatchf. 182, Fed. Cas. No.
10,523 671
Oritz, Ex parte, 100 Fed. 955 756
Ornelas v. Ruiz, 161 U. S. 502, 16 Sup. Ct. Rep. 689, 40 L. ed. 787 710
Orpen, In re, 86 Fed. 760 670
Orr v. Hodgson, 4 Wheat. 453, 4 L. ed. 613 662, 663
Orteiza y Cortes v. Jacobis, 136 U. S. 330, 10 Sup. Ct. Rep. 1034, 34 L.
ed. 464 756
Owings v. Norwood Js Lessee, 5 Cranch, 344, 3 L. ed. 120 662
Parrott, In re, 6 Saw. 349, 1 Fed. 481 632
Pepke v. United States, 183 U. S. 176, 22 Sup. Ct. Rep. 59, 46 L. ed. 138
757
Pezarro, The, 2 Wheat. 227, 4 L. ed. 226 753
Pollard v. Files, 2 How. 591, 11 L. ed. 391 754
Ixviii TABLE OF CASES CITED IN APPENDICES.
PAGE
Pollard v. Hagan, 3 How. 212, 11 L. ed. 565 650, 653 753, 754
Pollard v. Kibbe, 14 Pet. 353, 10 L. ed. 490 754
Pong Ah Ghee, In re, 18 Fed. 527 633
Powers v. Comly, 101 U. S. 789, 25 L. ed. 805 733
Prevost v. Grenaux, 19 How. 1, 15 L. ed. 572 656
Quong Woo, In re, 7 Saw. 526, 13 Fed. 229 633
Eeintz, In re, 39 Fed. 204, 4 L. E. A. 236 670
Eepublica v. Gordon, 1 Dall. 233, 1 L. ed. 155 662
Eice v. Ames, 180 U. S. 371, 21 Sup. Ct. Eep. 406, 45 L. ed. 577 676
Eichter "v. Eeynolds, 59 Fed. 577, 8 C. C. A. 220 660
Eisch, In re, 36 Fed. 546 740
Eobinson v. Minor, 10 How. 627, 13 L. ed. 568 753
Eodreguez, In re, 81 Fed. 337 710, 711
Eoss, Ex parte, 2 Bond. 252, Fed. Gas. No. 12,069 669
Eoss v. Mclntyre, 140 U. S. 453, 11 Sup. Ct. Eep. 897, 35 L. ed. 581 698
Eowe, In re, 77 Fed. 161, 23 C. C. A. 103 710
Salomon!, In re, 29 Fed. 534 696
Santissima Trinidad, The, 1 Brock. 478, Fed. Gas. No. 2,568 753
Santissima Trinidad, The, 7 Wheat, 283, 5 L. ed. 454 753
Schooner, Jane The, 23 Ct. of Cl. 226 652
Seabury v. Field, 1 McAll. 1, Fed. Gas. No. 12,574 709
Sena v. United States, 189 U. S. 233, 23 Sup. Gt. Eep. 596, 47 L. ed.
787 710
Shanks v. Dupont, 3 Pet. 242, 7 L. ed. 666 662, 663
Sheazle, In re, 1 Wood. & M. 66, Fed. Gas. No. 12,734 669
Ship Tom, The, 29 Ct. of Cl. 68 650, 652, 653
Shong Toon, In re, 10 Saw. 268, 21 Fed. 386 633
Slidell v. Grandjean, 111 U. S. 412, 4 Sup. Ct. Eep. 475, 28 L. ed.
321 650, 653
Smith v. Maryland, 6 Cranch, 286, 3 L. ed. 225 662
Smith v. United States, 10 Pet. 326, 9 L. ed. 442 ..650, 653, 754
Society for Propagation of the Gospel v. New Haven, 8 Wheat. 464,
5 L. ed. 662 662, 663
Society for the Propagation of the Gospel v. Wheeler, 2 Gallison, 105,
Fed. Gas. No. 13,156 663
Soulard v. United States, 4 Pet. 511, 7 L. ed. 938 650, 653
Sternaman, In re, 77 Fed. 595 670
Sternaman v. Peck, 83 Fed. 690, 28 C. C. A. 377 670
Sternaman v. Peck, 80 Fed. 883, 26 C. C. A. 214 670
Storti v. Massachusetts, 183 U. S. 138, 22 Sup. Ct. Eep. 72, 46 L. ed.
120 , . 695
TABLE OF CASES CITED IN APPENDICES. Ixix
PAGE
Strother v. Lucas, 12 Pet. 410, 9 L. ed. 1137 650, 653
Stupp, In re, 11 Blatchf. 124, Fed. Gas. No. 13,562 740
Stupp, In re, 12 Blatchf. 501, Fed. Gas. No. 13,563 620
Taylor, In re, 118 Fed. 196 676
Terlinden v. Ames, 184 U. S. 270, 22 Sup. Ct. Rep. 484, 46 L. ed. 534. . 740
The British Prisoners (In re Sheazle), 1 Wood. & M. 66, Fed. Gas. No.
12,734 669
Thingvalla Line v. United States, 24 Ct. of Cl. 255 643
Thomas, In re, 12 Blatchf. 370, Fed. Gas. No. 13,887 616
Tobin v. Walkenshaw, 1 McAll. 186, Fed. Gas. No. 14,070 709
Town v. De Haven, 5 Saw. 146, Fed. Gas. No. 14,113 670
Townsend v. Greeley, 5 Wall. 326, 18 L. ed. 547 709
Tripp v. Spring, 5 Saw. 209, Fed. Gas. No. 14,180 709
Tucker v. Alexandroff, 183 U. S. 424, 22 Sup. Ct. Rep. 195, 46 L. ed. 264 744
Tully, In re, 20 Fed. 812 670
Tung Yeong, In re, 9 Saw. 620, 19 Fed. 184 633
United States v. Acosta, 1 How. 24, 11 L. ed. 33 754
United States v. Ah Fawn, 57 Fed. 591 633
United States v. Anguisola, 1 Wall. 352, 17 L. ed. 613 709
United States v. Arredondo, 6 Pet. 691, 8 L. ed. 547 754
United States v. Elaine, 139 U. S. 306, 11 Sup. Ct. Rep. 607, 35 L. ed.
183 711
United States v. Breward, 16 Pet. 143, 10 L. ed. 916 754
United States v. Caldwell, 8 Blatchf. 131, Fed. Gas. No. 14,707 669
United States v. Clarke, 9 Pet. 168, 9 L. ed. 89 754
United States v. Clarke, 16 Pet. 228, 10 L. ed. 946 754
United States v. Clarke, 8 Pet. 436, 8 L. ed, 1001 754
United States v. D'Auterive, 10 How. 609, 13 L. ed. 560 650, 653
United States v. Delespine, 15 Pet. 319, 10 L. ed. 753 754
United States v. Diekelman, 92 U. S. 520, 23 L. ed. 742 739
United States v. Douglas, 17 Fed. 634 632, 633
United States v. Frelinghuysen, 2 Mackey (D. C.), 299 711
United States v. Hanson, 16- Pet. 196, 10 L. ed. 935 754
United States v. Jung Ah Lung, 124 U. S. 621, 8 Sup. Ct. Rep. 663, 31
L. ed. 591 * ...... 633
United States v. King, 3 How. 773, 11 L. ed. 824 /650, 653
United States v. Kingsley, 12 Pet. 476, 9 L. ed. 1163 754
United States v. Lawrence, 13 Blatchf. 295, Fed. Gas. No. 15,573 669
United States v. Lee Yen Tai, 113 Fed. 465, 51 C. C. A. 299 634
United States v. Lynde's Heirs, 11 Wall. 632, 20 L. ed. 230 650, 653, 754
United States v. Mill 's Heirs, 12 Pet. 215, 9 L. ed. 1061 754
United States v. Miranda, 16 Pet. 153, 10 L. ed. 920 751
United States v. Moreno, 1 Wall. 400, 17 L. ed. 633 7(W
Ixx TABLE OF CASES CITED IN APPENDICES.
PAGE
United States v. Percheman, 7 Pet. 51, 8 L. ed. 604 754
United States v. Philadelphia and New Orleans, 11 How. 609, 13 L. ed.
834 650,653
United States v. Eauscher, 119 U. S. 407, 7 Sup. Ct. Eep. 234, 30 L. ed.
425 669
United States v. Eepentigny, 5 Wall. 211, 18 L. ed. 627 662
United States v. Eeynes, 9 How. 127, 13 L. ed. 74. 650, 653
United States v. Sibbald, 10 Pet. 313, 9 L. ed. 437 754
United States v. Texas, 162 U. S. 1, 16 Sup. Ct. Eep. 725, 40 L. ed. 867,. 754
United States v. The Amistead, 15 Pet. 518, 10 L. ed. 826 753, 754
United States v. The Peggy, 1 Cranch, 103, 2 L. ed. 49 652
United States v. Trumbull, 48 Fed. 94 627
United States v. Turner, 11 How. 663, 13 L. ed. 857 650, 653
United States v. Wash, Bee's Adm. Eep. 267 663
United States v. Watts, 8 Saw. 370, 14 Fed. 130 670
United States v. Wiggins, 14 Pet. 334, 10 L. ed. 481 754
United States v. Yong Yew, 83 Fed. 832 633
United States v. Yorba, 1 Wall. 412, 17 L. ed. 630 709
Van Aernam, Ex parte, 3 Blatchf. 160, Fed. Cas. No. 16,824 66:)
Vandervelpen, In re, 14 Blatchf. 137, Fed. Cas. No. 16,844 620
Van Hoven, Ex parte, 4 Dill. 411, Fed. Cas. No. 16,858 620
Wadge, In re, 15 Fed. 864, 16 Fed. 332, 21 Blatchf. 300 670
Wan Shing v. United States, 140 U. S. 424, 11 Sup. Ct. Eep. 729, 35 L.
ed. 503 633
Ware v. Hylton, 3 Ball. 199, 1 L. ed. 568 662
Weiberg v. The St. Oloff, 2 Pet. Adm. 428, Fed. Cas. No. 17,357 763
Weld & Co. v. United States, 23 Ct. of Cl. 126 675
Wiegand, In re, 14 Blatchf. 370, Fed. Cas. No. 17,618 740
Wildenhus, In re, 28 Fed. 924 619
Wong Yung Quy, In re, 6 Saw. 237, 47 Fed. 717 632
Wright, In re, 123 Fed. 463 676
Wright v. Henkel, 190 U. S. 45, 23 Sup. Ct. Eep. 781, 47 L. ed. 948. .670, 676
Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Eep. 1064, 30 L. ed. 220. 633
TREATY POWER OF THE CONSTITUTION.
CHAPTER I.
TREATY CLAUSES OF THE CONSTITUTION.
§ 1. Treaty clauses of the Constitution.
§ 2. Definitions.
§ 3. The continental Congress.
§ 4. Committee to prepare plan of treaties.
§ 5. Declaration of Independence.
S 6. Treaties under Articles of Confederation.
§ 7. Weakness of the confederation.
§ 8. Treaties under continental Congress.
§ 9. Congress unable to guarantee observance of treaty obligations.
§ 10. Eefusal of states to observe treaties.
§ 11. Want of judicial power to enforce treaties.
§ 12. Treaty of peace with Great Britain.
§ 13. Same subject.
§ 14. Breaches of this treaty.
§ 15. Constitution removed this defect.
§ 16. Comments of James Madison.
§ 17. Comments of Samuel Adams.
§ 18. Formation of Constitution.
§ 19. Organization of constitutional convention.
§ 20. Address to Congress.
§ 21. Comments of John Jay.
§ 1. Treaty clauses of the Constitution. — The treaty clauses of
the Constitution of the United States are :
1. States prohibited from making treaties:
(a) "No State shall enter into any Treaty, Alliance, or Con-
federation; grant letters of Marque and Reprisal; coin Money;
emit Bills of Credit; make any Thing but gold and silver Coin a
Tender in Payment .of Debts; pass any Bill of Attainder, ex
post facto Law, or Law impairing the Obligation of Contracts,
or grant any Title of Nobility."*
a Article I, section 10, clause 1.
Treaties— 1 (1)
§ 1] TREATY CLAUSES OF THE CONSTITUTION. 2
(6) "No State shaU, without the Consent of Congress, lay
any Duty of Tonnage, Keep Tro-ops, or Ships of War in Time
of Peace, enter into any Agreement or Compact with another
State, or with a Foreign Power, or engage in War, unless
actually invaded, or in such imminent Danger as will not admit
of delay."*
2. Power to make treaties :
11 He [the President] shall have Power, by and with the
Advice and Consent -of the Senate, to make Treaties, provided
two-thirds of the Senators present concur; and he shall nom-
inate, and by and with the Advice and Consent of the Senate,
shall appoint Ambassadors, other public Ministers and Consuls,
Judges of the Supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise
provided for, and whicfy shall be established by law; but the
Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments. "c
3. The judicial power extends to treaties:
"The Judicial Power 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; — to all Cases affecting Ambassadors, other public
Ministers and Consuls; — to all cases of admiralty and mari-
time Jurisdiction; — to Controversies to which the United States
shall be a Party; — to Controversies between two or more States;
— between a State and Citizens of another State; — between
Citizens of different States; — between Citizens of the same
State claiming Lands under Grants of different States, and
between a State, or the Citizens thereof, and foreign States,
Citizens or Subjects."*
4. Treaties the supreme law of the land :
((This Constitution, and the Laws of the United States, which
shall be made in Pursuance thereof; and all Treaties made, -or
b Article I, section 10, clause 3. d Article III, section 2, clause 2.
c Article II, section 2, clause 2.
3 DEFINITIONS. [§ 2
which shall be made, under the Authority of the United States,
shall l)e the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the Con-
stitution or Laws of any State to the Contrary notwithstand-
ing." e
§ 2. Definitions. — Among the various definitions given of
treaties we select the following:
"A treaty as understood in the law of nations .... is an
agreement or contract between two or more nations or sovereigns,
entered into by agents appointed for that purpose, and duly sanc-
tioned by the supreme power of the respective parties. ' ' 1
* ' When we speak of ' a treaty, ' we mean an instrument written
and executed with formalities customary among nations. ' ' 2
4 'No nation treats with a citizen of another nation except
through his government. The treaty, when made, represents a
compact between the governments, and each government holds
the other responsible for everything done by their respective citi-
zens under it. " 3
''What is a treaty? The answer is, it is a compact formed be-
tween two nations or communities, having the right of self-gov-
ernment. ' ' 4
"Laws are always seen, and through that medium people know
what they have to do. Treaties are not always seen. Some arti-
cles (being what are called secret articles) the public never see." 5
"I consider a treaty .... as a solemn promise by the whole
nation, that such and such things shall be done, or that such and
such rights shall be enjoyed."6
"A treaty is in its nature a contract between two or more
nations, and is so considered by writers on public law ; and by the
Constitution it is placed on the same footing and made of like
e Article VI, clause 2. * McLean, J., Worcester v. Georgia,
1 Thompson, J., dissenting. Chero- 6 Pet. 581, 8 L. eel. 483.
kee Nation v. Georgia, 5 Pet. 60, 8 3 Iredell, J., Ware v. Hylton, 3
L. eel. 25. Ball. 272, 1 L. ed. 568.
2 Taney, C. J., Holmes v. Jennison, 6 Iredell, J., Ware v. Hylton, 3
14 Pet. 571, 10 L. ed. 579. Dall. 271, 1 L. ed. 568.
3 Waite, C. J., Frelinghuysen v.
Key, 110 U. S. 71, 3 Sup. Ct. Eep.
462, 28 L. ed. 71.
§ 3] TREATY CLAUSES OF THE CONSTITUTION. 4
obligation as a law of the United States. Both are declared in
that instrument to be the supreme law of the land, and no para-
mount authority is given to either over the other."7
" Under the Constitution, a treaty between the United States
and a foreign nation is to be considered in two aspects — as a
compact between the two nations, and as a law of our country.
As a compact, it depends for its enforcement on the good faith
of the contracting parties, and to carry into effect some of its
provisions may require legislation. For any infraction of its
stipulations importing a contract, the courts can afford no redress
except as provided by such legislation. The matter is one to be
settled by negotiation between the executive departments of the
two governments, each government being at liberty to take such
measures for redress as it may deem advisable."8
"A treaty of cession is a deed of the ceded territory, the
sovereign is the grantor, the act is his, so far as it relates to the
cession, the treaty is his act and deed, and all courts must so
consider it, and deeds are construed in equity by the rules of
law."9
§ 3. The continental Congress. — As it became evident that if
the colonies were to be successful in their contentions against
Great Britain harmonious co-operation was necessary, the various
colonies, acting upon the recommendation of Massachusetts that
a continental Congress be called to consider the state of public
affairs, appointed delegates, who assembled at Philadelphia on
September 4, 1774. They determined that each colony or prov-
ince should have one vote, adopted addresses to the people of
England and to the adjoining British colonies, passed resolu-
tions declaring that the importation of certain goods ought to
cease after September 10, 1775, unless before that time the
grievances of America should be removed, and proposed that a
general Congress be held in May of the following year.
At the second Congress all the states were represented. The
raising of continental troops was authorized, and George Wash-
ington was appointed commander-in-chief. They provided for
7 Field, J., dissenting. Chew Heong Franks, 120 U. S. 702, 7 Sup. Ct. Eep.
v. United States, 112 U. S. 562, 5 656, 30 L. ed. 766.
Sup. Ct. Rep. 255, 28 L. ed. 770. 9 Baldwin, J. United States v.
8 Field, J., dissenting. Baldwin v. Arredondo, 6 Pet. 738, 8 L. ed. 547.
5 COMMITTEE TO PREPARE PLAN OF TREATIES. [§§ 4, 5
the issue of two millions of dollars in bills of credit, and pledged
the colonies to redeem them, and on June 10th of that year a
committee was constituted to prepare a declaration to the effect
"that these united colonies are, and of right ought to be, free
and independent states ; that they are absolved from all allegiance
to the British crown, and that all political connection between
them and the State of Great Britain is, and ought to be dis-
solved."10
§ 4. Committee to prepare plan of treaties. — A committee was
appointed on the following day, June llth, to prepare a plan
of~treaties to be proposed to foreign powers. On the 4th of
July the Declaration of Independence was adopted. The pow-
ers of a government were exercised by Congress until the adop-
tion of the Articles of Confederation. A resolution was passed
by Congress on June 11, 1776, providing for the appointment of
a committee to prepare and digest the form of a confederation
to be entered into between the colonies. This committee on July
12, 1776, presented a draft which was under debate for several
days, and on August 20, 1776, the committee of the whole re-
ported a new draft.11
On November 15, 1777, Congress finally adopted the articles,
and the final ratification by all the states occurred March 1,
1781.12
§ 5. Declaration of Independence. — The Declaration of In-
dependence on July 4, 1776, effected a severance of the politi-
cal connection between the colonies and the English crown and
constituted the colonies free and independent states. "The con-
sequences flowing from its adoption were," says Mr. Curtis,
"that the local allegiance of the inhabitants of each colony be-
came transferred and due to the colony itself, or as it was ex-
pressed by the Congress, became due to the laws of the colony
from which they derived protection ; that the people of the coun-
try became thenceforth the rightful sovereign of the country;
that they became united in a national capacity, as one people;
that they could thereafter enter into treaties and contract al-
10 Journals of Congress of 1776, 12 Secret Journals, 401, 418, 423,
205, 206. , 426; 3 Kent's Commentaries, 196,
11 Journals of 1776, 304. 197.
§ 6] TREATY CLAUSES OF THE CONSTITUTION. 6
liances with foreign nations, could levy war and conclude peace,
and do all other acts pertaining to the exercise of a national
sovereignty; and finally, that in their national capacity, they
became known and designated as the United States of Amer-
ica. This Declaration was the first national state paper in which
these words were used as the style and title of the nation. ' ' 13
"A nation and a state did not spring into existence, through
that declaration, as dramatic publicists are wont to express it.
Nations and states do not spring into existence. The signifi-
cance of the proclamation was this: a people testified thereby
the consciousness of the fact that they had become, in the
progressive development of history, one whole, separate, and
adult nation, and a national state, and that they were deter-
mined to defend this natural status against the now no longer
natural supremacy of the foreign state."14
§ 6. Treaties under Articles of Confederation.— It was declared
in the first article that the name of the confederacy should be
"The United States of America," and in the second that each
state should retain its sovereignty, freedom, and independence,
and every power, jurisdiction, and right, which was not ex-
pressly delegated by the confederation to the United States.
The sole and exclusive right was conferred upon Congress of
sending and receiving ambassadors, and of entering into treaties
amTalliances under the restriction that no treaty of commerce
could be made by which the legislative power of the states was
to be restrained from imposing such imposts and duties on
foreigners as their own people were subjected to, or prohibiting
the exportation or importation of any species of goods or com-
modities. No state was allowed, without the consent of the
United States, to send an embassy to, or receive an embassy
from, or make any treaty with any ruler or state; nor with-
out the consent of Congress could any state enter into any
treaty, confederation or alliance with each other. But the Arti-
cles of Confederation contained no means to carry its powers
into execution. It might declare everything, but do nothing;
or, in the words of Washington, the confederation was "little
13 1 Curtis' Constitutional History 14 1 Burgess' Political Science and
of the United States, 35. Constitutional Law, 100.
TREATIES UNDER ARTICLES OF CONFEDERATION.
:§
more than a shadow without the substance; and Congress a
nugatory body, their ordinances being little attended to."15
15 5 Marshall 's Life of Washington,
64.
The clauses of the Articles of Con-
federation relating to these subjects
were:
"Article VI. No State without
the consent of the United States in
Congress assembled, shall send any
embassy to, or receive any embassy
from, or enter into any conference,
agreement, alliance, or treaty with any
king, prince or state; nor shall any
person holding any office or profit or
trust under the United States, or any
of them, accept of any present,
emolument, office or title of any kind
whatever from any king, prince or
foreign state; nor shall the United
States in Congress assembled, or any
of them, grant any title of nobility.
"No two or more States shall enter
into any treaty, confederation or al-
liance whatever between them, without
the consent of the United States in
Congress assembled, specifying ac-
curately the purposes for which the
same is to be entered into, and how
long it shall continue.
"No State shall lay any imposts
or duties, which may interfere with
any stipulations in treaties, entered
into by the United States in Con-
gress assembled, with any king, prince
or state, in pursuance of any treaties
already proposed by Congress, to the
courts of France and Spain.
"No vessels of war shall be kept
up in time of peace by any State,
except such number only, as shall
be deemed necessary by the United
States in Congress assembled, for the
defense of such State, or its trade;
nor shall any body of forces be kept
up by any State, in time of peace, ex-
cept such number only, as in the
judgment of the United States, in
Congress assembled, shall be deemed
requisite to garrison the forts neces-
sary for the defence of such State;
but every State shall always keep up
a well regulated and disciplined
militia, sufficiently armed and ae-
coutered, and shall provide and con-
stantly have ready for use, in public
stores, a due number of field pieces
and tents, and a proper quantity of
arms, ammunition and camp equipage.
1 ' No State shall engage in any war
without the consent of the United
States in Congress assembled, unless
such State be actually invaded by
enemies, or shall have received cer-
tain advice of a resolution being
formed by some nation of Indians to
invade such State, and the danger is
so imminent as not to admit of a
delay, till the United States in Con-
gress assembled can be consulted; nor
shall any State grant commissions to
any ships or vessels of war, nor
letters of marque or reprisal, except
it be after a declaration of war by the
United States in Congress assembled,
and then only against the kingdom or
state and the subjects thereof, against
which war has been so declared, and
upon such regulations as shall be
established by the United States in
Congress assembled, unless such State
shall be infested by pirates, in which
case vessels of war may be fitted out
for that occasion, and kept so long
as the danger shall continue, or until
the United States in Congress as-
sembled, shall determine otherwise."
1 ' Article IX. The United States in
Congress assembled, shall have the sole
and exclusive right and power of de-
§§ 7, 8] TREATY CLAUSES OF THE CONSTITUTION. 8
§ 7. Weakness of the confederation. — "The government of
the United States could not go on under the confederation,"
said Mr. Justice Patterson, "because Congress were obliged to
proceed in the line of requisition. Congress could not under the
old confederation raise money by taxes, be the public exigencies
ever so pressing and great. They had no coercive authority—
if they had, it must have been exercised against the delinquent
states, which would be ineffectual, or terminate in a separation.
Requisitions were a dead letter, unless the state legislatures
could be brought into action; and when they were, the sums
raised were very disproportional. Unequal contributions or pay-
ments engendered discontent, and fomented state jealousy."16
As each state pursued its own course, treaty obligations en-
tered into by the general government had no binding force, and
in many of the states laws were passed which rendered nugatory
the stipulations in treaties with other governments, and this
evil became so great that in April, 1787, Congress was compelled
to address to the several states a letter, beseeching them to re-
peal such of their laws as interfered with the treaties made with
foreign nations.17
We shall notice the breaches of the treaty of peace with Great
Britain at greater length in a subsequent section.
§ 8. Treaties under continental Congress. — On February 16.
1776, it was suggested that treaties with foreign powers should be
termining on peace and war, except in what manner prizes taken by land or
the cases mentioned in the sixth naval forces in the service of the
article — of sending and receiving am- United States shall be divided or ap-
bassadors — entering into treaties and propriated — of granting letters of
alliances, provided that no treaty of marque and reprisal in time of
commerce shall be made whereby the peace — appointing courts for the trial
legislative power of the respective of piracies and felonies committed on
States shall be restrained from im- the high seas and establishing courts
posing such imposts and duties on for receiving and determining finally
foreigners, as their own people are appeals in all cases of captures, pro-
subjected to, or from prohibiting the vided that no member of Congress
exportation or importation of any shall be appointed a judge of any of
species of goods or commodities what- said courts.7'
soever — of establishing rules for de- 18 Hylton v. United States, 3 Dall.
ciding in all cases, what captures on 172, 178, 1 L. ed. 556.
land or water shall be legal, and in 17 1 Amer. Museum, 352.
9 TREATIES UNDER CONTINENTAL CONGRESS. [§ 8
made to open our ports to foreign commerce, but to this proposition
the answer was returned that the character in which Congress
should act should first be determined — whether as the representa-
tives of independent states or as dependencies of Great Britain. A
committee on secret correspondence was appointed by Congress on
the 29th of November, 1775. It was the duty of this committee to
correspond with the friends of the colonies wherever they might be
found to be throughout the world. Instructions addressed to Silas
Deane were signed by Dr. Franklin, Benjamin Harrison, John
Dickinson, Robert Morris and John Jay on the third day of March,
1776, directing him to enter into communication with M. de Ver-
gennes, and to learn, if possible, whether France would enter into
any treaty or alliance with them for commerce or defense, or both,
should the colonies form themselves into independent states. On
the 17th of September, 1775, a plan of treaty was adopted to be
proposed to the King of France. The commissioners selected by the
continental Congress to conclude treaties with the nations of the
world were Dr. Franklin, Silas Deane and Arthur Lee, the latter
having been elected in the place of Thomas Jefferson, who declined.
The commissioners on January 6, 1778, concluded a treaty of al-
liance and a treaty of amity and commerce with the King of
France, and following this, treaties were made with several other
powers, the treaty of peace with Great Britain being made in
1783.18
18 Notes, Treaty Volume 1776- Georgia, to all who shall see these
1887, 1219, J. C. B. Davis; Ban- presents; send greeting; — Whereas, a
croft 's History of the United States, trade, upon equal terms, between the
Vol. IV, p. 335; Moore's American subjects of his most Christian
Diplomacy, 33. The first diplomatic Majesty, the King of France, and
representatives commissioned to rep- the people of these States, will be
resent the United States were Ben- beneficial to both nations; — Know
jamin Franklin, Silas Deane and ye, therefore, that we, confiding in
Arthur Lee. Jefferson was appoint- the prudence and integrity of Ben-
ed first, but being forced to decline, jamin Franklin, one of the Delegates
Lee was appointed in his stead. in Congress from the State of Penn-
Their letters of credence was: "The sylvania, and President of the Con-
Delegates of the United States of vention of said State, etc., Silas
New Hampshire, Massachusetts Bay, Deane, now in France, late a Dele-
Ehode Island, Connecticut, New gate from the State of Connecticut,
York, New Jersey, Pennsylvania, and Arthur Lee, barrister at law,
Delaware, Maryland, Virginia, North have appointed and deputed, and by
Carolina, South Carolina and these presents do appoint and depute
9, 10]
TREATY CLAUSES OF THE CONSTITUTION.
10
§ 9. Congress unable to guarantee observance of treaty obliga-
tions.— Congress, under the Articles of Confederation, was unable
to guarantee that commercial regulations under treaty provisions
would or could be faithfully observed, and there was, therefore, a
want of reciprocity. Foreign nations were bound by their treaty
compacts, while the federal government had no coercive power
over the states. Again, to quote Washington: "America must ap-
pear in a very contemptible point of view to those with whom she
was endeavoring to form commercial treaties, without possessing
the means of carrying them into effect. They must see and feel
that the Union, or the states individually, are sovereign as best
suits their purposes. In a word, we are a nation to-day, and thir-
teen to-morrow. Who will treat with us on such terms ? ' '19
It was not until the adoption of the Constitution that the treaty
of peace of 1783 was faithfully executed in relation to British
debts.20
§ 10. Refusal of states to observe treaty. — Several of the
states had refused to carry out the terms of the treaty, and Great
them, the said Benjamin Franklin,
Silas Deane, and Arthur Lee, our
Commissioners, giving and granting
to them, the said Franklin Deane,
and Lee, or any two of them, and in
the case of the death, absence or dis-
ability of any two, or any one of
them, full power to communicate,
treat, agree, and conclude with his
most Christian Majesty, the King of
France, or with such person or per-
sons, as shall by him be for that pur-
pose authorized, of and upon a true
and sincere friendship, and a firm,
inviolable and universal peace for
the defense, protection and safety, of
the navigation and mutual commerce
of the subjects of his most Christian
Majesty, and the people of the
United States, and to do all other
things, which may conduce to those
desirable ends, and promising in
good faith to ratify whatsoever our
said Commissioners shall transact in
the premises. Done in Congress, in
Philadelphia, the thirtieth day of
September, in the year of our Lord,
one thousand seven hundred and sev-
enty-six": 2 Secret Journals of
Congress, 32.
They reported to Congress: "It
was evident that the court [of
France], while it treated us pri-
vately with all civility, was cautious
of giving umbrage to England, and
was, therefore, desirous of avoid-
ing open reception and acknowledg-
ment of us, or entering into any
formal negotiations with us, as min-
isters from the Congress": 2 Dip.
Cor. Eev. 283.
19 5 Marshall's Life of Washing-
ton, 71, 72; North American Ee-
view, Oct. 1827, p. 257.
20 Ware v. Hylton, 3 Dall. 199, 1
L. ed. 568; Hopkins v. Bell, 3
Cranch, 454, 2 L. ed. 497.
11 WANT OF JUDICIAL POWER TO ENFORCE TREATIES. [§ 11
Britain demanded redress for these infractions, and had refused
in consequence to comply with the stipulations of the treaty re-
quiring her to surrender up the western ports. Through the inabil-
ity of the confederacy to enforce treaty stipulations the country
was in danger of attacks by Indians on our western limits, and the
address, drawn up in 1787, by Mr. Jay, Secretary of Foreign Af-
fairs, and unanimously adopted by Congress, displays the absolute
weakness of the confederation and also the contemptuous disregard
of the provisions of that treaty by the various states in their legis-
lation.21
As showing the jealousy entertained by the states of the powers
of the general government, it may be observed that when the Brit-
ish garrison was expected to surrender the western posts, and it
was deemed necessary that possession of them on behalf of Amer-
ica should be taken by some regular troops, the power of Congress
to make a requisition in the states for this object was disputed, and
it was asserted that the power was dangerous to liberty. Finally,
the proposition was rejected, and in place of the regular troops
militia were sent.22
§ 11. Want of judicial power to enforce treaties. — Among
other defects that were urged against the confederation was the
want of judicial power to enforce treaty obligations. "Laws are
a dead letter, ' ' said the Federalist, ' ' without courts to expound and
define their true meaning and operation. The treaties of the United
States, to have any force at all, must be considered as part of the
law of the land. Their true import, so far as respects individuals,
must, like all other laws, be ascertained by judicial determinations.
To produce uniformity in these determinations, they ought to be
submitted, in the last resort, to one supreme tribunal. And thisx
tribunal ought to be instituted under the same authority, which
forms the treaties themselves. These ingredients are both indis-
pensable. If there is in each state a court of final jurisdiction,
there may be as many different final determinations on the same
point as there are courts. There are endless diversities in the opin-
ions of men. We often see not only different courts, but the judges
21 Journals of Congress, April 13, a 5 Marshall's Life of Washing-
1787, p. 32; Eawle on Constitution, ton, App., note 1.
App. 2, p. 316; 1 Story on Constitu-
tion, sec. 262.
§ 12] TREATY CLAUSES OF THE CONSTITUTION. 12
of the same court differing from each other. To avoid the con-
fusion which would unavoidably result from the contradictory de-
cisions of a number of independent judicatories, all nations have
found it necessary to establish one tribunal paramount to the rest,
possessing a general superintendence, and authorized to settle and
declare in the last resort an uniform rule of justice. This is the
more necessary where the frame of the government is so com-
pounded that the laws of the whole are in danger of being con-
travened by the laws of the parts. The treaties of the United
States, under the present confederation, are liable to the infrac-
tions of thirteen different legislatures and as many different courts
of final jurisdiction, acting under the authority of these legisla-
tures. The faith, the reputation, the peace of the whole Union,
are thus continually at the mercy of the prejudices, the passions
and the interests of every member, of which these are composed.
Is it possible, under such circumstances, that the people of Amer-
ica will longer consent to trust their honor, their happiness, their
safety, on so precarious a foundation?"23
§ 12. Treaty of peace with Great Britain. — A provisional
treaty of peace was made with Great Britain at Paris, November
30, 1782, and was proclaimed by Congress on April 11, 1783.
The armistice declaring a cessation of hostilities was con-
cluded January 20, 1788., and the definitive treaty of peace
was concluded at Paris, September 3, 1783, ratified by Con-
gress January 14, 1784, and proclaimed the same day. The
first article of this treaty recognized the independence of the
United States; the second fixed the boundaries; the third made
provisions for the unmolested right to take fish on the New-
foundland banks and in the gulf of St. Lawrence. The fourth
article was: "It is agreed that Creditors on either Side, shall
meet with no lawful Impediment to the Recovery of the full
Value in Sterling Money of all bona fide debts heretofore con-
tracted." The fifth article declared: "It is agreed that the Con-
gress shall earnestly recommend it to the Legislatures of the
respective States to provide for the Restitution of all Estates,
Rights and Properties which have been confiscated belonging to
real British Subjects ; and also for the Estates, Rights and Prop-
'•' The Federalist, No. 22; 1 Kent's Commentaries, Lecture 10.
13 TREATY OF PEACE WITH GREAT BRITAIN. [§ 13
erties of Persons resident in Districts in the Possession of his
Majesty's Arms, and who have not borne Arms against the said
United States. And that Persons of any other Description shall
have free Liberty to go to any Part or Parts of any of the thir-
teen United States and therein to remain twelve Months un-
molested in their Endeavours to obtain the Restitution of such
of their Estates, Eights & Properties as may have been con-
fiscated. And that Congress shall also earnestly recommend to
the several States, a Reconsideration and Revision of all Acts or
Laws regarding the Premises, so as to render the said Laws or
Acts perfectly consistent, not only with Justice and Equity, but
with that Spirit of Conciliation, which, on the Return of the
Blessings of Peace should universally prevail. And that Con-
gress shall also earnestly recommend to the several States, that
the Estates, Rights and Properties of such last mentioned Per-
sons shall be restored to them, they refunding to any Persons who
may be now in Possession, the bona fide Price (where any has
been given) which such Persons may have paid on purchasing
any of the said Lands, Rights or Properties, since the Confisca-
tion.
"And it is agreed that all Persons who have any Interest in
confiscated Lands, either by Debts, Marriage Settlements, or
otherwise, shall meet with no lawful Impediment in the Prosecu-
tion of their just Rights. ' ' 24
§ 13. Same subject. — The sixth article of the treaty declared:
"That there shall be no future Confiscations made nor any Pros-
ecutions commenced against any Person or Persons for or by
Reason of the Part, which he or they may have taken in the
present War, and that no Person shall on that Account suffer
any future Loss or Damage, either in his Person, Liberty or
Property; and that those who may be in Confinement on such
Charges at the Time of the Ratification of the Treaty in America
shall be immediately set at liberty, and the prosecutions so com-
menced be discontinued."
The seventh article stated: "There shall be a firm and perpetual
Peace between his Britannic Majesty and the said States and
24 Compilation of Treaties in Force, Government Printing Office, 1904, pp.
292-294.
§ 14] TREATY CLAUSES OP THE CONSTITUTION. 14
between the Subjects of the one, and the Citizens of the other,
wherefore all Hostilities both by Sea and Land shall from hence-
forth cease : All Prisoners on both Sides shall be set at Liberty,
and his Britannic Majesty shall with all convenient speed, and
without causing any Destruction, or carrying away any Negroes
or other Property of the American Inhabitants, withdraw all his
Armies, Garrisons & Fleets from the said United States and
from every Post, Place and Harbour within the same ; leaving in
all Fortifications the American Artillery that may be therein:
And shall also order & cause all Archives, Records, Deeds &
Papers belonging to any of the said States, or their Citizens,
which in the Course of the War may have fallen into the Hands
of his Officers, to be forthwith restored and deliver 'd to the
proper States and Persons to whom they belong."
In the eighth article it was provided that: "The Navigation
of the River Mississippi, from its source to the Ocean shall for-
ever remain free and open to the Subjects of Great Britain,
and the Citizens of the United States. ' '
And in the ninth article it was stipulated: "In Case it should
so happen that any Place or Territory belonging to Great Britain
or to the United States should have been conquer 'd by the Arms
of either from the other before the arrival of the said Provisional
Articles in America it is agreed that the same shall be restored
without difficulty and without requiring any compensation. ' ' 25
§ 14. Breaches of this treaty. — There was no power under the
confederation to compel the observance of this treaty, and its
provisions were ignored by the^ states. In New York a statute
was passed in 1783 by which actions for rent were authorized to
be brought by persons who had been forced to abandon their
lands by the enemy against those who were in their occupation
while the enemy held possession, and which also forbade the
pleading in justification of such occupation of any military order
or command of the enemy.26 Again, in 1784, after the ratifica-
tion of the treaty, a statute was passed in the same state which
declared that those inhabitants who had given their adhesion
to the enemy, if found within the state, should be guilty of mis-
25 Compilation of Treaties in Force, 26 4 Secret Journals, 267.
Government Printing Office, 1904, pp.
292, 296.
15 CONSTITUTION REMOVED THIS DEFECT. [§ 15
prision of treason, and that they should be incapable of hold-
ing office or of voting at elections.27 Mr. Jay, Secretary of
Foreign Affairs, made a report in October, 1786, calling atten-
tion to various acts- of the states in conflict with the treaty, and
mentioned among them the statute passed in 1784 by Massachu-
setts, which suspended judgment for interest on British debts
until a construction should have been put upon the treaty by
Congress declaring it to be due; the law of Pennsylvania in re-
straint of the levy of executions; the statute of New York of
1782, providing for the restraint of the collection of debts due
to persons within the lines of the enemy ; the statute of Virginia,
prohibiting the collection of debts due to British creditors, and
the statute of South Carolina, providing that they might be paid
by land instead of money.28 A case was brought in New York
to recover the rents of property, under the statute above noted.
The defense was conducted by Alexander Hamilton, who con-
tended that the statute violated the treaty, and his contention
was sustained by the court, but the legislature of that state de-
clared that the decision was subversive of law and good order,
and recommended that such persons should be appointed to of-
fice as would "govern themselves by the known law of the
land."29
§ 15. Constitution removed this defect. — By the adoption of
the Constitution, the inability of the United States to enforce
treaty stipulations was removed. Speaking of the impossibility
of securing concerted action among the several states prior to
the adoption of the Constitution, Mr. Curtis states: "This com-
bined will of distinct communities, expressed through the action
of a common agent, was wholly unable to overcome the adverse
will of any of them expressed by another and separate agent,
although the objects of the powers bestowed on the confederacy
were carefully stated, and sufficiently defined in a public compact.
"Thus, for example, the treaty-making power was expressly
vested in the United States in Congress assembled; but when a
treaty had been made, it depended entirely upon the separate
pleasure of each state whether it should be executed. If the
state governments did not see fit to enforce its provisions upon
27 4 Secret Journals, 269. " 2 Life of Hamilton, 244.
28 4 Secret Journals, 209.
§ 15] TREATY CLAUSES OF THE CONSTITUTION. 16
their own citizens, or thought proper to act against them, there
was no remedy, both because the Congress could not legislate to
control individuals, and because there was no department clothed
writh authority to compel individuals to conform their conduct to
the requirements of the treaty, and to disregard the opposing will
of the state.
"This defect was now to be supplied, by giving to the national
authority, not only theoretically but practically, a supremacy
over the authority of each state. But this was not to be done by
annihilating the state governments. The government of every
state was to be preserved ; and so far as its original powers were
not to be transferred to the general government, its authority
over its own citizens and within its own territory must, from the
nature of political sovereignty, be supreme. There were, there-
fore, to be two supreme powers in the same country, operating
upon the same individuals, and both possessed of the general at-
tributes of sovereignty. In what way, and in what sense, could
one of them be made paramount over the other?
"It is manifest that there cannot be two supreme powers in
the same community, if both are to operate upon the same ob-
jects. But there is nothing in the nature of political sovereignty
to prevent its powers from being distributed among different
agents for different purposes. This is constantly seen under the
same government, when its legislative, executive, and judicial
powers are exercised through different officers; and in truth,
when we come to the law-giving power alone, as soon as we sep-
arate its objects into different classes, it is obvious that there may
be several enacting authorities, and yet each may be supreme
over the particular subject committed to it by the fundamental
arrangements of society. Supreme laws, emanating from sepa-
rate authorities, may and do act on different objects without
clashing, or they may act on different parts of the same object
with perfect harmony. They are inconsistent when they are
aimed at each other, or at the same indivisible object. When this
takes place one or the other must yield ; or, in other terms, one of
them ceases to be supreme on the particular occasion. It was the
purpose of the framers of the Constitution of the United States to
provide a paramount rule that would determine the occasions on
which the authority of a state should cease to be supreme, leaving
that of the United States unobstructed. Certain conditions were
17 COMMENTS OF JAMES MADISON. [§ 16
made necessary to the operation of this rule. The state law must
conflict with some provision of the Constitution of the United
States, or with a law of the United States enacted in pursuance
of the constitutional authority of the Union. The operation of
this rule constitutes the supremacy of the national government.
It was supposed that, by a careful enumeration of the objects to
which the national authority was to extend, there would be no
uncertainty as to the occasions on which the rule was to apply;
and as all other objects were to remain exclusively subject to the
authority of the states within their respective territorial limits,
the operation of the rule was carefully limited to those occa-
sions."30
§ 16. Comments of James Madison. — James Madison, urging
the ratification of the Constitution in the state convention of
Virginia, spoke of the weak powers possessed by the confedera-
tion and of the imperative necessity of making the treaty-making
power effectual. "The confederation," said he, "is so notori-
ously feeble, that foreign nations are unwilling to form any
treaties with us; they are apprized that our general government
cannot perform any of its engagements, but they may be violated
at pleasure by any of the states. Our violations of treaties al-
ready entered into proves this truth unequivocally. No nation
will, therefore, make any stipulations with Congress, conceding
any advantages of importance to us; they will be the more ad-
verse to entering into engagements with us, as the imbecility of
our government enables them to derive many advantages from
our trade, without granting us any return. But were this coun-
try united by proper bands, in addition to other great advantages,
we could form very beneficial treaties with foreign states. But
this can never happen without a change in our system. Were we
not laughed at by that minister of that nation, from which we
may be able yet to extort some of the most salutary measures for
this country? Were we not told that it was necessary to tem-
porize till our government acquired consistency? Will any na-
tion relinquish national advantages to us? You will be greatly
disappointed, if you expect any such good effects from this con-
temptible system. Let us recollect our conduct to that country
30 1 Curtis' Constitutional History of the United States, 556, 557.
Treaties — 2
§§ 17, 18] TREATY CLAUSES OF THE CONSTITUTION. 18
from which we have received the most friendly aid. How have
we dealt with that benevolent ally? Have we complied with our
most sacred obligations to that nation? Have we paid the in-
terest punctually from year to year? Is not the interest ac-
cumulating, while not a shilling is discharged of the principal?
The magnanimity and forbearance of that ally are so great that
she has not called upon us for her claims, even in her own dis-
tress and necessity. ' ' 31
§ 17. Comments of Samuel Adams. — Samuel Adams, of Massa-
chusetts, was at first opposed to the ratification of the Constitu-
tion, but finally gave it his approval. Speaking of the inability
of the confederation to secure the observance of treaties, he said :
"For want of this power in our national head, our friends are
grieved, and our enemies insult us. Our ambassador at the court
of London is considered as a mere cipher, instead of the repre-
sentative of the United States. Therefore, it appears to me, that
a power to remedy this evil should be given to Congress, and the
remedy applied as soon as possible. ' ' 32
§ 18. Formation of Constitution. — The legislature of Virginia
in January, 1786, provided by a resolution for the appointment
of commissioners, who were to meet with such others as should be
appointed by the other states in the Union, at a time and place
to be decided on, "to take into consideration the trade of the
United States ; to examine the relative situation and trade of the
United States ; to consider how far a uniform system in their com-
mercial relations may be necessary, to their common interest, and
their permanent harmony ; and to report to the several states such
an act, relative to this great object, as, when unanimously ratified
by them, will enable the United States in Congress assembled to
provide for the same. ' ' 33 Commissioners from five states only
met at Annapolis in September, 1876, but these agreed to take
no decisive action, but drafted a report to be submitted to the
several states and to Congress, in which they recommended the
appointment of commissions from all the states to meet at Phila-
delphia on the second Monday in May of the following year to
31 3 Elliott's Debates, 135. 33 5 Marshall's Life of Washington,
82 2 Elliott's Debates, 123. 90, 91; 1 Kent's Commentaries, 203.
19 ORGANIZATION OF CONSTITUTIONAL CONVENTION. [§ 19
consider the situation of the United States, and "to devise such
further provisions as shall appear to them necessary, to render
the Constitution of the federal government adequate to the ex-
igencies of the Union ; and to report such an act for that purpose
to the United States in Congress assembled, as when agreed to by
them, and afterward confirmed by the legislature of every state,
will effectually provide for the same."34 While Virginia passed
an act for the appointment of delegates, no progress was made
until Congress, pursuant to a request from the legislature of New
York, adopted on February 21, 1787, a resolution recommending
that a convention meet in Philadelphia on the second Monday in
May, 1788, "for the purpose of revising the articles of confedera-
tion, and reporting to Congress, and the several legislatures, such
alterations and provisions therein, as shall, when agreed to in
Congress, and confirmed by the states, render the federal consti-
tution adequate to the exigencies of the government, and the
preservation of the Union."35
§ 19. Organization of constitutional convention. — It was not
before May 25th that seven states were represented, and on that
day the convention organized by unanimously electing George
Washington president. A serious dispute arose over the method
of" representation, whether it should be by states or in propor-
tion to population, which finally resulted in a compromise of the
antagonistic interests by allowing proportional representation in
one branch of Congress and representation by states in the other.
On July 26th, the various resolutions to which assent had been
given were submitted to a Committee of Detail, of five members, con-
sisting of Butledge, Randolph, Gorham, Ellsworth and Wilson,
and an adjournment was taken to August 6th, to enable the com-
mittee to prepare the form of a constitution. The Committee on
Detail reported to the convention, and after many acrimonious
debates on the various propositions advanced, the convention
finally, on September 8th, appointed a committee of five, consist-
ing of Johnson, Hamilton, Gouverneur Morris, Madison and King,
to make a revision of the language and arrangement of the articles
34 5 Marshall 's Life of Washington, 35 5 Marshall 's Life of Washington,
97; 1 Amer. Museum, 267, 268. 124, 125; 2 Pitk. Hist., 219, 220; 12
Journals of Congress, 12.
§ 20] TREATY CLAUSES OF THE CONSTITUTION. 20
adopted. This Committee on Style reported to the convention
on September 12th of that year, after which a number of un-
important amendments were made, but among others, after this
report had been submitted, the convention adopted an amend-
ment authorizing one representative for every thousand people,
and another that no state should, unless it consented, lose its
equal representation in the Senate. Congress received the report
of the convention on September 28, 1787, and unanimously
adopted a resolution declaring "that the said report, with the
resolutions and letter accompanying the same, be transmitted to
the several legislatures in order to be submitted to a convention
of delegates chosen in each state by the people thereof; in con-
formity to the resolves of the convention, made and provided in
that case."36
§ 20. Address to Congress. — The letter referred to in the reso-
lution quoted above, addressed to Congress, stated that it was
impracticable to provide for the interest and safety of all the
states, and at the same time to secure all the rights of independ-
ent sovereignty to each. "Individuals entering into society,"
said the address, "must give up a share of liberty to preserve the
rest. The magnitude of the sacrifice must depend as well on situ-
ation and circumstance as on the object to be attained. It is at
all times difficult to draw with precision the line between these
rights and those which may be reserved ; and on the present occa-
sion, the difficulty was increased, by a difference among the sev-
eral states, as to their situation, extent, habits, and particular
interests. In all our deliberations on the subject, we kept stead-
ily in our view that which appears to us the greatest interest of
every true American, the consolidation of our Union, in which is
involved our prosperity, felicity, safety, perhaps our national ex-
istence. This important consideration, seriously and deeply im-
pressed on our minds, led each state in the convention to be less
rigid on points of inferior magnitude than might have been other-
wise expected. And thus the Constitution, which we now pre-
sent, is the result of a spirit of amity, and of that mutual defer-
ence and concession, which the peculiarity of our political situa-
36 5 Marshall's Life of Washington, III, 323; Elliott, V, 191; Conway's
128; 12 Journal of Congress, 99, 110. Randolph, p. 71.
See, also, Spark 's Gouverneur Morris,
21 COMMENTS OF JOHN JAY. [§21
tion rendered indispensable."37 The Constitution having been
ratified by the requisite number of states, a resolution was passed
by Congress on September 13, 1788, fixing the first Wednesday in
January, 1789, for the assembling of electors to choose a Pres-
ident, and designating the first Wednesday in March of that year
for the inauguration of the government under the Constitution.
§ 21. Comments of John Jay. — With reference to the clause
of the Constitution relating to the negotiation and ratification of
treaties, he said: "Some are displeased with the Constitution, not
on account of any errors or defects in it, but because, as the
treaties, when made, are to have the force of laws, they should
be made only by men invested with legislative authority. These
gentlemen seem not to consider that the judgments of our courts,
and the commissions constitutionally given by our governor, are
as valid and as binding on all persons whom they concern, as the
laws passed by our legislature. All constitutional acts of power,
whether in the executive or the judicial department, have as
much legal validity and obligation as if they proceeded from the
legislature ; and therefore, whatever name may be given to the
power of making treaties, or however obligatory they may be
when made, certain it is, that the people may, with much pro-
priety, commit the power to a distinct body from the legislature,
the executive, or the judiciary. It surely does not follow that
because they have given the power of making laws to the legis-
lature, that therefore they should likewise give them power to
do every other act of sovereignty by which the citizens are to be
bound and affected. Others^ though content that treaties should
be made in the mode proposed, are averse to their being the
supreme laws of the land. They insist, and profess to believe,
that treaties, like acts of assembly, should be repealable at pleas-
ure. This idea seems to be new and peculiar to this country;
but new errors as well as new truths often appear. These gen-
tlemen would do well to reflect that a treaty is only another
name for a bargain, and that it would be impossible to find a
nation who would make any bargain with us which would be
binding on them absolutely, but on us only so long and so far as
we may think proper to be bound by it. They who make ]aws may,
87 12 Journal of Congress, 99, 110; 5 Marshall's Life of Washington, 128.
§ 21] TREATY CLAUSES OF THE CONSTITUTION. 22
without doubt, amend or repeal them, and it will not be dis-
puted that they who make treaties may alter or cancel them;
but still let us not forget that treaties are made, not only by
one of the contracting parties, but by both; and consequently,
that as the consent of both was essential to their formation at
first, so must it ever afterward be to alter or cancel them. 1'he
proposed Constitution, therefore, has not in the least extended
the obligation of treaties. They are just as binding and just as
far beyond the lawful reach of legislative acts now as they will
be at any future period or under any form of government."
But, as we shall see on a subsequent page, Jay was mistaken as
to the immutability of treaties, because it is settled that a treaty
may be repealed or rendered inoperative by a later act of Con-
gress.
38 1 Lodge, Federalist, 403, 404.
23 PROHIBITION ON STATES. [§§ 22, 23
CHAPTER II.
PEOHIBITION ON STATES.
§ 22. Prohibitory clauses.
§ 23. History of this clause.
§ 24. Confederate states had no legal existence.
§ 25. Constitutional objections to statute.
§ 26. Surrender of treaty power to general government.
§ 27. Investment by guardian in Confederate bonds.
§ 28. Discharge of executor investing in Confederate bonds.
§ 29. Confederacy an organized treason.
§ 30. Contracts to aid the confederacy void.
§ 31. Ordinance of secession a nullity.
§ 32. Sale of property of loyal owners.
§ 33. Laws in aid of insurrection void.
§ 34. Judgments of courts, when void.
§ 35. No general rule to be applied.
§ 36. State cannot negotiate for extradition.
§ 37. Holmes case.
§ 38. Treaties now govern.
§ 22. Prohibitory clauses.— The Constitution contains two
clauses prohibiting the states of the Union from entering into
treaties with foreign powers or entering into any agreement or
compact with another state or with a foreign power.
The first clause provides that "No State shall enter into any
treaty, alliance, or confederation; grant letters of marque and
reprisal; coin money; emit bills of credit; make anything but
gold and silver coin a tender in payment of debts; pass any
bill of attainder, ex post facto law, or law impairing the obliga-
tion of contracts, or grant any title of nobility. ' ' 1 The other clause
will be noticed in the following chapter.
§ 23. History of this clause. — This provision originated in the
Committee on Detail, who reported among other prohibitions to
be placed on the states that "No state shall coin money, nor
grant letters of marque and reprisal, nor enter into any treaty,
alliance or confederation, nor grant any title of nobility." The
clause was amended by the convention by prohibiting the emission
of bills of credit, or the making of anything but gold and silver
1 Const., art. I, sec. 10, cl. 1.
§ 24] PROHIBITION ON STATES. 24
coin a tender in payment of debts. The clause as amended by the
convention then read: "No state shall coin money, nor emit bills
of credit, nor make anything but gold and silver coin a tender
in payment of debts; nor grant letters of marque and reprisal;
nor enter into any treaty, alliance, or confederation; nor grant
any title of nobility. ' ' Finally, on September 14th, after the re-
port of the Committee on Style, to whom the clause had been
referred, submitted their report, the phraseology was changed
to the form in which it now appears.
§ 24. Confederate states had no legal existence. — The organi-
zation known as the Confederate states cannot be regarded under
this clause of the Constitution as having any legal existence. The
Confederate states enacted a law sequestering the property and
rights held by or for any alien enemy since May 21, 1861, except
such debts as may have been paid into the treasury of one of
the Confederate states before the passage of the law, and making it
the duty of every agent or trustee holding or controlling any such
interest or property to inform the receiver of the Confederate
states of the fact, and to render an account thereof, and to place
the same in the hands of the receiver, so far as practicable. The
statute declared that the person placing the property in the
hands of such receiver should be acquitted of all responsibility
for the property thus transferred, and that any person failing
to give the information described should be guilty of a misde-
meanor. In an action of assumpsit for goods sold, a plea was
interposed of this statute, and payment thereunder of the amount
claimed by plaintiff to the receiver of the Confederate states. It
was contended that the supreme court had no appellate jurisdic-
tion, but the court held that the jurisdiction of the court could
be sustained, among other grounds, upon the fact that the com-
pact made by the states forming the confederacy was in violation
of the clause prohibiting any treaty, alliance or confederation by
one state with another. As the confederacy could not legally
exist, whatever legal force the enactment possessed was due solely
to the sanction given to it by the individual state. Any enact-
ment, from whatever source it might originate, to which a state
gives the force of law. was considered to be a statute of the state
within the meaning of the provisions conferring appellate juris-
diction upon the supreme court. "It would be a narrow construe-
25 CONSTITUTIONAL OBJECTIONS TO STATUTE. [§ 25
tion, ' ' said Mr. Justice Field, delivering the opinion of the court,
"to limit the term to such enactments as have gone through vari-
ous stages of consideration by the legislature. There may be
many acts authorized by the Constitution of a state, or by the
convention that framed it, which have not been submitted to the
consideration of its legislature, yet have all the efficacy of laws.
By the only authority which can be recognized as having any
legal existence, that is the state of Virginia, this act of the
unauthorized confederation was enforced as a law of the common-
wealth."2
§ 25. Constitutional objections to statute. — It was asserted
that this statute was repugnant to the Constitution of the United
States because it impaired the obligation of a contract, and that
it discriminated against the citizens of a loyal state and refused
them the same privileges accorded to the citizens of Virginia
violating the provision declaring that "citizens of each state shall
be entitled to all the privileges and immunities of citizens of the
several states. ' ' It was also contended that the enactment of the
Confederate states was that of an independent nation, but the
court decided that it could not be treated either as the act of an
independent nation or of a de facto government, but must be con-
sidered as the act of a portion of a state attempting unsuccessfully
to establish a separate revolutionary government, which, with the
overthrow of its military forces, perished completely with all its
enactments. While belligerent rights may have been conceded to
the Confederate states, this concession conferred no other -rights,
approved no hostile legislation, and impaired in no degree the
rights of loyal citizens as they had existed when hostilities com-
menced.3 The Constitution was as much intended to preserve
the government of the separate states as it was to preserve the
government of the Union itself, and, hence, the rights and ob-
2 Williams v. Bruffy, 96 U. S. 183, mutual sympathies, kindred principles,
24 L. ed. 716. similar interests and geographical re-
3 Williams v. Bruffy, 96 U. S. 183, lations. It was confirmed and strength-
24 L. ed. 716. ened by the necessities of war, and
Mr. Chief Justice Chase, in Texas received definite form, and character,
v. White, 7 Wall. 700, 19 L. ed. 227, and sanction from the Articles of Con-
said : ' < The Union of the States never federation. By these the Union was
was a purely artificial and arbitrary solemnly declared to 'be perpetual.'
relation. It began among the Col- And when these Articles were found
onies, and grew out of common origin, to be inadequate to the exigencies of
§ 25]
PROHIBITION ON STATES.
26
ligations of the citizens of the seceding states could not be al-
tered or affected by any ordinance of secession.
the country, the Constitution was or-
dained 'to form a more perfect
Union. ' It is difficult to convey the
idea of indissoluble unity more clearly
than by these words. What can be
indissoluble if a perfect Union, made
more perfect, is not?
"But the perpetuity and indis-
solubility of the Union by no means
implies the loss of distinct and in-
dividual existence, or of the right of
self-government by the States. Under
the Articles of Confederation each
State retained its sovereignty, free-
dom and independence, and every
power, jurisdiction and right not ex-
pressly delegated to the United States.
Under the Constitution, though the
powers of the States were much re-
stricted, still, all powers not delegated
to the United States, nor prohibited
to the States, are reserved to the
States respectively to the people. And
we have already had occasion to re-
mark at this term, that 'the people of
each State compose a State, having its
own government, and endowed with all
the functions essential to separate
and independent existence,' and that
'without the States in union, there
could be no such politicalbody as the
United States. ; Lane Co. v. Oregon
(infra, 101). Not only, therefore,
can there be no loss of separate and
independent autonomy to the States,
through their union under the Con-
stitution, but it may be not unreason-
ably said that the preservation of the
States, and the maintenance of their
governments, are as much within the
design and care of the Constitution
as the preservation of the Union and
the maintenance of the National Gov-
ernment. The Constitution, in all its
provisions, looks to an indestructible
Union, composed of indestructible
States.
' ' When, therefore, Texas became
one of the United States, she entered
into an indissoluble relation. All the
obligations of perpetual union, and all
the guaranties of republican govern-
ment in the Union, attached at once
to the State. The Act which consum-
mated her admission into the Union
was something more than a compact;
it was the incorporation of a new
member into the political body. And
it wras final. The Union between
Texas and the other States was as
complete, as perpetual and as in-
dissoluble as the Union between the
original States. There was no place
for reconsideration, or revocation, ex-
cept through revolution, or through
consent of the States.
"Considered, therefore, as the
transactions under the Constitution,
the Ordinance of Secession, adopted
by the convention and ratified by a
majority of the citizens of Texas, and
all the Acts of her Legislature in-
tended to give effect to that ordi-
nance, were absolutely null. They
were utterly without operation in law.
The obligations of the State as a
member of the Union, and of every
citizen of the State as a citizen of the
United States, remained perfect and
unimpaired. It certainly followed
that the State did not cease to be a
State, nor her citizens to be citizens
of the Union. If this were otherwise,
the State must have become foreign,
and her citizens foreigners. The war
must have ceased to be a war for the
suppression of rebellion, must have
become a war for conquest and sub-
jugation.
27 SURRENDER OF TREATY POWER TO GENERAL GOVERNMENT. [§ 26
§ 26. Surrender of treaty power to general government. — By
this clause and the clause conferring upon the President, with the
advice and consent of the Senate, the power to make treaties, the
treaty-making power has been surrendered by the states to the
general government. "There can be no mistaking the signifi-
cance or effect of these plain, concise, emphatic provisions."4
Under our system of government, the Constitution, laws and
treaties of the United States are a part of the law of every state
to the same extent as are its own Constitution and laws, for if
the national government is not empowered to stipulate by treaty
as to the rights, privileges and immunities of foreigners residing
in the United States, the power does not exist at all, because it is
denied to the states.
' ' Our conclusion, therefore, is, that
Texas continued to be a State, and a
State of the Union, notwithstanding
the transactions to which we have re-
ferred. And this conclusion, in our
judgment, is not in conflict with any
act or declaration of any department
of the National Government, but en-
tirely in accordance with the whole
series of such acts and declarations
since the first outbreak of the Ke-
bellion.
"But in order to the exercise, by
a State, of the right to sue in this
court, there needs to be a State Gov-
ernment, competent to represent the
State in its relations with the National
Government, so far at least as the
institution and prosecution of a suit
is concerned.
"And it is by no means a logical
conclusion, from the premises which
we have endeavored to establish, that
the governmental relations of Texas
to the Union remain unaltered. Obli-
gations often remain unimpaired,
while relations are greatly changed.
The obligations of allegiance to the
State, and obedience to her laws, sub-
ject to the Constitution of the United
States, are binding upon all citizens,
whether faithful or unfaithful to
them; but the relations which subsist
while these obligations are performed,
are essentially different from those
which arise when they are disregarded
and set at nought.
"And the same must necessarily be
true of the obligations and relations
of States and citizens to the Union.
No one has been bold enough to con-
tend that, while Texas was controlled
by a government hostile to the United
States, and in affiliation with a hostile
confederation, waging war upon the
United States, Senators chosen by
her Legislature, or Eepresentatives
elected by her citizens, were entitled
to seats in Congress; or that any suit,
instituted in her name, could be enter-
tained in this court. All admit, that
during this condition of civil war, the
rights of the State as a member, and
of her people as citizens of the Union,
were suspended. The government and
the citizens of the State, refusing to
recognize their constitutional obliga-
tions, assumed the character of
enemies, and incurred the consequences
of rebellion. ' '
* In re Tiburcio Parrott, 1 Fed. 501,
6 Saw. 349, per Sawyer, J.
§§ 27-29] PROHIBITION ON STATES. 28
§ 27. Investment by guardian in Confederate bonds. — It was
unlawful for a guardian to invest money of his ward during the
war of the Rebellion, while both he and the ward were residing
in the territory of the enemy, in bonds of the so-called Confed-
erate states. The guardian is responsible to the ward for all the
money so invested by him.5
"The so-called Confederate government was in no sense a
lawful government, but was a mere government of force, having
its origin and foundation in rebellion against the United States
The notes and bonds issued in its name and for its support had no
legal value as money or property, except by agreement or accept-
ance of parties capable of contracting with each other, and can
never be regarded by a court sitting under the authority of the
United States as securities in which trust funds might be law-
fully invested. ' ' 6
§ 28. Discharge of executor investing in Confederate bonds.—
An executor cannot be Discharged from liability to the legatees,
because, in pursuance of the terms of a state statute and with
the approval of the probate court appointing him he had invested
the funds of the estate in bonds of the Confederate states, which,
while he held them, became worthless.7
§ 29. Confederacy an organized treason. — While the acts of
the states in rebellion in the ordinary course of administration
of law should, in the interests of civil society, be upheld, still
the government of the confederacy had no existence excepting as
an organized treason. During its continuance, its purpose was
to subvert the lawful government, and its laws and decrees. No
validity can be derived from its authority, for any act performed
in its service or in aid of its purpose. Hence a person purchas-
ing cotton from the Confederate states, knowing that the money
paid by him went to sustain the Rebellion, cannot recover the
proceeds in the court of claims, when it has been captured and
sold under the Captured and Abandoned Property Act. In a
court of law, the moral turpitude of the transaction is such that
5 Lamar v. Micou, 112 U. S. 453, 5 Micou, 112 U. S. 453, 5 Sup. Ct. Eep.
Sup. Ct. Kep. 221, 28 L. ed. 751. 221, 28 L. ed. 751.
6 Mr. Justice Gray, in Lamar v. T Horn v. Lockhart, 84 U. S. (17
Wall.) 570, 21 L. ed. 657.
29 CONFEDERACY AN ORGANIZED TREASON. [§ 29
he should not be allowed to establish his title by proving such a
transaction.8
Mr. Justice Miller, who delivered the opinion of the court, in the
case just cited, said that the fact that the claimant did not intend to
aid the Rebellion, but only to make money, did not relieve the case
of its harsh features, and speaking of the government of the Confed-
erate states said : " So far from being necessary to the organization
of civil government, or to its maintenance and support, it was in-
imical to social order, destructive to the best interests of society,
and its primary object was to overthrow the Government on
which these so largely depended. Its existence and temporary
powers were an enormous evil, which the whole force of the Gov-
ernment and the people of the United States was engaged for
years in destroying. When it was overthrown it perished totally.
It left no laws, no statutes, no decrees, no authority which can
give support to any contract, or any act done in its service, or in
aid of its purpose, or which contributed to protract its existence.
So far as the actual exercise of its physical power was brought
to bear upon individuals, that may, under some circumstances,
constitute a justification or excuse for acts otherwise indefen-
sible ; but no validity can be given in the courts of this country to
acts voluntarily performed in direct aid and support of its
unlawful purpose. What of good or evil has flowed from it re-
mains for the consideration and discussion of the philosophical
statesman and historian. ' ' 9
8 Sprott v. United States, 87 If. S. citizen of Mississippi, and resided
(20 Wall.) 459, 22 L. ed. 371. within the lines of the Confederacy,
0 Sprott v. United States, supra. and the Act forbidding intercourse
Justices Clifford and Davis concurred with the enemy does not apply to his
in the judgment. Mr. Justice Field case. He was subject to be treated,
dissented, and said there was no ques- in common with other citizens of the
tion of enforcing a contract in the Confederacy, as a public enemy, dur-
case, and that the only question was ing the continuance of the war. And
whether the cotton, at the time of if he were disloyal in fact, and if by
seizure, was the property of the claim- his purchase of the cotton he gave
ant. "If it was his property, ' ' said aid and comfort to the rebellion, as the
he, "then he is entitled to its pro- court adjudges, the impediment which
ceeds, and the judgment of the Court such conduct previously interposed to
of Claims should be reversed; and in the prosecution of his claim was re-
determining this question we are not moved by the proclamation of Pardon
concerned with the consideration of and Amnesty made by the President
his loyalty or disloyalty. He was a on the 25th day of December, 1868.
§§ 30, 31] ' PROHIBITION ON STATES. .30
§ 30. Contracts to aid the confederacy void. — All contracts
entered into for the purpose of aiding the Confederate govern-
ment are considered illegal and void, and will not be enforced in
the federal tribunals.10 An agent living in one of the states in
rebellion had no right to take Confederate money, or bank notes
secured by Confederate bonds, in discharge of a debt due to his
principal, who lived in a state loyal to the Union.11
§ 31. Ordinance of secession a nullity. — The ordinances of
secession passed by various southern states were absolutely void,
and in no manner affected the jurisdiction of the supreme court
of the state nor the relation it always bore to the appellate power
of the supreme court of the United States.12 The state continued
to be during the Rebellion the same political organization as be-
fore,13 and, therefore, a state adjudication in favor of the validity
of an act of the Confederate Congress, which the state recognizes
and enforces as a law, and which must, consequently, be consid-
ered as a statute of that state, is subject to review by the supreme
court of the United States.14 In the jurisprudence of that court
nothing is more firmly established than that all acts done in aid
of the Rebellion were illegal and of no validity.15
.... He was in possession of the land, except such as becomes booty
property at the time of the seizure, as- when taken from enemies in the field
serting ownership to it; and no one or besieged towns, or is levied as a
then disputed, and no one since has military contribution upon the inhab-
disputed his title. Who, then, owned itants of the hostile territory, is ex-
the property, if he did not. The empf from confiscation by the general
United States did not own it. They law of nations."
did not acquire by its seizure any title 10 Hanauer v. Doane, 79 U. S. (12
to the property. They have never as- Wall.) 342, 20 L. ed. 439; Hanauer
serted any greater rights arising v. Woodruff, 82 U. S. (15 Wall.) 439,
from captuie of property on land in 21 L. ed. 224.
the hands of citizens engaged in the " Fretz v. Stover, 89 U. S. (22
rebellion, than those which one bellig- Wall.) 198, 22 L. ed. 769.
erent nation asserts with reference to ia White v. Cannon, 6 Wall. 443,
such property captured by it belong- 450, 18 L. ed. 923.
ing to the citizens or subjects of the 13 Keith v. Clark, 7 Otto, 454, 24
other belligerent. All public property L. ed. 1071.
which is movable in its nature, pos- 14 Ford v. Surget, 7 Otto, 594, 24
sessed by one belligerent, and employ- L. ed. 1018.
nd on land in actual hostilities, passes 13 Dewing v. Perdicaris, 6 Otto,
by capture. But private property on 193, 24 L. ed. 654.
31 SALE OF PROPERTY OF LOYAL OWNERS. [§§ 32, 33
§ 32. Sale of property of loyal owners.— Neither a purchaser
nor his assignee can obtain any title to the property of loyal
owners, sequestered and sold under a statute of the Confederate
states.16 A court created by an act of the Confederate Congress
was a nullity, and could possess no rightful jurisdiction, and it
afforded no protection to those who assumed to be its officers.17
§ 33. Laws in aid of insurrection void. — The courts of the
United States cannot recognize as valid or binding any law
made to aid or promote the Rebellion. A law passed by a legis-
lature of a state in rebellion authorizing and requiring & city to
redeem notes issued by it as currency did not make such bills
valid.18 So, treasury notes authorized to be issued by the legis-
lature of Mississippi, when it was in insurrection, inasmuch as
they were issued against the public policy and in violation of the
Constitution of the United States, are illegal and void, and can-
not be received in payment of taxes.19 While the courts declared
that it was impossible to state by exact definitions what acts of
such government were valid and what invalid, still, it was
conceded that acts necessary to peace and good order among
citizens, such as those sanctioning and protecting marriage and
the domestic relations, governing the course of descents, regulat-
16 Dewing v. Perclicaris, 6 Otto, 193, Foote, 27 Ohio St. 600, 22 Am. Eep.
24 L. ed. 654; Central R. etc. Co. v. 340; Harlan v. State, 41 Miss. 566;
Ward, 37 Ga. 515. See, also, United Hood v. Maxwell, 1 W. Va. 219.
States v. One Thousand Five Hun- 1S Thomas v. City of Eichmond, 12
dred Bales Cotton, 27 Fed. Gas. No. Wall. 349, 20 L. ed. 453.
15,958. 19 Taylor v. Thomas, 22 Wall. 479,
17 Hickman v. Jones, 9 Wall. 197, 22 L. ed. 789. See, also, Evans v.
19 L. ed. 551. And see as to the Eichmond, Chase (U. S.), 551, 8 Fed.
nullity of ordinances of secession, Cas. No. 4570; Huntington v. Texas,
Keppel v. Petersburg E. Co., Chase, 16 Wall. 411, 21 L. ed. 316; Hatch v.
167, 14 Fed. Cas.. No. 7722; United Burroughs, 1 Woods (U. S.), 439, 11
States v. Cathcart, 1 Bond, 556, 25 Fed. Cas. No. 6203; Perdicaris v.
Fed. Cas. No. 14,756; Shortridge v. Charleston Gaslight Co., Chase (U. S.),
Macon, Chase, 136, 22 Fed. Cas. No. 435, 19 Fed. Cas. No. 10,974; Isaacs
12,812; Penn v. Tollison, 26 Ark. 545; v. Eichmond, 90 Va. 30, 17 S. E. 760;
Hawkins v. Filkins, 24 Ark. 286; Eand v. State, 65 N. C. 194, 6 Am.
Scruggs v. Huntsville, 45 Ala. 222; Eep. 741; Mississippi Cent. E. Co. v.
Nosely v. Tuthill, 45 Ala. 621, 6 Am. State, 46 Miss. 157; Buchanan v.
Eep. 710; Ex parte Norton, 44 Ala. Smith, 43 Miss. 91; Sequestration
180; Eay v. Thompson, 43 Ala. 434, Cases, 30 Tex. 689, 98 Am. Dec. 494.
94 Am. Dec. 696; Pennywitt v.
§ 34] PROHIBITION ON STATES. 32
ing the conveyance and transfer, real and personal, of property,
providing remedies for injuries to person and estate, and similar
acts which would be valid if proceeding from a lawful govern-
ment, should in general be. considered valid as though they had
emanated from an actual, though unlawful, government. On the
other hand, acts in furtherance or support of rebellion, or in-
tended to defeat the just rights of citizens, must be regarded, in
general, as invalid and void.20
§ 34. Judgments of courts, when void. — Where legislation of
the revolutionary legislatures enacted for the purpose of aiding
the Rebellion, or which deprived citizens of the United States
of their just rights, was effectuated by judgments and decrees of
courts, such judgments and decrees are void, and no subsequent
legislation can validate them.21 After the state of Virginia had
passed an ordinance of secession, a law was enacted which de-
clared that after its enactment, no execution, except in favor of
the state and against nonresidents, should be issued, and that no
sales should be made under deeds of trust or decrees without the
consent of the parties interested, until otherwise provided by
law. This clause that no executions should issue or sales be made
was, the court decided, clearly in conflict with the contract clause
of the Constitution. The exception in the statute as to executions
in favor of the commonwealth and against nonresidents obviously
contemplated the confiscation of the latter as a war measure,
and was invalid by reason of the treasonable motive and purpose
which prompted its authors to pass it.22 Although the states
were in rebellion, only such acts as impaired or tended to impair
the national supremacy were invalid, but all others that tended
to preserve order, protect property or maintain police regulations
were valid.23
20 Texas v. White, 7 Wall. 733, 19 453; United States v. Home Ins. Co.,
L. ed. 227. 22 Wall. 103, 22 L. ed. 816; Sprott
21 Van Epps v. Walsh, 1 Woods v. United States, 20 Wall. 459, 22
(U. S.), 598, 28 Fed. Gas. No. L. ed. 371; Wallace v. State, 33
16,850. Tex. 445; Evans v. Eichmond, Chase
22 Daniels v. Tearney, 102 U. S. 419, (U. S.), 551, 8 Fed. Cas. No. 4570;
26 L. ed. 187. Cook v. Oliver, 1 Woods (U. S.), 437,
23 Horn v. Lockhart, 17 Wall. 580, 6 Fed. Cas. No. 3164; Chappell v.
21 L. ed. 657. And see, also, Thomas Doe, 49 Ala. 155; Calhoun v. Kellogg,
v. Kichmond, 12 Wall. 357, 20 L. ed. 41 Ga. 240; Buchanan v. Smith, 43
33 NO GENERAL RULE TO BE APPLIED. [§§ 35-37
§ 35. No general rule to be applied.— Between the extremes
of what was unlawful and what was lawful there was a large
variety of transactions, to which no general rule can be applied.
Such transactions between individuals as would have been bind-
ing and legal under ordinary circumstances cannot be declared
illegal and of no obligation because they were done in conform-
ity with laws enacted by a usurping authority. But such trans-
actions of the usurping power as prejudiced the interests of cit-
izens of other states excluded by the insurrection and by the
policy of the national government from the care and protection
of their own interests within the states in rebellion cannot be sus-
tained by the courts.24 In other words, when the decision of the
court could not, from the nature of the case, be influenced by the
rebellion in existence, the judgment of the court is binding on the
parties who w^ere actually within the jurisdiction of the court.25
§ 36. State cannot negotiate for extradition. — Under this
clause of the Constitution a state cannot enter into any negotiation
with a foreign power on the subject of the extradition of those
charged with crime. This is included within the treaty-making
power of the federal government and the corresponding power of
appointing and receiving ambassadors and other public ministers.
There is no reason why states should in their own name make
a demand upon foreign nations for the surrender of fugitives from
justice; nor should they enter into those relations with such
nations as the extradition of fugitives necessarily implies.26 In
1872 an act of the legislature of the state of New York, author-
izing the rendition to foreign states of fugitives from justice,
was held to be in conflict with the Constitution of the United
States.27
§ 37. Holmes case. — The power of a state to surrender a fugi-
tive from justice came before the supreme court of the United
Miss. 90; Hill v. Boylan, 40 Miss. 25 Cook v. Oliver, 1 Woods (U. S.),
618; Morgan v. Keenan, 1 S. C. 327; 437, 6 Fed. Gas. No. 3164.
Prince William School Board v. Stu- 26 United States v. Eauscher, 119
art, 80 Va. 81; Frierson v. Presby- U. S. 407, 7 Sup. Ct. Eep. 234, 30 L.
terian Church, 7 Heisk. (Tenn.) 705. ed. 425.
24 Keppel v. Petersburg E. Co., 2T People v. Curtis, 50 N. Y. 321, 10
Chase (U. S.), 167, 14 Fed. Cas. No. Am. Eep. 483.
7722.
Treaties — 3
§ 37] PROHIBITION ON STATES. 34
States in Holmes v. Jennison,28 in 1840. George Holmes, a nat-
uralized citizen of the United States, who was charged with
having committed murder in Lower Canada, was confined in
Vermont under a warrant of arrest issued by the governor of
that state, directing the sheriff of one of the counties to convey
and deliver him to the agent of Canada, "or to such person or
persons as by the laws of said province may be authorized to
receive the same, at some convenient place on the confines of this
state and the said Province of Lower Canada, to the end that he.
the said George Holmes, may be thence conveyed to the said
District of Quebec, and be there dealt with as to law and justice
appertains. ' ' At that time no extradition treaty existed between
the United States and Canada, and hence the President declined
to act, alleging a want of power. Holmes secured a writ of
habeas corpus from the supreme court of Vermont, and in his
return to the writ the sheriff stated that he detained him under
an order from the governor, commanding him, the sheriff, to
deliver the prisoner up to the authorities of Lower Canada. The
supreme court of that state held the return to be sufficient.
Holmes then prosecuted a writ of error to the supreme court of
the United States. In this proceeding two questions were pre-
sented to the court: First, whether a writ of error would lie
from the supreme court of the United States to the supreme court
of the state ; and second, whether the judgment of the state court
was right. The case was heard before eight judges of the federal
supreme court, who, on the first of these questions, equally di-
vided, thus preventing an authoritative decision upon the prin-
cipal question. Chief Justice Taney, in his opinion, upheld the
appellate jurisdiction of the supreme court of the United States,
and declared against the right attempted to be exercised by the
governor of Vermont, and his opinion was concurred in by Jus-
tices Story, McLean and Wayne. Separate opinions, in which
Justice Baldwin joined, were delivered by Justices Thompson, Bar-
bour and Catron, in which the power of the supreme court of
the United States to revise the judgment of the supreme court
of Vermont was denied, but in which any clear opinion upon
the power of the authorities of the state of Vermont, executive
or judicial, to deliver Holmes to the government of Canada was
28 14 Pet. 540, 10 L. ed. 579.
35 TREATIES NOW GOVERN. [§ 38
not expressed. Upon the return of the case to the supreme
court of Vermont, Holmes was discharged, the chief justice of
that court saying: "I am authorized by my brethren, to say that
on an examination of this case, as decided by the Supreme Court
of the United States, they think, if the return had been as it now
is, a majority of that court would have decided that Holmes was
entitled to his discharge, and that the opinion of a majority of
the Supreme Court of the United States was also adverse to the
exercise of the power in question by any of the separate states
of the Union."29
§ 38. Treaties now govern. — The supreme court of the United
States sustained, later, the opinion of Chief Justice Taney, that
the power exercised by the governor of Vermont was a part of
the foreign intercourse of this country conferred upon the
federal government, but said: "Fortunately, this question, with
others, which might arise in the absence of treaties or Acts of
Congress, on the subject, is now of very little importance, since,
with nearly all the nations of the world with whom our relations
are such that fugitives from justice may be found within their
dominions or within ours, we have treaties which govern the
rights and conduct of the parties in such cases. These treaties are
also supplemented by Acts of Congress, and both are in their
nature exclusive. ' ' 30
29 Ex parte Holmes, 12 Vt. 631. U. S. 407, 7 Sup. Ct. Bep. 234, 30
30 United States v. Rauscher, 119 L. ed. 425.
39] COMPACTS BETWEEN STATES. 36
CHAPTER III.
COMPACTS BETWEEN STATES.
§ 39. Clause as to compact with other states.
§ 40. Nature of compacts that may be made by states.
§ 41. Extent and meaning of clause.
§ 42. To what compacts does the Constitution apply.
§ 43. Boundaries between two states.
§ 44. Controversies at time of adoption of Constitution.
§ 45. Boundary between South Dakota and Nebraska.
§ 46. Construing compacts between two states.
§ 47. Disputed boundary between United States and state.
§ 48. Suits by state to recover penalties.
§ 49. Approval of Congress implied from subsequent legislation.
§ 50. Creation of mutual estoppel.
§ 51. Contract of state to exempt property from taxation.
§ 52. Subsequent statutes directing taxation of such property.
§ 53. Compacts relating to property.
§ 39. Clause as to compacts with other states. — Another clause
of the Constitution prohibiting a state from making a compact
or agreement with another state or with a foreign power is the
following: "No state shall, without the consent of Congress, lay
any duty of tonnage, keep troops, or ships of war in time of peace,
enter into any agreement or compact with another state, or with
a foreign power, or engage in war, unless actually invaded, or in
such imminent danger as will admit of no delay. ' ' 1 This clause,
as originally reported by the Committee on Detail, was num-
bered Article XIII, and road: "No state, without the consent of
the legislature of the United States, shall emit bills of credit, nor
make anything but specie a tender in payment of debts; nor lay
imposts or duties on imports; nor keep troops or ships of war
in time of peace ; nor enter into any agreement or compact with
another state, or with any foreign power; nor engage in any
war, unless it shall be actually invaded by enemies, or the dan-
ger of invasion be so imminent as not to admit of a delay until
the legislature of the United States can be consulted. ' '
1 Const., art. I, sec. 10, cl. 3.
37 NATURE OF COMPACTS THAT MAY BE MADE BY STATES. [§ 40
The provisions as to bills of credit and tender were transferred
to the first clause of the section, and finally, after the Committee
on Style had reported, the convention remodeled the clause and
adopted it in its present form.
§ 40. Nature of compacts that may be made by states.— While
it may be impossible to state with absolute accuracy what com-
pacts or agreements may be made by the states individually, yet
it is clear that the inhibition upon the power of the states is
aimed at the formation of any combination having a tendency
to augment the political power in the states which may diminish
or interfere with the supremacy of the general government.
Judge Story, in commenting upon this clause of the Constitution,
after referring to the prohibition against a state entering into
treaties, alliances, or confederations, and its power, with the
consent of Congress, to enter into an agreement or compact with
another state or with a foreign power, observes: "What precise
distinction is here intended to be taken between treaties, agree-
ments and compacts, is nowhere explained, and has never as yet
been subjected to any exact judicial, or other examination. A
learned commentator, however, supposes that the former ordinar-
ily relate to subjects of great national magnitude and importance,
and are often perpetual, or for a great length of time; but that
the latter relate to transitory or local concerns, or such as cannot
possibly affect any other interests but those of the parties. But
this is at best a very loose and unsatisfactory exposition, leaving
the whole matter open to the most latitudinarian construction.
What are subjects of great national magnitude and importance?
Why, may not a compact or agreement between states be per-
petual? If it may not, what shall be its duration? Are not
treaties often made for short periods, and upon questions of local
interest, and for temporary objects?"2 He then remarks that
the language of the clause, preventing treaties, alliances or con-
federations, may plausibly be interpreted from the terms used;
and "upon the ground that the sense of each is best known by
its association (noscitur a sociis) to apply to treaties of a political
character; such as treaties of alliance for purposes of peace and
war; and treaties of confederation, in which the parties are
2 2 Stoiy on Constitution, sec. 1402, citing 1 Tucker's Blackstone's Com-
mentaries, App. 310.
§ 41] COMPACTS BETWEEN STATES. 38
leagued for mutual government, political co-operation, and the
exercise of political sovereignty, or conferring internal political
jurisdiction, or external political dependence, or general com-
mercial privileges. The latter clause, ' compacts and agreements,'
might then very properly apply to such as regarded what might
be deemed mere private rights of sovereignty; such as questions
of boundary; interests in land situated in the territory of each
other ; and other internal regulations for the mutual comfort and
convenience of states, bordering on each other. ' ' 3
§ 41. Extent and meaning of clause. — In an original suit in
the supreme court of the United States to establish by judicial
decree the true boundary line between the states of Virginia and
Tennessee, and in which the boundary line as established by the
compact of 1803 was determined to be the true boundary line,
Mr. Justice Field had occasion to consider the extent and mean-
ing of the clause that no state shall, without the consent of
Congress, among other things, ' ' enter into any agreement or com-
pact with another state or with a foreign power." He put the
proposition in the form of a question, "Is the agreement made
without the consent of Congress between Virginia and Tennessee,
to appoint commissioners to run and mark the boundary line be-
tween them, within the prohibition of the clause ? ' ' and then pro-
ceeded:
"The terms 'agreement' or 'compact' taken by themselves are
sufficiently comprehensive to embrace all forms of stipulation,
written or verbal, and relating to all kinds of subjects; to those
to which the United States can have no possible objection or
have any interest in interfering with, as well as to those which
may tend to increase and build up the political influence of the
contracting states, so as to encroach upon or impair the supremacy
of the United States or interfere with their rightful management
of particular subjects placed under their entire control.
"There are many matters upon which different states may
agree that can in no respect concern the United States. If, for
instance, Virginia should come into possession and ownership of
a small parcel of land in New York which the latter state might
desire to acquire as a site for a public building, it would hardly
8 2 Story on Constitution, sec. M03.
39 TO WHAT COMPACTS DOES THE CONSTITUTION APPLY. [§ 42
be deemed essential for the latter state to obtain the consent of
Congress before it could make a valid agreement with Virginia
for the purchase of the land. If Massachusetts, in forwarding its
exhibits to the World's Fair at Chicago, should desire to trans-
port them a part of the distance over the Erie Canal, it would
hardly be deemed essential for that state to obtain the consent of
Congress before it could contract with New York for the trans-
portation of the exhibit through that state in that way. If the
bordering line of two states should cross some malarious and
disease producing district, there could be no possible reason, on
any conceivable public grounds, to obtain the consent of Con-
gress for the bordering states to agree to unite in draining the
district, and thus remove the cause of disease. So in case of
threatened invasion of cholera, plague, or other causes of sickness
and death, it would be the height of absurdity to hold that the
threatened states could not unite in providing means to prevent
and repel the invasion of the pestilence without obtaining the
consent of Congress, which might not be at the time in session. ' ' 4
§ 42. To what compacts does the Constitution apply. — He
then asked, if the terms "compact" or "agreement" do not apply
to every possible compact or agreement between one state and
another, for the validity of which the consent of Congress must
be obtained, to what compacts or agreements does the Constitu-
tion apply, and stated that the answer would depend upon the
object of the constitutional provision and the construction of the
terms "agreement" and "compact" with reference to it. The
prohibition is directed against any combination increasing the
political power of the states by which the supremacy of the
United States might be endangered. He then continued :
"Compacts or agreements — and we do not perceive any differ-
ence in the meaning, except that the word * compact' is generally
used with reference to more formal and serious engagements than
is usually implied in the term ' agreement' — cover all stipulations
affecting the conduct or claims of the parties. The mere selec-
tion of parties to run and designate the boundary line between
two states, or to designate what line should be run, of itself im-
ports no agreement to accept the line run by them, and such
4 State of Virginia v. State of Tennessee, 148 U. S. 518, 13 Sup. Ct. Eep.
728, 37 L. ed. 537.
§ 42] COMPACTS BETWEEN STATES. 40
action of itself does not come within the prohibition. Nor does
a legislative declaration, following such line, that it is correct,
and shall thereafter be deemed the true and established line,-
import by itself a contract or agreement with the adjoining state.
It is a legislative declaration which the state and individuals
affected by the recognized boundary line may invoke against the
state as an admission, but not as a compact or agreement. The
legislative declaration will take the form of an agreement or com-
pact when it recites some consideration for it from the other
party affected by it, for example, as made upon a similar declara-
tion of the border or contracting state. The mutual declarations
may then be reasonably treated as made upon mutual considera-
tions. The compact or agreement will then be within the pro-
hibition of the Constitution or without it, according as the estab-
lishment of the boundary line may lead or not to the increase
of the political power or influence of the states affected, and
thus encroach or n6t upon the full and free exercise of federal
authority. If the boundary established is so run as to cut off an
important and valuable portion of a state, the political power of
the state enlarged would be affected by the settlement of the
boundary ; and to an agreement for the running of such a bound-
ary or rather for its adoption afterward, the consent of Congress
may well be required. But the running of a boundary may have
no effect upon the political influence of either state ; it may
simply serve to mark and define that which actually existed
before, but was undefined and unmarked. In that case the
agreement for the running of the line, or its actual survey, would
in no respect displace the relation of either of the states to the gen-
eral government. There was, therefore, no compact or agreement
between the states in this case which required, for its validity,
the consent of Congress, within the meaning of the Constitution,
until they had passed upon the report of the commissioners, rati-
fied their action, and mutually declared the boundary established
by them to be the true and real boundary between the states.
Such ratification was mutually made by each state in considera-
tion of the ratification of the other."5
5 State of Virginia v. State of Tennessee, 148 U. S. 518, 13 Sup. Ct. Eep.
728, 37 L. ed. 537.
41 BOUNDARIES BETWEEN TWO STATES. [§ 43
§ 43. Boundaries between two states. — The supreme court of
the United States has original jurisdiction of questions of bound-
ary between two states of the Union.6 Under the Articles of Con-
federation Congress was made "the last resort on appeal in all
disputes and differences now subsisting or that hereafter may
arise between two or more states concerning boundary, jurisdic-
tion or any other cause whatever/' and it was provided, for the
exercise of such jurisdiction, that "whenever the legislative or
executive authority or lawful agent of any state in controversy
with another shall present a petition to Congress, stating the mat-
ter in question and praying for a hearing, notice thereof shall be
given by order of Congress to the legislative or executive au-
thority of the other state in controversy, and a day assigned for
the appearance of the parties by their lawful agents, who shall
then be directed to appoint, by joint consent, commissioners or
judges to constitute a court for hearing and determining the mat-
ter in question; but if they cannot agree, Congress shall name
three persons out of each of the United States, and from the list
of such persons, each party shall alternately strike out one, the
petitioners beginning, until the number shall be reduced to thir-
teen; and from that number not less than seven, nor more than
nine names, as Congress shall direct, shall in the presence of Con-
gress be drawn out, and the persons whose names shall be so
drawn, or any five of them, shall be commissioners or judges, to
hear and finally determine the controversy, so always as a major
part of the judges who shall hear the cause shall agree in the
determination; and if either party shall neglect to attend at the
day appointed, without showing reasons, which Congress shall
adjudge sufficient, or being present shall refuse to strike, the Con-
gress shall proceed to nominate three persons out of each State,
and the Secretary of Congress shall strike in behalf of such party
absent or refusing ; and the judgment and sentence of the court
to be appointed, in the manner before prescribed, shall be final
and conclusive; and if any of the parties shall refuse to submit
to the authority of such court, or to appear or defend their claim
or cause, the court shall nevertheless proceed to pronounce sen-
tence, or judgment, which shall in like manner be final and de-
cisive, the judgment or sentence and other proceedings being in
6 Virginia v. West Virginia, 11 Wall 39, 20 L. ed. 67.
§§ 44-46] COMPACTS BETWEEN STATES. 42
either case transmitted to Congress, and lodged among the acts
of Congress for the securities of the parties concerned."7
§ 44. Controversies at time of adoption of Constitution.—
When the Constitution was adopted, there were controversies be-
tween eleven states regarding boundaries, which had continued
from the first settlement of the colonies.8 "The necessity for the
creation of some tribunal for the settlement of these and like
controversies that might arise, under the new government to be
formed, must, therefore, have been perceived by the framers of
the Constitution, and, consequently, among the controversies to
which the judicial power of the United States was extended by
the Constitution, we find those between two or more states.
And that a controversy between two or more states, in respect to
boundary, is one to which, under the Constitution, such judicial
power extends, is no longer an open question in this court. ' ' 9
§ 45. Boundary between South Dakota and Nebraska. — Com-
missioners were appointed by the states of South Dakota and
Nebraska, respectively, for the purpose of settling the boundary
line between them; and the legislature of each state adopted,
subject to the approval of Congress, the boundary line so estab-
lished. The governors of these states, as authorized by the acts
of the legislature, signed in behalf of their respective states a
compact, fixing a certain line as a boundary. Congress by an
act approved July 24, 1897, enacted: "That the consent of the
Congress of the United States is hereby given to the said com-
pact, and all its declarations are hereby confirmed. ' ' 10
§ 46. Construing compacts between two states. — The jurisdic-
tion of the supreme court of the United States of questions of
7 Articles of Confederation, art. 15 L. ed. *81; Alabama v. Georgia,
IX. Provision was made that no state 64 U. S. (23 How.) 505, 16 L. ed.
should be deprived of territory for 556; Virginia v. West Virginia, 78 U.
the benefit of the United States. S. (11 Wall.) 39, 20 L. ed. 67; Mis-
8 Ehode Island v. Massachusetts, 12 souri v. Kentucky, 78 U. S. (11
Pet. 657, 9 L. ed. 1233, 1260. Wall.) 395, 20 L. ed. 116; Indiana v.
9 United States v. Texas, 143 U. Kentucky, 136 U. S. 479, 34 L. ed.
S. 640, 12 Sup. Ct. Rep. 488, 36 L. ed. 329; Nebraska v. Iowa, 143 U. S.
291 ; New Jersey v. New York, 30 U. 359, 36 L. ed. 186.
S. (5 Pet.) 284, 8 L. ed. 127; Florida 10 30 Stats, at Large, 214.
v. Georgia, 58 U. S. (17 How.) 478,
43 DISPUTED BOUNDARY BETWEEN UNITED STATES AND A STATE. [ § 47
boundary between two states is not curtailed, because the decision
of the question requires the court to examine and construe com-
pacts or agreements between those states, or because such de-
cision may affect the territorial limits of the political jurisdiction
and sovereignty of the states.11 A question arose as to the right
of West Virginia, after its separation from Virginia, to juris-
diction over three counties, and it was held that its right could
only be maintained by a valid agreement between the two states,
and that the consent of Congress was essential to the validity of
such agreement. It was agreed, however, between these states
that these counties should become a part of West Virginia, sub-
ject to the sole condition that the voters of these counties should
consent. The admission of West Virginia as a state was con-
sented to by Congress, with the contingent boundaries provided
for in its Constitution, and it was held that the action of the
governor of Virginia upon the vote of such counties to become a
part of West Virginia was, as between the two states, conclu-
§ 47. Disputed boundary between United States and a state. —
While the jurisdiction of the supreme court of the United States
to determine a disputed boundary between two states is clear,
the question arose whether that court could take cognizance of an
original suit brought by the United States against a state to de-
termine the boundary between one of the territories and such
state. It was contended that such jurisdiction did not exist, and
that the only manner in which such a dispute could be deter-
mined was by an agreement in some form between the state and
the federal government. But it was decided that the court did
have jurisdiction to hear and determine the controversy, and that
a suit in equity was the appropriate remedy.13
In an earlier case, an action had been brought by the United
States against the state of North Carolina upon certain bonds is-
sued by that state. An appearance was made in behalf of the
state, the case heard upon its merits and the state had judg-
11 Virginia v. West Virginia, 78 U. I3 United States v. Texas, 143 U.
S. (11 Wall.) 39, 20 L. ed. 67. S. 640, 12 Sup. Ct. Rep. 488, 36 L.
12 Virginia v. West Virginia, 78 U. ed. 291. ;
S. (11 Wall.) 39, 20 L. ed. 67.
§ 48] COMPACTS BETWEEN STATES. 44
ment. No point was made as to the jurisdiction of the court, and
the opinion was silent upon the subject.14 It was said, however,
in a later case, that the question of jurisdiction did not escape
the attention of the court, and that the judgment would not
have been rendered except upon the theory that jurisdiction of
a suit by the United States against a state is vested in the su-
preme court of the United States.15
§ 48. Suits by state to recover penalties. — It does not follow
that because a state is the plaintiff that the controversy is one in
which the supreme court of the United States is empowered to
grant relief against another state or its citizens, for it was not
intended to confer upon the courts of the United States jurisdic-
tion of a suit by one state of such a nature that, on the settled
principles of public and international law, it could not be enter-
tained by the judiciary of the other state. It is a well-recognized
rule that the courts of one country do not execute the penal laws
of another. This principle applies not only to prosecutions and
sentences for crimes and misdemeanors, but to all suits in favor
of a state to recover pecuniary penalties foe violations of stat-
utes, for the protection of its revenue or other municipal laws.
The nature of the cause of action is not altered by a judgment
recovered upon it, and, hence, when a judgment is presented to
a court for enforcement, it may ascertain whether the claim is one
that it is authorized to enforce. The supreme court of the United
States has no jurisdiction over an original action brought to com-
pel an insurance corporation of one state to pay to another state
the amount of a judgment recovered by such state for a penalty
imposed by its own statute upon such corporation for doing busi-
ness within the state, without having first given to the proper
officer of the state a statement of its property and business which
the statute required.16
14 United States v. North Carolina, L. ed. 242. Said Mr. Justice Gray,
136 U. S. 211, 10 Sup. Ct. Eep. 920, in delivering the opinion of the court:
34 L. ed. 336. ' ' The statute of Wisconsin, under
15 United States v. Texas, 143 U. which the state recovered in one of
S. 640, 12 Sup. Ct. Eep. 488, 36 L. her own courts, the judgment now
ed. 291. and here sued on, was in the strictest
16 Wisconsin v. Pelican Ins. Co., 127 sense a penal statute, imposing a pen-
U. S. 288, 8 Sup. Ct. Kep. 1373, 32 alty upon any insurance company of
45
APPROVAL OF CONGRESS IMPLIED FROM LEGISLATION. [§ 49
§ 49. Approval of Congress implied from subsequent legisla-
tion.— While there may be no direct legislation on the subject, a
compact entered into between two states as to the boundary line
between them may be fairly implied from subsequent legislation
and proceedings. Even if a boundary line between two states
varies in some particulars from the courses given in the original
grant, still if it has been run out, located and marked upon the
earth, and the states have for a long course of years recognized
and acquiesced in the line, it becomes conclusive.17 Mr. Justice
Field, delivering the opinion of the court, said: "The Constitu-
tion does not state when the consent shall be given, whether it
shall precede or may follow the compact made, or whether it
shall be express or may be implied. In many cases the consent
another state, doing business in the
state of Wisconsin without having de-
posited with the proper officer of the
state a full statement of its property
and business during the previous year.
Wis. Kev. Stats., sec. 1920. The cause
of action was not any private injury,
but solely the offense committed
against the state by violating her law.
The prosecution was in the name of
the state, and the whole penalty when
recovered would accrue to the state,
and be paid, one-half into her treas-
ury, and the other half to her insur-
ance commissioner, who pays all ex-
penses of prosecuting for and collect-
ing such forfeitures. Wis. Stats.
1S85, c. 395. The real nature of
the case is not affected by the forms
provided by the law of the state for
the punishment of the offense. It
is immaterial whether by the law of
Wisconsin, the prosecution must be
by indictment or by action; or
whether under that law, a judgment
there obtained for the penalty might
be enforced by execution, by scire
facias or by a new suit. In whatever
form the state pursues her right to
punish the offense against her sover-
eignty, every step of the proceeding
tends to one end, the compelling
the offender to pay a pecuniary fine
by way of punishment for the offense.
This court, therefore, cannot entertain
an original action to compel the de-
fendant to pay to the state of Wash-
ington a sum of money in satisfaction
of the judgment for that fine. The
original jurisdiction of this court is
conferred by the Constitution, with-
out limit of the amount in controversy,
and Congress has never imposed (if
indeed it could impose) any such
limit. If this court has original jur-
isdiction of the present case, it must
follow that any action upon a judg-
ment obtained by a state in her own
courts against a citizen of another
state for the recovery of any sum of
money, however small, by way of a
fine for any offense, however petty,
against her laws, could be brought in
the first instance in the Supreme Court
of the United States. That cannot
have been the intention of the Conven-
tion in framing, or of the people in
adopting the Federal Constitution. ' '
17 State of Virginia v. State of Ten-
nessee, 148 U. S. 518, 13 Sup. Ct. Rep.
728, 37 L. ed. 537.
§ 50] COMPACTS BETWEEN STATES. 46
will usually precede the compact or agreement, as where it is
to lay a duty of tonnage, to keep troops or ships of war in time
of peace, or to engage in war. But where the agreement relates
to a matter which could not well be considered until its nature
is fully developed, it is not perceived why the consent may not
be subsequently given. Story says that the consent may be im-
plied, and is always to be implied, when Congress adopts the par-
ticular act by sanctioning its objects and aiding in enforcing
them; and observes that where a state is admitted into the
Union, notoriously upon a compact made between it and the state
of which it previously composed a part, there the act of Con-
gress, admitting such state into the Union is an implied consent
to the terms of the compact. Knowledge by Congress of the
boundaries of a state, and of its political subdivisions, may rea-
sonably be presumed, as much of its legislation is affected by
them, such as relate to the territorial jurisdiction of the courts
of the United States, the extent of their collection districts, and
of districts in which process, civil and criminal, of their courts
may be served and enforced."18
§ 50. Creation of mutual estoppel. — Where a boundary line
has been recognized by two states for a long term of years, it be-
comes the established line between them on the principle of
mutual estoppel. But if a boundary line has been actually run
and established, it cannot be changed by the action of the state
authorities in recognition of another line, unless both states have
continuously recognized such line for such a length of time as
to create a mutual estoppel and to operate as an adoption of such
line as the true and established boundary.19
If two states have by acts of their legislatures confirmed the
boundary line between them as run and marked by a joint com-
mission, such line must, in a suit between private persons, be ac-
cepted by the courts as the true and ancient boundary, although
18 State of Virginia v. State of Ten- Tennessee. The court adjudged that
nessee, 148 U. S. 518, 13 Sup. Ct. the boundary line as established in
Kep. 728, 37 L. ed. 537. That was 1803 by compact was the true bound-
an original suit in the supreme court ary line.
of the United States, to establish by " Belding v. Hebard, 103 Fed. 542,
judicial decree the true boundary line 43 C. C. A. 296.
between the states of Virginia and
47 CONTRACT OF STATE TO EXEMPT PROPERTY FROM TAXATION. [§ 51
a different line between two points may more accurately con-
form to a general call.20
§ 51. Contract of state to exempt property from taxation. —
The provisions of the Constitution prohibiting a state, without
the consent of Congress, entering into any agreement or compact
with another state came before the supreme court for considera-
tion in a case where the validity of a contract between a state
and a railroad company exempting the latter from taxes in con-
sideration of a percentage of its gross earnings was involved.
The Constitution of the state of Minnesota contains clauses pro-
viding that all taxes to be raised in the state shall be as nearly
equal as may be, and that all property on which taxes are to be
levied shall have a cash valuation, and shall be uniform through-
out the state; and also declaring that laws shall be passed tax-
ing all real and personal property according to its true value in
money.21 Congress granted certain lands to the state to aid in
building a railroad, and provided "that the said lands hereby
granted, when patented to said state, shall be subject to the dis-
posal of said state for the purposes aforesaid and no other; and
the said railroad shall be and remain a public highway for the
use of the government of the United States free from all toll or
other charge, for the transportation of any property or troops of
the United States."22 The legislature of that state passed an
act accepting the grant and transferring the lands to a railroad
company to aid it in the construction of the railroad, and pro-
viding that, in consideration of this grant, the company should,
after the completion of its railroad, pay into the treasury three
pe* cent of its gross earnings, "which sum shall be in lieu and
in full of all taxation and assessments upon the said railroad,
and its appurtenances and appendages, and all other property of
said company, real, personal and mixed, including the lands
hereby and heretofore granted to said company, or so intended
to be granted. ' ' But the lands were to be taxed when they were
sold and conveyed to purchasers. An amendatory act was passed,
making some alterations, and providing that when its provisions
should be accepted, "the same shall become obligatory upon the
20 Stevenson v. Fain, 116 Fed. 147, 22 13 Stats, at Large, 64; 14 Stats.
53 C. C. A. 467. at Large, 93.
21 Minn. Const., art. 9, sees. 1, 3.
§ 52] COMPACTS BETWEEN STATES. 48
state and upon said company. ' ' The railroad company continued
for many years to pay taxes in accordance with this contract,
and no attempt was made by the state to levy taxes upon its lands.
§ 52. Subsequent statutes directing taxation of such property.
An amendment, years after the making of this contract, was
adopted to the Constitution of the state, declaring that any law
providing for the repeal or amendment of any law similar to
that in question should, before it became effective, be submitted
to a vote of the people and ratified by them. Finally, a law was
passed by the legislature and adopted by the people, by the
terms of which all lands granted to any railroad company were
to be assessed and taxed as other lands in the state, but the pro-
vision requiring the payment of a percentage of its gross earn-
ings into the treasury was retained.
Under the provisions of this act the state proceeded to levy
taxes upon the lands of a railroad company with which such
contract was made, and the validity of such taxation was the
question involved. The decision of the supreme court of
Minnesota was adverse to the railroad company.23 The supreme
court of the United States held that the power reserved in the
constitutional amendment to alter, amend or repeal the statute
exempting the railroad company from all other taxes in payment
of the percentage of its earnings could not be exercised so as
to continue in full the obligation as to the payment of the per-
centage, and to deny at the same time to the company the ex-
emption given by the contract.24 This contract, it was said by
Mr. Justice Brewer, was not in violation of the provisions of the
Constitution of Minnesota, because it was made by the state as a
trustee of the public lands granted to it in aid of railroads, and
as the state had accepted the property as a trustee, it was not
forced to diminish the full performance of the trust by subject-
ing the lands to taxation if in its opinion as trustee the trans-
fer of the land subject to a limited taxation would more ef-
fectually accomplish the trust.25
23 State v. Stearns, 72 Minn. 200, 25 Stearns v. Minnesota, 179 U. S.
75 N. W. 210. 223, 21 Sup. Ct. Kep. 73, 45 L. ed.
24 Stearns v. Minnesota, 179 U. S. 162. The supreme court of the
223, 21 Sup. Ct. Kep. 73, 45 L. ed. 162. United States possesses paramount au-
49 COMPACTS RELATING TO PROPERTY. [§ 53
§ 53. Compacts relating to property.— Mr. Justice Brewer,
after referring to the enabling act and the Constitution of the
state, said that it was evident that they, in form at least, made a
compact between the United States and the state. "In an in-
quiry as to the validity of such a compact," said he, "this dis-
tinction must at the outset be noticed. There may be agree-
ments or compacts attempted to be entered into between two
states, or between a state and the nation, in reference to political
rights and obligations, and there may be those solely in reference
to property belonging to one or the other. That different con-
siderations may underlie the question as to the validity of these
two kinds of compacts or agreements is obvious. It has often
been said that a state admitted into the Union enters therein in
full equality with all the others, and such equality may forbid
any agreement or compact limiting or qualifying political rights
and obligations; whereas, on the other hand, a mere agreement
in reference to property involves no question of equality of
status, but only if the power of a state to deal with the nation
or with any other state in reference to such property. The case
before us is one involving simply an agreement as to property
between a state and the nation. That a state and the nation are
competent to enter into an agreement of such a nature with one
another has been affirmed in past decisions of this court, and
that they have been frequently made in the admission of new
states is a matter of history. ' ' He said that if the right of agree-
ment between one another belongs to the several states except as
thority when reviewing the final judg- Sup. Ct. Rep. 265, 29 L. ed. 510;
ment of a state court which upholds a Vicksburg S. & P. R. Co. v. Dennis,
state statute alleged to violate the con- 116 U. S. 665, 6 Sup. Ct. Rep. 625, 20
tract clause of the Constitution, to de- L. ed. 770; New Orleans Water Works
termine the existence or nonexistence Co. v. Louisiana Sugar Ref. Co., 125
of the contract set up, and whether U. S. 18, 8 Sup. Ct. Rep. 741, 31 L. ed.
the obligation has been impaired by 607; Bryan v. Kentucky Conference
the statute. Douglas v. Kentucky, M. E. Church etc., 151 U. S. 639, 14
168 U. S. 488, 8 Sup. Ct. Rep. 199, Sup. Ct. Rep. 465, 38 L. ed. 297;
42 L. ed. 553; Ohio Life Ins. & T. Mobile & O. R. Co. v. Tennessee, 153
Co. v. Debolt, 16 How. 416, 14 L. ed. U. S. 486, 14 Sup. Ct. Rep. 968, 38 L.
997; Wright v. Nagle, 101 U. S. 791, ed. 793; Bacon v. Texas, 163 U. S.
25 L. ed. 923; Louisville Gas Co. v. 207, 16 Sup. Ct. Rep. 1023, 41 L. ed.
Citizens' Gas Co., 115 U. S. 683, 6 132.
Treaties — 4
§ 53] COMPACTS BETWEEN STATES.
limited by the constitutional provisions requiring the consent
Congress, "equally true is it that a state may make a compact
with all the states, constituting as one body the nation, pos-
sessed of general right of sovereignty and represented by Con-
gress."26
28 Stearns v. Minnesota, 179 U. S. 223, 21 Sup. Ct. Eep. 73, 45 L. ed. 162.
51 POWER TO MAKE TREATIES. [§ 54
CHAPTER IV.
MAKING OF TEEATIES.
§ 54. Power to make treaties.
§ 55. Difference of opinion as to where power should be vested.
§ 56. Vehement attack on treaty clauses.
§ 57. Objections to lodging power with President.
§ 58. Differences between treaty-making power in England and in United
States.
§ 59. Other objections.
§ 60. Prerogative of the Executive.
§ 61. Treaty inchoate until ratified.
§ 62. Eatification of treaties by Senate.
§ 63. Eejection of treaties by Senate.
§ 64. Views of Mr. Clay.
§ 65. Adding declaration.
§ 66. Proviso adopted by Senate.
§ 67. Amendment by declaration of interpretation.
§ 68. Views of Department of State.
§ 69. Senate resolution controlling meaning of treaty.
§ 70. Executive agreements.
§ 71. Protocols within Executive authority.
§ 72. Instances.
§ 73. Suspension of tariff act by President.
§ 7^4. No discretion in President.
§ 75. Nonintercourse act.
§ 76. Suspension and operation of acts dependent upon President.
§ 77. Suspension of act prohibiting imports.
§ 78. Same subject — Continued.
§ 79. Importation of neat cattle.
§ 80. Products of Cuba and Porto Eico.
§ 81. Appropriation of money.
§ 82. Moral obligation.
§ 83. Alaska purchase.
§ 84. Porto Eico as foreign territory.
§ 85. Treaty dependent upon legislative action.
§ 54. Power to make treaties. — The Constitution places the
power to make treaties in the hands of the President, by and with
the advice and consent of the Senate, if two-thirds of the sena-
tors present concur.1 The clause on this subject found its origin in
the Committee on Detail, who in their first report placed the treaty-
1 Const., art. II, sec. 2, cl. 2.
§§ 55, 56] MAKING OF TREATIES. 52
making power in the Senate by a clause reading: "The Senate of
the United States shall have power to make treaties, and appoint
embassadors, and judges of the Supreme Court." When the
convention took up this clause for consideration, an amendment
was moved by Gouverneur Morris that "no treaty shall be bind-
ing on the United States which is not ratified by law," but after
some debate the entire clause was reported back to the Commit-
tee on Detail. As this committee did not return a further re-
port, the matter went to the Committee on Unfinished Portions,
who, when they reported, vested the power in the President by
and with the advice and consent of the Senate.
§ 55. Difference of opinion as to where power should be
vested. — The language of the report of the Committee on Un-
finished Portions was: "The President, by and with the advice
and consent of the Senate, shall have power to make treaties.
.... But no treaty shall be made without the consent of two-
thirds of the members present." An amendment was offered in
the convention to add the words "and House of Representatives"
after "Senate," but it failed to carry. Much difference of opin-
ion was manifested on the provision that required two-thirds of
the senators present to ratify a treaty, some of the members ad-
vocating an amendment whereby treaties of peace could be rati-
fied by a majority and others wishing to eliminate completely
the requirement of a two-thirds vote. It was also urged that
"no treaty should be made without the consent of two-thirds of
all the members of the Senate," and also that "no treaty shall
be made without a majority of the whole number of the Senate";
and still again, that previous notice to members and with a rea-
sonable time to attend, should be given. All these propositions
were defeated, and the Committee on Style finally reported it
in the form in which it now appears in the Constitution.2
§ 56. Vehement attack on treaty clauses. — Judge Story said
that the plan of the Constitution was happily adapted to se-
cure all just objects in relation to foreign negotiations, while
admitting that few parts of the Constitution were assailed with
2 5 Elliot, 524-527; The Federalist No. 75; Journal of Convention, 225,
326, 342.
53
VEHEMENT ATTACK ON TREATY CLAUSES.
[§ 56
more vehemence. * ' In the formation of treaties, ' ' he said, ' ' secrecy
and immediate dispatch are generally requisite, and sometimes
absolutely indispensable. Intelligence may often be obtained,
and measures matured in secrecy which never could be done un-
less in the faith and confidence of profound secrecy. No man at
all acquainted with diplomacy, but must have felt that the sue-
cess of negotiations as often depends upon their being unknown
by the public as upon their justice or their policy. Men will
assume responsibility in private, and communicate information,
and express opinions, which they would feel the greatest re-
pugnance publicly to avow; and measures may be defeated by
the intrigues and management of foreign powers, if they suspect
them to be in progress, and understand their precise nature and
extent. In this view the executive department is a far better
depositary of the power than Congress would be. The delays
incident to a large assembly ; the differences of opinion ; the time
consumed in debate; and the utter impossibility of secrecy, all
combine to render them unfitted for the purposes of diplo-
macy."3
3 2 Story on Constitution, sec. 1510.
{ i The same difficulties would occur
from confiding it exclusively to either
branch of Congress. Each is too
numerous for prompt and immediate
action, and secrecy. The matters in
negotiations, which usually require
these qualities in the highest degree,
are the preparatory and auxiliary
measures; and which are to be seized
upon, as it were, in an instant. The
president could easily arrange them.
But the House, or the Senate, if in
session, could not act, until after
great delays; and in the recess could
not act at all. To have intrusted the
power to either would have been to
relinquish the benefits of the consti-
tutional agency of the president in
the conduct of foreign negotiations.
It is true that the branch so intrusted
might have the option to employ the
president in that capacity; but they
would also have the option of re-
fraining from it; and it cannot be
disguised, that pique, or cabal, or per-
sonal or political hostility, might in-
duce them to keep their pursuits at a
distance from his inspection and par-
ticipation. Nor could it be expected,
that the president, as a mere minis-
terial agent of such branch, would
enjoy the confidence and respect of
foreign powers to the same extent as
he would, as the constitutional repre-
sentative of the nation itself; and
his interposition would of course have
less efficacy and weight.
1 ' On the other hand, considering the
delicacy and extent of the power, it
is too much to expect that a free
people would confide to a single mag-
istrate, however respectable, the sole
authority to act conclusively, as well
as exclusively, upon the subject of
treaties. In England, the power to
make treaties is exclusively vested
in the crown. But however proper it
§§ 57, 58] MAKING OF TREATIES. 54
§ 57. Objections to lodging power with President. — It was
seriously objected that the vesting of the treaty-making power
in the President with the concurrence of two-thirds of the sena-
tors present was destructive to public liberty and dangerous to
the state.4
Speaking of the treaty-making power, the Federalist said:
"The essence of the legislative authority is to enact laws, or in
other words to prescribe rules for the regulation of society;
while the execution of the laws, and the employment of the com-
mon strength, either for this purpose or for the common defense,
seems to comprise all the functions of the executive magistrate.
The power of making treaty is plainly neither the one nor the
other. It relates neither to the execution of the subsisting laws,
nor to the enaction of new ones ; and still less to an exertion of
the common strength. Its objects are contracts with foreign na-
tions which have the force of law, but derive it from the obli-
gations of good faith. They are not rules prescribed by the
sovereign to the subject, but agreements between sovereign and
sovereign."5
§ 58. Differences between treaty-making power in England
and United States. — Again, the Federalist points out the differ-
ences that exist between the treaty-making power in England and
that in the United States, asserting that the King of Great Britain
is in all foreign transactions the sole and absolute representative
of the nation, and intimating that in case of the dissolution of
the confederacy, the executives of the several states might be
invested with the prerogative of making treaties. It asserted
that the King of Great Britain could of his own accord make
treaties of peace, commerce, alliance, and of every other descrip-
tion. "It has been insinuated that his authority, in this respect,
is not conclusive; and that his conventions with foreign powers
are subject to the revision, and stand in need of the ratification
may be in a monarchy, there is no of all depositaries of power; and
American statesman but must feel which, experience teaches us, is the
that such a prerogative in an Ameri- best security against the abuse of it. ' '
can president would be inexpedient 2 Story on Constitution, 1511, 1512.
and dangerous. It would be incon- 4 2 Elliot's Debates, 367-379.
sistent with that wholesome jeal- B The Federalist, 75.
ousy which republics ought to cherish
55 OTHER OBJECTIONS. [§ 59
of parliament. But I believe this doctrine was never heard of
till it was broached upon the present occasion. Every jurist of
that kingdom, and every other man acquainted with its con-
stitution, knows, as an established fact, that the prerogative of
making treaties exists in the crown, in its utmost plenitude;
and that the compacts entered into by the royal authority have
the most complete validity and perfection, independent of any
other sanction. The parliament, it is true, is sometimes seen
employing itself in altering the existing laws, to conform them
to the stipulations in a new treaty; and this may possibly have
given birth to the imagination, that its co-operation was neces-
sary to the obligatory efficacy of the treaty. But this parlia-
mentary interposition proceeds from a different cause; from the
necessity of adjusting a most artificial and intricate system of
revenue and commercial laws to the changes made in them by the
operation of the treaty ; and of adopting new provisions and pre-
cautions to the new state of things, to keep the machine from
running into disorder. In this respect, therefore, there is no
comparison between the intended power of the President and
the actual power of the British sovereign. The one can per-
form alone what the other can only do with the concurrence of a
branch of the legislature. It must be admitted that, in this in-
stance, the power of the federal executive would exceed that of
any state executive. But this arises naturally, from the exclu-
sive possession, by the Union, of that part of the sovereign power
which relates to treaties. If the confederacy were to be dis-
solved, it would become a question whether the executives of
the several states were not solely invested with that delicate and
important prerogative."6
§ 59. Other objections. — Judge Story stated that one ground
of objection was the intermixture of executive and legislative
powers, it being contended that the President ought alone to
possess the prerogative of concluding treaties. Another objec-
tion urged was the small number of the persons to whom the
power to make treaties was intrusted, and the opinion was ex-
pressed that the House of Representatives should have a voice,
as was also the opinion that a treaty should be ratified by two-
8 The Federalist, 69.
§ 59] MAKING OF TREATIES. 56
thirds of all the members of the Senate, and not alone by two-
thirds of those present. In answer to the objection that the
power ought to have been confined exclusively to the President,
he said that it might be suggested, "that, however safe it may
be in governments, where the executive magistrate is an hered-
itary monarch, to commit to him the entire power of making
treaties, it would be utterly unsafe and improper to intrust that
power to an executive magistrate chosen for four years. It has
been remarked, and is unquestionably true, that an hereditary
monarch, though often the oppressor of his people, has personally
too much at stake in the government to be in any material dan-
ger of corruption by foreign powers, so as to surrender any im-
portant rights or interests. But a man, raised from a private
station to the rank of chief magistrate for a short period, hav-
ing but a slender or moderate fortune, and no very deep stake
in the society, might sometimes be under temptations to sacrifice
duty to interests, which it would require great virtue to with-
stand. If ambitious, he might be tempted to seek his own ag-
grandizement by the aid of a foreign power, and use the field of
negotiations for this purpose. If avaricious, he might make his
treachery to his constituents a vendible article at an enormous
price."7
7 2 Story on Constitution, sec. 1515. the senate, chosen by the states
He also said: "The impropriety through the voice of the state legis-
of delegating the power exclusively latures. In the next place, the
to the senate has been already suffi- house of representatives are chosen
ciently considered. And, in addition for two 7ears Onl7; and the internal
to what has been already urged composition of the body is constantly
against the participation of the house changing, so as to admit of less cer*
of representatives in it, it may be tainty in their opinions and their
remarked that the house of repre- measures, than would naturally belong
sentatives is for other reasons far to a body of longer duration. In the
less fit than the senate to be the *ext place, the house of representa-
exclusive depositary of the power, tives is far more numerous than the
or to hold it in conjunction with the senate, and will be constantly in-
executive. In the first place, it is creasing in numbers, so that it wiU
a popular assembly, chosen immedi- be more slow in its movements, and
ately from the people, and represent- more fluctuating in its councils. In
ing in a good measure, their feelings the next place, the senate will natur-
and local interests; and it will on this ally be composed of persons of more
account be more likely to be swayed experience, weight of character, and
by such feelings and interests than talents than the members of the
57
PREROGATIVE OF THE EXECUTIVE.
[§ 60
§ 60. Prerogative of the Executive.— The courts have no power
to interfere with the negotiation and modification of treaties, as
such is the prerogative of the Executive.8 President Washing-
ton, in a special message, said: "It is said to be the general un-
derstanding and practice of nations, as a check on the mistakes
and indiscretions of ministers or commissioners, not to consider
any treaty, negotiated and signed by such officers as final and
conclusive, until ratified by the sovereign or government from
whom they derive their powers. This practice has been adopted
by the United States respecting their treaties with European na-
tions, and I am inclined to think that it would be advisable to
observe it in the conduct of our treaties with the Indians; for,
though such treaties, being on their part, made by their chiefs or
rulers, need not be ratified by them, yet, being formed on our
part by the agency of subordinate officers, it seems to be both
prudent and reasonable that their acts should not be binding on
the nation, until approved and ratified by the government. It
house. Accurate knowledge of for-
eign politics, a steady and systematic
adherence to the same views, nice
and uniform sensibility to national
character as well as secrecy, decision,
and dispatch, are required for a due
execution of the power to make
treaties
"Besides, the very habits of busi-
ness and the uniformity and regu-
larity of system, acquired by a long
possession of office, are of great
concern in all cases of this sort. The
senators, from the longer duration of
their office, will have great opportuni-
ties of extending their political in-
formation, and of rendering their ex-
perience more and more beneficial to
their country. The members are
slowly changed; so that the body will
at all times, from its very organiza-
tion, comprehend a large majority of
persons who have been engaged for a
considerable time in public duties and
foreign affairs. If, in addition to
all these reasons, it is considered that
in the senate all the states are equally
represented, and in the house very
unequally, there can be no reasonable
doubt, that the senate is in all respects
a more competent and more suitable
depositary of the power than the
house, either with or without the co-
operation of the executive. And most
of the reasoning applies with equal
force to any participation by the
house in the treaty-making functions.
It would add an unwieldy machinery
to all foreign operations, and retard
if not wholly prevent, the beneficial
purposes of the power": 2 Story on
Constitution, 1516, 1517.
8 Frelingheysen v. Key, 110 U. S.
64, 3 Sup. Ct. Eep. 462, 28 L. ed. 71;
Great West Ins. Co. v. United States,
19 Ct. of Cl. 206; Angarica de la
Kua v. Bayard, 4 Mackey, 310.
§§ 61, 62] MAKING OF TREATIES. 58
strikes me that this point should be well considered and settled,
so that our national proceedings in this respect may become uni-
form, and be directed by fixed and stable principles."9
§ 61. Treaty inchoate until ratified. — Every treaty negotiated
by the United States is an inchoate compact until it is ratified,
and as every nation has knowledge of the limitations upon the
power of its officers to conclude treaties, it is entirely free to
withhold its own ratification until it has knowledge of ratifica-
tion on the part of the United States. "In the full powers of
European governments to their ministers, the sovereign usually
promises to ratify that which his minister shall conclude in his
name ; and yet if the minister transcends his instructions, though
not known to the other party, the sovereign is not held bound to
ratify his engagements. Of this principle Great Britain has
once availed herself in her negotiations with the United States.
But the full powers of our ministers abroad are necessarily modi-
fied by the provisions of our Constitution, and promise the rati-
fication of treaties signed by them, only in the event of their re-
ceiving the constitutional sanction of our government."10 A
payment of preliminary installment of money under a treaty
providing for a lease of foreign property does not obligate the
government to future payments.11 A treaty, when ratified, re-
lates back to the time of its signature, as a ratification is noth-
ing more than evidence of the authority under which the minis-
ter proceeded.12
§ 62. Ratification of treaties by Senate. — As a treaty, until
sanctioned by the constitutional majority of the Senate, is a
mere inchoate and not a consummated compact, the other power
9 1 Kichardson's Messages (Sept. ing opinion in this case Mr. Justice
17, 1789), 61. Thompson said: "A government is
10 Mr. Adams, Secretary of State, bound to perform and observe a
to Mr. Bush, November 12, 1824, MS. treaty made by its minister, unless
Inst. U. S. Ministers, X, 215. it can be made to appear that he has
11 Mr. Evarts, Secretary of State, exceeded his authority. But a ratifi-
to Mr. Delmonte, February 19, 1880, cation is an acknowledgment that he
MS. Notes to Dominican Kepublic, was authorized to make the treaty;
1, 41. and if so, the nation is bound from
12 United States v. Arredondo, 6 the time the treaty is made and
Pet. 758, 8 L. ed. 547. In a dissent- signed. ' '
59 RATIFICATION OF TREATIES BY SENATE. [§ 62
to the treaty is free to withhold its own ratification until it shall
have knowledge of the ratification of the treaty on the part of
the United States.13 Owing to the fact that before a treaty can
be ratified, the action of the Senate must be had, it is preferred
that the exchange of ratifications shall be effected "as soon as
possible," rather than within a time specified.14
At first the President met the Senate personally, but the
practice became unsatisfactory and was abandoned. Mr. Grand-
all, speaking of the practice, says: "In reply to the committee,
appointed by the Senate August 6, 1789, to confer with the
President on the method of communication between the Execu-
tive and the Senate respecting treaties and nominations, Presi-
dent Washington suggested that 'In all matters respecting
treaties, oral communications seem indispensably necessary, be-
cause in these a variety of matters are contained, all of which
not only require consideration, but some may undergo much dis-
cussion to do which by written communications would be tedious
without being satisfactory.' The report of the committee, based
upon this suggestion, resulted in the adoption by the Senate, Au-
gust 21st, of a rule regulating the manner in which the President
should meet the Senate, either in the Senate chamber or in such
other place as it might be convened by him. The rule had just
been adopted when a message was received announcing the Presi-
dent's intention to meet the Senate the next day 'to advise with
them on the terms of the treaty to be negotiated with the south-
ern Indians.' Following also the practice under the Articles of
Confederation of securing prior to the negotiation of Indian
treaties an appropriation to defray the necessary expense, Presi-
dent Washington had, on August 7th, suggested by special mes-
sage to both houses the necessity of negotiating with the Indians
in the southern district, and the expediency of appointing com-
missioners for that purpose. The House bill making the appro-
priation was approved August 20th. According to the notification,
the President, accompanied by General Knox, who, although not
a Cabinet officer at the time, was acquainted with Indian af-
fairs and prepared to answer questions, appeared in the Senate
chamber. After listening to a short paper containing a few ex-
13 Mr. Adams, Secretary of State, 14 Instructions to Diplomatic Offi-
to Mr. Bush, November 12, 1884, MS. cers of the United States (1897), sec.
Inst. U. S. Ministers, X, 215. 246, p. 101.
§ 63] MAKING OF TREATIES. 60
planations, the Senate was called upon to give its advice by an-
swering yes or no to seven questions. This it seemed unwilling
to do without having first examined the articles. To a motion
made by Robert Morris, to refer the papers to a special commit-
tee, a Senator well objected that 'No council ever committed any-
thing.' The President added that, while he had not objection to
a postponement, he did not understand 'the matter of commit-
ment,' that it would defeat every purpose of his meeting the
Senate. The questions were accordingly postponed until Mon-
day, at which time they were settled by the Executive and the
Senate. The latter maintained its co-ordinate authority by a
partial consent to the propositions.
"Although the President did not again meet the Senate in per-
son to ask its advice, he continued to consult it by message prior
to the opening of negotiations. ' ' 15
§ 63. Rejection of treaties by Senate. — The rejection of a
treaty by the Senate indicates no discourtesy to the government
negotiating the treaty. "The United States can enter into no
treaty without the advice and consent of the Senate, and that
advice and consent to be intelligent must be discriminating, and
their refusal can be no subject of complaint, and give no occasion
for dissatisfaction or criticism."16
15 Crandall's Treaties, Their Mak- 1824, with Colombia for the suppres-
ing and Enforcement, 54, 56. sion of the African slave trade; March
16 Mr. Fish, Secretary of State, to 6, 1835, with the Swiss Confedera-
M¥. Motley, Minister to England, tion; April 12, 1844, for the annexa-
May 15, 1869, Sen. Ex. Doc. 11, 41 tion of Texas; December 14, 1859,
Cong. 3 Sess. 2-5. with Mexico relative to transits and
Says Mr. Crandall: "Of treaties commerce; March 5, 1860, with Spain
rejected by the Senate through a for the settlement of claims; May 21,
failure to act on them, or outright, 1867, with Hawaii for commercial
may be mentioned, besides the vari- reciprocity; and the following with
ous recent treaties for commercial Great Britain; January 14, 1869, for
reciprocity, the important treaties the adjustment of outstanding claims;
signed March 25, 1844, with the Ger- June 25, 1886, for the extradition of
man Zollverein; July 20, 1855, with criminals; February 15, 1888, for the
Hawaii; October 24, 1867, with Den- regulation of the fisheries; and Jan-
mark for the cession of the islands of uary 11, 1897, for the settlement of
St. Thomas and St. John; November disputes by arbitration." Crandall's
29, 1869, for the annexation of the Treaties, Their Making and Enforce-
Dominican Republic; December 10, ment (1904), 71, 72.
61
EEJECTION OF TREATIES BY SENATE.
[§ 63
Frequently the Senate makes amendments, and if these are not
adopted by the other party to the treaty, it, of course, does not
become operative. For instance, a treaty was signed in Lon-
don in 1803 for settling the northern boundaries of the United
States, and the Senate approved it on condition that a clause
should be stricken out, but as the amendment was not accepted
by the British government, ratifications were not exchanged.17
In another instance a convention for suppressing the African
slave trade was signed at London and submitted to the Senate in
1824. The Senate approved the conventions but with conditions
which Great Britain did not accept.18
" Mr. Fish, Secretary of State, to
Mr. Motley, Minister to England, May
15, 1869, Sen. Ex. Doc. 11, 41 Cong.
3 Sess. 4, 5; 1 Moore's Int. Arbitra-
tions, 514; 5 Moore's Int. L. Deg. 199.
18 Mr. Fish, Secretary of State, to
Mr. Motley, Minister to England, May
15, 1869, Sen. Ex. Doc. 11, 41 Cong.,
3 Sess. 4, 5; 5 Moore's Int. L. D. 199,
200. Mr. Clay, Secretary of State, re-
ferring to the Senate's amendment
said : l ' The government of His Brit-
annic Majesty is well acquainted with
the provision of the Constitution of
the United States, by which the Sen-
ate is a component part of the treaty-
making power; and that the consent
and advice of that branch of Con-
gress are indispensable in the forma-
tion of all treaties. According to the
practice of this government, the Sen-
ate is not ordinarily consulted in the
initiatory state of a negotiation, but
its consent and advice are only in-
voked, after a treaty is concluded, un-
der the direction of the President,
and submitted to its consideration.
Each of the two branches of the
treaty-making authority is independ-
ent of the other, whilst both are re-
sponsible to the States and to the
people, the common sources of their
respective powers. It results, from
this organization, that, in the progress
of the government, instances may
sometimes occur of a difference of
opinion between the Senate and the
Executive as to the expediency of a
projected treaty, of which the rejec-
tion of the Colombian convention af-
fords an example. The people of the
United States have justly considered
that, if there be any inconveniences in
this arrangement of their executive
powers, those inconveniences are more
than counterbalanced by the greater
security of their interests, which is
effected by the mutual checks which
are thus interposed. But it is not
believed that there are any incon-
veniences to foreign powers of which
they can with propriety complain.
To give validity to any treaty, the
consent of the contracting parties is
necessary. As to the mode by which
that consent shall be expressed, it
must necessarily depend with each
upon its own peculiar constitutional
arrangement. All that can rightly
be demanded in treating is to know
the contingencies on the happening
of which that consent is to be re-
garded as sufficiently testified. This
information the government of the
United States has always communi-
cated to the foreign powers with which
it treats, and to none more fully
than to the United Kingdom of Great
§ 64] MAKING OF TREATIES. 62
"Not usually consulted as to the conduct of negotiations, the
Senate has freely exercised its co-ordinate authority in treaty-
making by means of amendments. Where the treaty as ne-
gotiated is not entirely acceptable to the Senate, it is the prac-
tice of that body, if it gives its advice and consent to the ratifica-
tion, to do so with specific amendments, which renders unneces-
sary the resubmission of the instrument after the consent of the
other party to the designated changes has been obtained. (.But
the approval, whether qualified or unqualified, of the treaty by
the Senate is not to be confused with the act of ratification. The
latter is performed by the President, and is unconditional even
where it relates to a treaty which, because_of amendments by the
Senate, differs from the one first signed.j While the Senate's
practice of amending treaties continues to meet with criticism
by foreign writers, it would not be contended for a moment that
the Senate might not reject in toto, or withhold action altogether
until the changes which it might indicate by resolution or other-
wise had been negotiated. So far as it affects the other con-
tracting party, it is difficult to distinguish the latter mode from
that followed by the United States. The objection usually urged
is, that the amendments are made by persons unfamiliar with the
negotiations, and that they are in the nature of an ultimatum.
The proposed treaty is not infrequently so amended as to be un-
acceptable to the other power, and no treaty results."19
§ 64. Views of Mr. Clay.— The Senate in 1824 approved a
convention for the suppression of the African slave trade, but
added conditions which Great Britain did not accept, and speak-
ing of the amendments made by the Senate, Mr. Clay said:
"The government of His Britannic Majesty is well acquainted
Britain and Ireland. Nor can it be precede the other in the act of ratifi-
admitted that any just cause of com- cation; and if, after a treaty be rati-
plaint can arise out of the rejection fied by one party, a ratification of it
by one party of a treaty which the be withheld by the other, it merely
other has previously ratified. When shows that one is, and the other is
such a case occurs, it only proves that not, willing to come under the obliga-
the consent of both, according to tions of the proposed treaty. ' ' Mr.
the constitutional precautions which Clay to Mr. Addington, April 6, 1825,
have been provided for manifesting Am. State Papers For. Rel., V, 783.
that consent, is wanting to make the 19 CrandalPs Treaties, Their Mak-
treaty valid. One must necessarily ing and Enforcement, 70, 71.
63 VIEWS OF MR. CLAY. [§ 64
with the provision of the Constitution of the United States, by
which the Senate is a component part of the treaty-making power ;
and that the consent and advice of that branch of Congress are
indispensable in the formation of all treaties. According to the
practice of this government, the Senate is not ordinarily con-
sulted in the initiatory state of a negotiation, but its consent
and advice are only invoked, after a treaty is concluded, under
the direction of the President, and submitted to its consideration.
Each of the two branches of the treaty-making authority is in-
dependent of the other, whilst both are responsible to the States
and to the people, the common sources of their respective pow-
ers. It results, from this organization, that, in the progress of
the government, instances may sometimes occur of a difference
of opinion between the Senate and the Executive as to the ex-
pediency of a projected treaty, of which the rejection of the
Colombian convention affords an example. The people of the
United States have justly considered that, if there be any incon-
veniences in this arrangement of their executive powers, those
inconveniences are more than counterbalanced by the greater se-
curity of their interests, which is effected by the mutual checks
which are thus interposed. But it is not believed that there are
any inconveniences to foreign powers of which they can with
propriety complain. To give validity to any treaty, the consent
of the contracting parties is necessary. As to the mode by which
that consent shall be expressed, it must necessarily depend with
each upon its own peculiar constitutional arrangement. All that
can rightly be demanded in treating is to know the contingencies
on the happening of which that consent is to be regarded as
sufficiently testified. This information the government of the
United States has always communicated to the foreign powers
with which it treats, and to none more fully than to the United
Kingdom of Great Britain and Ireland. Nor can it be admitted
that any just cause of complaint can arise out of the rejection
by one party of a treaty which the other has previously ratified.
When such a case occurs, it only proves that the consent of both,
according to the constitutional precautions which have been pro-
vided for manifesting that consent, is wanting to make the treaty
valid. One must necessarily precede the other in the ac-t of
ratification; and if, after a treaty be ratified by one party, a
ratification of it be withheld by the other, it merely shows that
64]
MAKING OF TREATIES.
64
one is, and th } other is not, willing to come under the obligations
of the proposed treaty."20
As a ratification by the Senate is essential to the full execution
of a treaty, Jt is competent for the President to withhold from
the Senate a treaty that has been negotiated, or he may submit a
treaty with a recommendation that it be amended in certain par-
ticulars, and treaties may also be withheld either for the purpose
of modification by negotiation or of termination of proceedings
on them.21
20 Mr. Clay, Secretary of State, to
Mr. Addington, April 6, 1825, Am.
State Papers, For. Eel., V, 783.
21 Mr. Crandall on this subject says :
"As all treaties must receive this
final ratification, the President may at
will, so far as depends on his con-
stitutional power, withhold from the
Senate a treaty already negotiated.
Of treaties thus withheld the Monroe-
Pinkney treaty with Great Britain of
December 31, 1806, a treaty with
Mexico signed March 21, 1853, rela-
tive to a transit way across the Isth-
mus of Tehuantepec, an extradition
convention with Colombia signed
March 30, 1872, a convention with
Switzerland signed February 14, 1885,
for the protection of trademarks, and
the convention adopted in April, 1890,
by the First International American
Conference for the establishment of
a tribunal of arbitration, are ex-
amples. Or the treaty may be sub-
mitted, accompanied with recommen-
dations for amendments. President
Pierce in submitting on February 10,
1854, the Gadsden treaty of Decem-
ber 30, 1853, recommended certain
amendments. President Cleveland in
submitting, July 5, 1888, an extradi-
tion treaty signed May 7, 1888, with
Colombia, called attention to changes
suggested by the Secretary of State.
On December 16, 1845, President Polk
communicated to the Senate an extra-
dition treaty, signed January 29, 1845,
with Prussia, and certain other Ger-
man states, and at the same time sug-
gested a modification of Article III,
in which it was stipulated, contrary to
the rule then consistently maintained
by the United States, that the con-
tracting parties should not be bound
to deliver up their own citizens. The
Senate having failed to make the
amendment in its resolution of June
21, 1848, advising the ratification, the
President, for this as well as for other
reasons, refused to ratify the treaty.
' ' So also treaties may be with-
drawn from the consideration of the
Senate either to effect changes by
negotiation or to terminate proceed-
ings on them. A treaty with Bel-
gium, signed November 4, 1884, regu-
lating the right of succession to and
the acquisition of property, was with-
drawn from the Senate by President
Arthur by a message of February 17,
1885, and was not resubmitted. Presi-
dent Cleveland in messages of March
13, 1885, April 2, 1885, and March
9, 1893, requested the return of
treaties concluded by his predeces-
sors— November 18, 1884, with Spain
for commercial reciprocity; Decem-
ber 1, 1884, with Nicaragua relative
to the construction of an interoceanic
canal; December 4, 1884, with the
Dominican Kepublic for commercial
reciprocity; an article signed June
65
ADDING DECLARATION.
[§ 65
§ 65. Adding declaration. — When a written declaration is an-
nexed by one of the parties to the treaty at the time of its
ratification for the purpose of explaining ambiguous language or
of adding a new and distinct stipulation, and the treaty with
such declaration attached is afterward ratified by the other party,
the declaration becomes a part of the treaty.22 But a proviso
made by one party that a treaty shall be considered effective only
on certain conditions may be considered as directory merely.23
The treaty made in 1819 between the United States and the
King of Spain annuls the grant of lands in Florida by the King
of Spain to the Duke of Alagon, irrespective of the fact whether
it takes date from the royal order of December 17, 1817, or from
23, 1884, with the Argentine Confed-
eration supplementary to the treaty
of commerce of July 27, 1853; and
the Hawaiian annexation treaty signed
February 14, 1893. President Roose-
velt, in a message of December 8,
1902, requested the return of a com-
mercial convention with the Domini-
can Republic signed June 25, 1900,
together with an additional article
thereto, and a convention with Great
Britain signed January 30, 1897, rela-
tive to the demarcation of the Alaskan
boundaries. Instances of withdrawals
for the purpose of making slight
changes are quite numerous. The con-
vention with Spain, signed August 7,
1882, supplementary to the extradi-
tion convention of January 5, 1877,
was returned for verbal changes at
the request of the Secretary of State
made to the chairman of the Com-
mittee on Foreign Relations. ' ' Cran-
dall's Treaties, Their Making and
Enforcement, 82, 83.
Speaking of treaties rejected by the
Senate, he says: "Of treaties rejected
by the Senate, through a failure to
act on them, or outright, may be
mentioned, besides the various recent
treaties for commercial reciprocity,
the important treaties signed March
Treaties — 5
25, 1844, with the German Zollverein;
July 20, 1855, with Hawaii; Octo-
ber 24, 1867, with Denmark for the
cession of the islands of St. Thomas
and St. John; November 29, 1869,
for the annexation of the Dominican
Republic; December 10, 1824, with
Colombia for the suppression of the
African slave trade; March 6, 1835,
with the Swiss Confederation; April
12, 1844, for the annexation of Texas ;
December 14, 1859, with Mexico rela-
tive to transits and commerce; March
5, 1860, with Spain for the settle-
ment of claims; May 21, 1867, with
Hawaii for commercial reciprocity;
and the following with Great Brit-
ain; January 14, 1869, for the ad-
justment of outstanding claims; June
25, 1886, for the extradition of crim-
inals; February 15, 1888, for the
regulation of the fisheries; and Jan-
uary 11, 1897, for the settlement of
disputes by arbitration." Crandall's
Treaties, Their Making and Enforce-
ment, 71, 72.
'* Doe v. Braden, 16 How. 635, 14
L. ed. 1090.
23 New York Indians v. United
States, 170 U. S. 22, 18 Sup. Ct. Rep.
531, 42 L. ed. 927.
§ 66] MAKING OP TREATIES. 66
the grant of February 6, 1818, by reason of a declaration to that
effect which the President of the United States made on the pres-
entation of the treaty for an exchange of ratifications, and to
which the King of Spain gave his assent in writing, and which
was again ratified by the Senate of the United States.24
§ 66. Proviso adopted by Senate. — The Senate adopted sev-
eral amendments to a treaty between the United States and the
New York Indians, which had been duly signed and submitted to
the Senate, and also added a proviso that the treaty should have
no force or effect until the acceptance of these amendments, and
that if any part of the Indians should fail to emigrate, the Presi-
dent should deduct a quantity of land from that granted to them.
The proviso was not found either in the original or in the pub-
lished copy of the treaty, or in the proclamation of the Presi-
dent publishing the treaty. The question arose whether the
proviso ever became operative, and the government relied upon
Doe v. Braden,25 but the court said that the question in that
case was whether the king had power to annul the grant, which
was considered a political and not a judicial question, and that
from the fact that the annulling clause had been inserted in the
ratification and published in both countries as part of the treaty,
there could be no question whatever of concealment. But as to
the proviso added by the Senate to the Indian treaty, the court
said: "In any event it is' difficult to see how it can be regarded
as part of the treaty or as limiting at all the terms of the grant.
The power to make treaties is vested by the Constitution in the
President and Senate, and while this proviso was adopted by the
Senate, there is no evidence that it ever received the sanction or
approval of the President. It cannot be considered as a legisla-
tive act, since the power to legislate is vested in the President,
Senate and House of Representatives. There is something, too,
which shocks the conscience in the idea that a treaty can be put
forth as embodying the terms of an arrangement with a foreign
power, or an Indian tribe; a material provision of which is un-
known to one of the contracting parties, and is kept in the back-
ground to be used by the other only when the exigencies of a
24 Doe v. Braden, 16 How. 635, 14 25 16 How. 635, 14 L. ed. 1090.
L. ed. 1090.
67 AMENDMENT BY DECLARATION OP INTERPRETATION. [§§ 67, 68
particular case may demand it."26 The supplemental article of
the treaty of 1800 was appended to the treaty after it was signed,
and therefore cannot be referred to for the purpose of explain-
ing the preceding articles.27
§ 67. Amendment by declaration of interpretation. — A treaty
cannot be amended without the consent of the Senate by making a
declaration of interpretation. The American Minister at Athens
was authorized in 1864 to conclude with Greece a convention
relative to the registration of trademarks. He conferred with
the minister for foreign affairs of that country, and was ad-
vised that the ratification of the chamber of deputies was neces-
sary to the execution of the convention, and that much time
might elapse, owing to the condition of affairs then existing, be-
fore the consent of that body could be secured. The American
Minister signed with the minister for foreign affairs a declara-
tion, which by means of an interpretation of the existing treaty
attempted to accomplish the purpose desired. The Department
of State took the view that the treaty then in existence was not
susceptible of the construction placed upon it, and deemed the
declaration to be in effect a new treaty, which could be ratified
only by the President, with the advice and consent of the Senate.
The State Department maintained this view, and as there was a
disinclination on the part of the government of Greece to ne-
gotiate a formal convention, instructions were sent to the Ameri-
can Minister to proceed no further.28
§ 68. Views of Department of State. — It was proposed by
a protocol or declaration to determine the construction of cer-
tain provisions of the convention of March 14, 1884, relating to
submarine cables, and the American Minister was authorized to
sign the protocol subject to the approval of the Senate. The
26 New York Indians v. United tary of State, No. 41, July 21, 1894,
States, 170 U. S. 22, 18 Sup. Ct. Eep. For. Eel. 1894, 295; Mr. Gresham to
531, 42 L. ed. 927. Mr. Alexander, No. 43, February 21,
27 The Tom, 39 Ct. of Cl. 290. 1895, For. Eel. 1895, II, 759; Mr.
28 Mr. Uhl, Acting Secretary of Olney, Secretary of State, to Mr. Alex-
State, to Mr. Alexander, No. 21, ander, No. 75, November 9, 1895, Id.
May 16, 1894, For. Eel. 1894, 293; Mr. 763.
Alexander, to Mr. Gresham, Secre-
§ 68] MAKING OF TREATIES. 68
Secretary of State was requested to authorize the signing of the
protocol unconditionally. With this request he did not comply,
and 'in a note to the American Minister to France stated:
"By the Constitution of the United States treaties made un-
der the authority of the United States are a part of the supreme
law of the land, and the convention of the 14th of March, 1884,
having been made in accordance with the Constitution, is a part
of that supreme law.
"But, whilst it is true that treaties are a part of the supreme
law of the land, they are nevertheless to be viewed in two lights ;
that is to say, in the light of politics and in the light of judicial
law. Where the construction of a treaty is a matter of national
policy, the authoritative construction is that of the political
branch of the government. It is the function of the Executive
or of Congress, as the case may be. When a political question is
so determined, the courts follow that determination. Such was
the decision of the Supreme Court in cases arising under the
treaty of 1803 with France, of 1819 with Spain, and of 1848 with
Mexico.
"But where a treaty is to be construed merely as a municipal
law, affecting private rights, the courts act with entire inde-
pendence of the Executive, in construing both the treaty and the
legislation that Congress may have adopted to carry it into ef-
fect. And while great weight might be given by the courts to an
opinion of the Executive in that relation, such an opinion would
not be regarded as having controlling force."
He stated that the declaration in question was intended to
determine two questions, that of penal responsibility, for the ac-
cidental or necessary breaking or injury of a cable in an attempt
to repair another cable; and that of civil responsibility, for in-
juries done to a cable in an effort to lay or repair another cable.
"These are judicial questions," he declared, "to be determined
by the courts before whom the appropriate suits may be brought.
The only power that can authoritatively construe a treaty for the
judicial tribunal on questions of the character described is the
legislature, or the treaty-making power itself. In either case the
result would be a law which would be binding upon the courts.
" It is to be observed in this connection that the treaty in ques-
tion is not self-executing, and that it requires appropriate legisla-
tion to give it effect. If, under these circumstances, the Execu-
1 69 SENATE RESOLUTION CONTROLLING MEANING OF TREATY. [§ 69
tive should now assume to interpret the force and effect of the
convention, we might hereafter have the spectacle, when Con-
gress acted, of an Executive interpretation of one purport and a
different Congressional interpretation, and this in a matter not of
Executive cognizance.
"For the reasons stated it was not deemed expedient to author-
ize you to sign the declaration unconditionally. And as the ses-
sion of Congress was drawing to a close when the note of the
French minister was received, and it seemed impracticable to se-
cure the Senate's ratification of the declaration before adjourn-
ment, it was not thought best to send you such telegraphic in-
structions as were solicited.
"I desire, however, to refer to an incident in our diplomatic
history w^hich bears upon the matter under consideration and
which might have been regarded as a precedent for the Execu-
tive in this case, if circumstances had seemed to require a differ-
ent course from that which has been taken. I refer to the pro-
tocol which accompanies the treaty of Guadalupe Hidalgo, in the
volume of treaties between the United States and other powers.
.... The expressed object of this protocol was to explain the
amendments of the Senate. It was defended by the administra-
tion on this ground ; and in a message to the House of Representa-
tives, the President stated that 'had the protocol varied the
treaty, as amended by the Senate of the United States, it would
have no binding effect/ But notwithstanding this explanation,
the course of the President in not submitting the protocol to the
Senate before the exchange of ratifications of the treaty was
severely criticised in Congress."29
§ 69. Senate resolution controlling meaning of treaty. — The
meaning of a treaty cannot be controlled by a resolution of the
Senate adopted by a vote of less than two-thirds of a quorum
that it was not intended to have a certain effect. After the rati-
fication of the treaty with Spain, by which the Philippine Islands
were ceded to the United States, the Senate adopted a resolu-
tion, "That by the ratification of the treaty of peace with Spain
it is not intended to incorporate the inhabitants of the Philippine
29 Mr. Bayard, Secretary of State, to Mr. McLane, Min. to France, Nov.
24, 1886, For. Eel. 1887, 274.
§ 69] ' MAKING OF TREATIES. 70
Islands into citizenship of the United States, nor is it intended to
permanently annex said islands as an integral part of the ter-
ritory of the United States ; but it is the intention of the United
States to establish on said islands a government suitable to the
wants and conditions of the inhabitants of said islands, to pre-
pare them for local self-government, and in due time to make
such disposition of said islands as will best promote the interests
of the United States and the inhabitants of said islands. ' ' 30 Mr.
Chief Justice Fuller, speaking of the effect of this resolution,
said: "It is enough that this was a joint resolution; that it was
adopted by the Senate by a vote of 26 to 22, not two-thirds of a
quorum; and that it is absolutely without legal significance in
the question before us. The meaning of the treaty cannot be
controlled by subsequent explanations of those who may have
voted to ratify it. What view the House might have taken as
to the intention of the Senate in ratifying the treaty we are not
informed, ' nor is it material ; and if any implication from the
action referred to could properly be indulged in it would seem
to be that two-thirds of a quorum of the Senate did not consent
to the ratification on the grounds indicated."
Mr. Justice Brown, in a concurring opinion, declared that the
case would not be essentially different if the resolution had been
adopted by a unanimous vote of the Senate. "Obviously, the
treaty," said he, "must contain the whole contract between the
parties, and the power of the Senate is limited to a ratification
of such terms as have already been agreed upon between the
President, acting for the United States, and the commissioners
of the other contracting poweT. The Senate has no right to ratify
the treaty and introduce new terms into it, which nhall be obliga-
tory upon the other power, although it may refuse its ratifica-
tion, or make such ratification conditional upon the adoption of
amendments to the treaty. If, for instance, the treaty with
Spain had contained a provision instating the inhabitants of the
Philippines as citizens of the United States, the Senate might have
refused to ratify it until this provision was stricken out. But
it could not, in my opinion, ratify the treaty and then adopt a
resolution declaring it not to be its intention to admit the in-
habitants of the Philippine Islands to the privileges of citizen-
30 32 Cong. Eec., 55 Cong., p. 1847.
71 EXECUTIVE AGREEMENTS. [§§ 70, 71
ship of the United States. Such resolution would be inoperative
as an amendment to the treaty, since it had not received the as-
sent of the President or the Spanish commissioners."31
§ 70. Executive agreements.— The President has frequently,
pending negotiations for a permanent settlement of controversies,
made agreements taking the shape of an exchange of notes or
of a formal protocol. These, ordinarily, are not submitted to the
Senate for ratification. An agreement of this character, com-
monly called a modus vivendi, was made with Great Britain in
1891, to provide for the protection of fur seals in Bering Sea.
While negotiations for a treaty of arbitration were pending, a
similar modus vivendi was concluded in 1893, but as it admitted
the possibility of a future award of damages against the United
States, it was submitted to the Senate. In 1899, pending the
permanent settlement of the boundary of Alaska, a modus vivendi
was concluded, and likewise while the ratification of the con-
vention signed February 15, 1888, for the adjustment of the ques-
tion relating to the northeastern fisheries, was pending, a modus
vivendi was arranged by the commissioners of the United States
and Great Britain.32 In 1877 a "protocol of conference and
declarations concerning judicial procedure was signed by Mr.
Gushing, as minister plenipotentiary of the United States to
Spain, and Senor Calderon y Collantes, as Spanish minister of
state. Certain pledges were contained in the protocol on the
part of Spain, as to the treatment of citizens of the United States
residing in her ultramarine possessions, while Mr. Gushing made,
on the part of the United States, certain declarations as to the
state of the existing law in that country. " ^
§ 71. Protocols within executive authority. — "Protocols of
agreement as to the basis of future negotiations are clearly
within Executive authority. Such are, for instance, the protocols
signed with Costa Rica and Nicaragua, December 1, 1900, in ref-
erence to possible future negotiations for the construction of an
interoceanic canal by way of Lake Nicaragua The final
31 The Diamond Kings, 183 U. S. Power Under the Constitution, 11
176, 22 Sup. Ct. Eep. 59, 46 L. ed. Yale Law Journal, 77 (Dec., 1901).
138. 33 United States Treaty, Volume
32 J. W. Foster, Treaty-making 1030.
§ 71] MAKING OP TREATIES. 72
protocol signed at Peking, September 7, 1901, by the allied pow-
ers on the one hand, and by China, on the other, at the con-
clusion of the Chinese troubles, likewise was not submitted to
the Senate."34
On October 20, 1899, a provisional boundary line between
Alaska and the Dominion of Canada, in the vicinity of Lynn
Canal, was effected through a modus vivendi, by an exchange of
notes between Mr. Hay, Secretary of State, and Mr. Tower,
British charge d'affaires at Washington.35 In 1882, Mr. Frel-
inghuysen, Secretary of State, and Senor Romero, the Mexican
Minister, arranged for the reciprocal crossing and recrossing of
the frontier, by the troops of the United States and Mexico, in
pursuit of marauding Indians, and this agreement was prolonged
successively until 1886. On June 4, 1896, an agreement of a
more formal character for the same purpose was entered into
between Mr. Olney and Senor Romero, who by the Mexican
Senate was authorized to enter into the agreement.36
Mr. Foster, Secretary of State, in a report to the President,
stated that "an exchange of diplomatic notes has often suf-
ficed without any further formality of ratification or exchange
of ratifications, or even of proclamation, to effect purposes more
usually accomplished by the more complex machinery of trea-
ties."37
34 Crandall's Treaties, Their Mak- ston. On receipt of this protocol,
ing and Enforcement, 87. Mr. Webster, January 17, 1851, in-
a5 For. Eel. 1899, 328-330. structed Mr. Lawrence to ' address
36 For. Eel. 1882, 419, 421; For. a note to the British secretary of
Eel. 1896, 438. state for foreign affairs, acquainting
37 Sen. Ex. Doc. 9, 52 Cong. 2 him that the arrangement referred to
Sess., H. Doc. 471, 56 Cong. 1 Sess. 16, is approved by this government. '
17. In that report he said : . " On De- Mr. Lawrence did so on the 10th ot
cember 9, 1850, in a conference held February, 1851, and the acknowledg-
at the foreign office in London be- ment of his note by the British sec-
tween the United States Minister, retary of state closed the transac-
Abbott Lawrence and Lord Palmer- tion. No ratification occurred on
ston, it was agreed that the Cana- either side. Congress appropriated
dian territory of Horseshoe Eeef, in money for the erection of a light-
the Niagara Eiver, should be ceded to house which was built ; and the United
the United States for the purpose of States thus possesses and exercises
erecting a lighthouse thereon. A full jurisdiction over territory ac-
memorandum, or protocol, of this quired by cession from a foreign
agreement was drawn up and signed power without a treaty."
by Mr. Lawrence and Lord Palmer-
73 INSTANCES. [§ 72
§ 72. Instances. — In 1899, an agreement was entered into by
Brigadier-General Bates, with the Sultan of Sulu and his prin-
cipal chiefs, acknowledging the sovereignty of the United States
over the archipelago, suppressing piracy, providing for free
trade in the products of the archipelago with the Philippine
Islands, protecting the sultan against foreign aggression, and
providing for the payment of certain salaries to the sultan and
his associates in the administration of the islands. President
McKinley, in his annual message of 1899, stated that he had con-
firmed the agreement subject to the action of Congress, and with
the reservation, communicated to the Sultan at Sulu, that the
agreement should not be deemed a consent on the part of the
United States to the existence of slavery in the archipelago.38 In
187] a settlement of claims of American citizens arising from
the acts of the Spanish authorities in Cuba was arranged by an
exchange of notes between General Sickles, the American Minis-
ter to Spain, and the Spanish minister of state.39
The President is empowered by section 13 of the law of March
3, 1891, to extend the benefits of international copyright to citi-
zens and subjects of a foreign state when he has received as-
surance that citizens of the United States are allowed the benefit
of copyright in that state, on the basis substantially as its own
citizens, or when it appears that the state is a party to an inter-
national agreement providing for reciprocity in the granting of
copyright, and permitting the United States at its pleasure to be-
come a party. The benefits of this has been extended by the
President to the subjects of several nations, among them Belgium,
Great Britain, France, Switzerland, Germany, Italy, Denmark,
Portugal, Spain, Mexico, Chile, Costa Rica, Netherlands, Cuba
and Norway. "Following the postal convention with New Gran-
ada of March 6, 1844, numerous other conventions of the same
nature were concluded by the President and ratified with the
consent of the Senate. By the act of June 8, 1872, the Post-
master-General is given the power to enter into money-order
agreements with the post departments of foreign governments,
and by and with the advice and consent of the President, to nego-
tiate and conclude postal conventions. In virtue of this act, con-
38 For. Eel. 1899, XLIX. 7, 1892; H. Doe. 471, 56 Cong. 1
39 Keport of Mr. Foster, Secretary Sess. 17; Sen. Ex. Doc. 9, 56 Cong.
of State, to the President, December 1 Sess.
§ 73] MAKING OP TREATIES. 74
ventions of this class have been concluded by the Executive with-
out submission to the Senate. Among these are the Universal
Postal Conventions, signed at Vienna, July 4, 1891, and at Wash-
ington, June 15, 1897. "40
§ 73. Suspension of tariff act by President. — A section of a
tariff act which authorizes the President to suspend the provisions
of the act relating to the introduction, free of duty, of certain
articles is not unconstitutional. It cannot be said to be liable
to the objection that it transfers legislative 'and treaty-making
power to the President.41
"That Congress cannot delegate legislative power to the Pres-
ident is a principle universally recognized as vital to the integrity
and maintenance of the system of government ordained by the
Constitution. The Act of October 1st, 1890, in the particular un-
der consideration, is not inconsistent with the principle. It does
not, in any real sense, invest the President with the power of
legislation. For the purpose of securing reciprocal trade with
countries producing and exporting sugar, molasses, coffee, tea,
and hides, Congress itself determined that the provisions of the
Act of October 1st, 1890, permitting the free introduction of such
articles, should be suspended as to any country producing and
exporting them, that imposed exactions and duties on the agri-
cultural and other products of the United States, which the Pres-
ident deemed, that is, which he found to be, reciprocally unequal
and unreasonable. Congress itself prescribed, in advance, the
duties to be levied, collected and paid, on sugar, molasses, coffee,
tea or hides, produced by or exported from such designated coun-
try, while the suspension lasted. Nothing involving the expedi-
ency or the just operation of such legislation was left to the
determination of the President. The words, 'he may deem,' in
the third section, of course, implied that the President would ex-
amine the commercial regulations of other countries producing
and exporting sugar, molasses, coffee, tea and hides, and form a
judgment as to whether they were reciprocally equal and reason-
able, or the contrary, in their effect upon American products. ' ' 42
40 CrandalPs Treaties, Their Mak- 42 Field v. Clark, 143 U. S. 649, 12
ing and Enforcement, 92. Sup. Ct. Eep. 495, 36 L. ed. 294.
41 Field v. Clark, 143 U. S. 649, 12 "Ten commercial arrangements
Sup. Ct. Kep. 495, 36 L. ed. 294. were concluded and made effective
75 *TG EjtfGKETJOi,' 1-v 7 HP- i?i\&SU/J!iNT. [§ 74
§ 74. No discretion in the President.— The view taken of the
powers of the President in such a case is that while he may, and
must, exercise his discretion in determining whether, as a fact,
a certain event has or has not occurred, still when he has deter-
mined as a fact that an event has happened authorizing him to
issue a proclamation, it becomes his duty to issue such proclama-
tion. In the language of Mr. Justice Harlan, speaking for the
court, "when he ascertained the fact that duties and exactions,
reciprocally unequal and unreasonable, were imposed upon the
agricultural or other products of the United States by a country
producing and exporting sugar, molasses, coffee, tea, or hides, it
became his duty to issue a proclamation declaring the suspension,
as to that country, which Congress had determined should occur.
He had no discretion in the premises except in respect to the dura-
tion of the suspension so ordered. But that related only to the
enforcement of the policy established by Congress. As the sus-
pension was absolutely required when the President ascertained
the existence of a particular fact, it cannot be said that in ascer-
taining that fact and in issuing his proclamation, in obedience
to the legislative will, he exercised the function of making laws.
Legislative power was exercised when Congress declared that the
suspension should take effect upon a named contingency. What
by means of this section — Jan- secured in favor of the products of
uary 31, 1891, with Brazil; June 4, the United States; and it further
the Dominican Bepublic; June 16, authorizes the President, when such
Spain; December 30, Guatemala; concessions are, in his judgment, re-
January 30, 1892, Germany; Feb- ciprocal and equivalent, to suspend,
ruary 1, Great Britain; March 11, by proclamation, the collection on
Nicaragua; April 29, Honduras; those articles of the regular duties
May 25, Austria-Hungary; and No- imposed by the Act, and subject them
vember 29, Salvador. These were to special rates as provided in the
all terminated by section 71 of the section. On the authority of this
tariff act of August 27, 1894 ..... section the President has concluded
Section 3 of the act of July 24, and made effective the commercial
1897, not only provides, as did sec- agreements of May 28, 1898, with
tion 3 of the act of 1890, for the France; May 22, 1899, with Portu-
imposition by proclamation of certain gal (protocol making corrections
differential rates, but also for the signed January 11, 1900) ; July 10,
conclusion by the President of com- 1900, with Germany; and February
mercial agreements, with countries 8, 1900, with Italy." CrandalPs
producing certain enumerated ar- Treaties, Their Making and Enforce-
ticles, in which concessions may be inent, 88-90.
§ 75] MAKING OP TREATIES. 76
the President was required to do was simply in execution of the
Act of Congress. It was not the making of law. He was the
mere agent of the law-making department to ascertain and de-
clare the event upon which its expressed will was to take effect.
It was a part of the law itself as it left the hands of Congress
that the provisions, full and complete in themselves, permitting
the free introduction of sugars, molasses, coffee, tea, and hides,
from particular countries, should be suspended, in a given con-
tingency, and that in case of such suspension certain duties should
be imposed."43
§ 75. Nonintercourse act. — The nonintercourse act of 1809 for^
bade the importation, after a certain date, of goods, wares, or
merchandise from any port or place in Great Britain or France,
with the proviso that the President of the United States should
be authorized, in case either France or Great Britain shall so
revoke or modify her edicts as that they shall cease to vio-
late the neutral commerce of the United States, to declare the
same by proclamation, and that after the making of the proclama-
tion, the trade suspended by that act, and the act imposing an
embargo, could "be renewed with the nation so doing."44 This
act expired on May 1, 1810, and on that day another act was
passed by Congress in which it was declared that in case either
Great Britain, before a certain day, should so revoke or modify
her edicts "as that they shall cease to violate the neutral com-
merce of the United States, which fact the President of the United
States shall declare by proclamation," and if the other nation
shall not, within a specified time, revoke or modify her edicts in
like manner, then certain sections of the act of 1809 "shall from
and after the expiration of three months from the date of the
proclamation aforesaid, be revived and have full force and
effect, so far as relates to the dominions, colonies, and depend-
encies, and to the articles, the growth, produce or manufacture of
the dominions, colonies, and dependencies of the nation thus re-
fusing or neglecting to revoke or modify her edicts in the manner
aforesaid." It was further provided that "the restrictions im-
posed by this Act shall, from the date of such proclamation, cease
43 Field v. Clark, 143 U. S. 49, 12 44 2 Stats, at Large, 528.
Sup. Ct. Eep. 495, 36 L. ed. 294.
77 SUSPENSION AND OPERATION OF ACTS. [§ 76
and be discontinued in relation to the nation revoking or mod-
ifying her decrees in the manner aforesaid." 45
President Madison, in 1810, issued a proclamation to the effect
that France had either revoked or modified her edicts in such a
manner that they ceased to violate the neutral commerce of the
United States. It was contended that it was incompetent for
Congress to transfer legislative power to the President, and that
the making of a law dependent upon the proclamation of the
President was to give to that proclamation the effect of a law.
The answer made to this contention was that the legislature did
not transfer any power of legislation to the President, but only
prescribed the evidence which should be admitted of a fact, upon
the occurrence of which the law should go into effect. The
court held that the legislature might make the revival of an act
dependent upon a future event, and might also provide that event
to be made known by proclamation. A subsequent act of Con-
gress reviving a prior act revives it precisely in the same form and
with the same effect that it had at the moment of its expiration.46
§ 76. Suspension and operation of acts dependent upon Pres-
ident.— An act approved June 4, 1794, during the administration
of Washington, authorized the President, when Congress was not
in session and for a specified period, "whenever, in his opinion,
the public safety shall so require, to lay an embargo on all ships
and vessels in the ports of the United States, or upon the ships
and vessels of the United States, or the ships and vessels of any
foreign nation, under such regulations as the circumstances may
require, and to continue or revoke the same, whenever he shall
think proper. " 47 In 1798, by an act approved on the 13th of
June of that year, commercial intercourse between the United
States and France and its dependencies was suspended. But the
act provided that if the government of France, and all persons
acting by or under its authority, before the next session of Con-
gress should "clearly disavow," and should "be found to refrain
from the aggressions, depredations, and hostilities which have
been and are by them encouraged and maintained against the
vessels and other property of the citizens of the United States,
43 2 Stats, at Large, 605, 606. 47 1 Stats, at Large, 372.
46 Brig Aurora v. United States, 7
Cranch, 382, 3 L. ed. 378.
§ 77] MAKING OF TREATIES. 78
and against their natural rights and sovereignty, in violation of
the faith of treaties and the laws of nations," and should " there-
by acknowledge the just claims of the United States to be con-
sidered as in all respects neutral, and unconnected in the present
European war, if the same shall be continued, then and there-
upon, it shall be lawful for the President of the United States,
being well ascertained of the premises, to remit and discontinue
the prohibitions and restraints hereby enacted and declared ; and
he shall be and is hereby authorized to make proclamation thereof
accordingly." 48 By a subsequent act approved February 9, 1799,
commercial intercourse with France and its dependencies was
further suspended, and it was provided by this act that at any
time after its passage, "it shall be lawful for the President of
the United States, if he shall deem it expedient and consistent
with the interest of the United States, by his order, to remit and
discontinue, for the time being, the restraints and prohibitions
aforesaid, either with respect to the French Republic, or to any
island, port, or place belonging to the said republic, with which a
commercial intercourse may safely be renewed ; and also to revoke
such order whenever, in his opinion, the interest of the United
States shall require; and he shall be, and hereby is, authorized
to make proclamation thereof accordingly. ' ' 49 Under this act,
on June 26, 1799, and May 21, 1800, proclamations were issued
by the President declaring it lawful for vessels departing from
the United States to enter certain ports of San Domingo.50
§ 77. Suspension of act prohibiting imports. — Congress passed
an act, approved April 18, 1806, making it unlawful to import into
the United States from any port or place in Great Britain or
Ireland; or in any of the colonies or dependencies of Great Britain,
articles of which leather, silk, hemp, flax, tin, or brass was the
material of chief value, woolen cloths whose invoice prices ex-
ceeded five shillings sterling per square yard, woolen hosiery,
manufactures of glass, silver and plated wares, hats, nails, spikes,
ready-made clothing, millinery, beer, ale, porter, pictures and
prints.51 By the subsequent act of December 19, 1806, the opera-
tion of the act above mentioned was suspended, with a section
48 1 Stats, at Large, 565. B0 9 Life and Works of John
49 1 Stats, at Large, 613. Adams, 176, 177.
51 2 Stats, at Large, 379.
79 SUSPENSION OF ACT PROHIBITING IMPORTS. [§ 78
that the President was authorized "to suspend the operation of
the aforesaid act, if in his judgment the public interest should
require it ; provided that such suspension shall not extend beyond
the second Monday in December next."52 In 1815 an act was
passed providing that so much of the several acts imposing duties
on the tonnage of ships and vessels, and on goods, wares and
merchandise imported into the United States, as imposed a dis-
criminating duty on tonnage, between foreign vessels and vessels
of the United States, and between goods imported into the United
States in foreign vessels and vessels of the United States, should
be repealed, so far as the same respected the produce or manufac-
ture of the nation to which such foreign ships or vessels belonged.
But it was provided that such repeal should take effect in favor
of any foreign nation "whenever the President of the United
States shall be satisfied that the discriminating or countervailing
duties of such foreign nation so far as they operate to the disad-
vantage of the United States" had been abolished.53 President
Monroe received satisfactory evidence from the Free City of
Bremen that after a certain date all discriminating or counter-
vailing duties of the city, so far as they operated to the disad-
vantage of the United States, had been abolished. Accordingly,
on July 24, 1818, he issued a proclamation declaring that the acts
of Congress upon that subject were repealed so far as they related
to the produce and manufactures of that city, and he issued sim-
ilar proclamations relative to the produce and manufactures of
Hamburg, Lubeck, Norway, and the Dukedom of Ogdenburg.54
§ 78. Same subject — Continued.— The act of March 3, 1817,
prohibited the importation into the United States, in any foreign
vessel, after the fourth day of July of that year, of plaster of
paris, the production of any country or its dependencies from
which the vessels of the United States were not permitted to bring
the same article. The act, by its terms, w^as to continue in force
for five years from a certain date, with the provision that "if
any foreign nation or its dependencies which have now in force
regulations of the subject of the trade in plaster of paris, pro-
hibiting the exportation thereof to certain ports of the United
52 2 Stats, at Large, 411. M 3 Stats. App. 1.
53 3 Stats, at Large, 224.
§ 78] MAKING OF TREATIES. 80
States, shall discontinue such regulations, the President of the
United States is hereby authorized to declare that fact by his
proclamation, and the restrictions imposed by this act shall, from
the date of such proclamation, cease, and be discontinued in rela-
tion to the nation, or its dependencies, discontinuing such regula-
tions." 55 In pursuance of this provision President Monroe issued
proclamations respecting the trade with Nova Scotia and New
Brunswick.56
An act approved January 7, 1824, relating to discriminating
duties of tonnage and impost, provided that "upon satisfactory
evidence being given to the President of the United States, by the
government of any foreign nation, that no discriminating duties
of tonnage or impost are imposed or levied within the ports of
the said nation, upon vessels wholly belonging to citizens of the
United States, or upon merchandise, the produce or manufacture
thereof, imported in the same, the President is hereby authorized
to issue his proclamation, declaring that the foreign discriminat-
ing duties of tonnage and impost within the United States are,
and shall be, suspended and discontinued, so far as respects the
vessels of the said nation, and the merchandise of its produce or
manufacture, imported into the United States in the same; the
said suspension to take effect from the time of such notification
being given to the President of the United States, and to continue
so long as the reciprocal exemption of vessels belonging to the
citizens of the United States, and merchandise, as aforesaid,
thereon laden, shall be continued, and no longer.57 The statute
55 3 Stats, at Large, 361. 4, 1847, 9 Stats. App. 1001. By Fill-
56 3 Stats. App. 1. more, November 1, 1850, 9 Stats.
5T 4 Stats, at Large, 3. The act of App. 1004. By Buchanan, February
May 24, 1828, contained a similar 25, 1858, 11 Stats. App. 795. By
section. 4 Stats at Large, 308. See, Lincoln, December 16, 1863, 13 Stats,
also, U. S. Eev. Stats., sec. 4228. App. 739. By Johnson, December
The following proclamations were 28, 1886, and January 29, 1867, 14
issued by the Presidents of the United Stats. App. 818, 819. By Grant,
States in execution of these acts: By June 12, 1869, November 20, 1869,
Adams, July 21, 1828, 4 Stats. App. February 25, 1871, December 19,
815. By Jackson, May 11, 1829, June 1871, September 4, 1872, and Octo-
3, 1829, September 18, 1830, April ber 30, 1872, 16 Stats. App. 1127-
28, 1835, and September 1, 1836, 4 1137; 17 Stats. App. 954-957. By
Stats. App. 814, 815, 816; 11 Stats. Hayes, November 30, 1880, 21 Stats.
App. 781, 782. By Polk, November at Large, 800.
81 IMPORTATION OF NEAT CATTLE. [§ 79
of May 31, 1830, repealed all acts and parts of acts imposing
duties upon the tonnage of ships and vessels of foreign nations,
but provided that the President of the United States should be
satisfied of the abolition of the discriminating or countervailing
duties of such foreign nations to the extent to which they oper-
ated to the disadvantage of the United States.58
President Pierce, pursuant to the act of Congress of August 5,
1854, effectuating the treaty between the United States and Great
Britain, of June 5, 1854, issued a proclamation on December 12,
1855, declaring that he had received satisfactory evidence that
the province of Newfoundland had consented in a due and proper
manner to have the provisions of the treaty extended to it, and
to allow the United States the benefit of all its stipulations so far
as they were applicable, and, therefore, that certain articles speci-
fied in the treaty should be admitted from that province free of
duty.59
§ 79. Importation of neat cattle. — Congress, by an act ap-
proved March 6, 1866, prohibited the importation of neat cattle
and the hides of neat cattle from any foreign country into the
United States, but provided in the act that its operation might
be suspended as to any foreign country or countries, or any
parts of such country or countries, whenever the Secretary of the
Treasury should officially determine, and give public notice there-
of, that such importation would not tend to the introduction or
spread of contagious or infectious diseases among the cattle of
the United States. The act also provided that ''the President of
the United States, whenever in his judgment the importation of
neat cattle and the hides of neat cattle may be made without
danger of the introduction or spread of contagious or infectious
disease among the cattle of the United States, may, by proclama-
tion, declare the provisions of this Act to be inoperative, and
the same shall be afterward inoperative and of no effect from
and after thirty days from the date of said proclamation. ' ' 60
These provisions were embodied in sections 2493 and 2494
of the Revised Statutes until the passage of the act of March 3,
58 4 Stats, at Large, 425. Section M 10 Stats, at Large, 587; 11 Stats.
4:H9 of the Eevised Statutes con- at Large, 790.
tinues this provision. eo 14 Stats, at Large, 3.
Treaties — 6
§ 80] MAKING OF TREATIES. 82
1883.61 The tariff act of 1890 also prohibits the importation of
neat cattle and the hides of neat cattle from foreign countries,
but confers authority upon the Secretary of the Treasury to
suspend the operation of the act as to any country when he may
determine that such importation will not lead to the introduction
or spread of contagious or infectious diseases among the cattle
of the United States.62
§ 80. Products of Cuba and Porto Rico.— President Arthur,
acting under the authority of section 4228 of the Revised Stat-
utes, issued a proclamation by which he declared that after the
first day of March, 1884, duties on the products of, and articles
proceeding from, Cuba and Porto Rico under the Spanish flag
should be suspended and discontinued so long as the products of,
and articles proceeding from, the United States, imported into
those islands should be exempt from discriminating customs
duties.63 President Cleveland, upon the ground that higher and
discriminating duties continued to be imposed and levied in
these ports upon certain produce, manufactures and merchandise
imported into them from the United States and from foreign
countries, in vessels of the United States, than were imposed
and levied on like produce, manufactures and merchandise car-
ried to those ports in Spanish vessels, revoked by proclamation
the suspension made by President Arthur.64
An act of Congress, passed in 1884, removed certain burdens
on the American merchant marine, and for the purpose of en-
couraging the American foreign carrying trade imposed certain
tonnage duties upon vessels entering the United States from any
certain foreign ports. The President, however, was given au-
thority to suspend the collection of so much of those duties,
entering from certain ports, as might be in excess of the tonnage
and lighthouse dues, or other equivalent tax, imposed on Amer-
ican vessels by the government of the foreign country in which
such port was situated, and he was empowered upon the passage
of the act, "and from time to time thereafter as it may become
necessary by reason of changes in the laws of the foreign coun-
61 22 Stats, at Large, 489, c. 121, e:< 23 Stats, at Large, 835.
sec. 6. " 24 Stats, at Large, 1028.
e2 26 Stats, at Large, 616, c. 1244,
sec. 20.
83 APPROPRIATION OF MONEY. [§ 81
tries above mentioned, to indicate by proclamation the ports to
which such suspension shall apply, and the rate or rates of ton-
nag%e duty, if any, to be collected under such suspension."65
Both Presidents Arthur and Cleveland suspended by proclama-
tion the collection of duties on goods arriving from the certain
mentioned ports.66
§ 81. Appropriation of money.— At one time it was contended
that if a treaty was made by the United States providing for
the appropriation of money, the consent of the House, of Repre-
sentatives was necessary to carry the treaty into effect, and that
the power of the House to grant or refuse an appropriation for
the purpose was as well known to the other contracting party as
was the consent of the Senate to the preliminary adoption of the
treaty. Acting on the assumption that the House was free, if
so disposed, to refuse appropriation to effectuate a treaty, and
might itself determine whether the treaty should be made, the
House, on March 24, 1796, asked the President for the facts
relative to Jay's treaty, the ratification of which was proclaimed
by the President on February 29, 1796, and the proclamation was
communicated on March 1, 1796, to the two branches of Con-
gress. President Washington declined to comply with the re-
quest, saying: "Having been a member of the general conven-
tion, and knowing the principles on which the Constitution was
formed, I have ever entertained but one opinion on this subject;
and from the first establishment of the government to this
moment, my conduct has exemplified that opinion, that the power
of making treaties is exclusively vested in the President, by and
with the advice and consent of the Senate, provided two-thirds
of the Senators present concur; and that every treaty so made
and promulgated thenceforward became the law of the land. It
is thus that the treaty-making power has been understood by
65 23 Stats, at Large, 57. v. Laird, 1 Cranch, 299, 2 L. ed. 115;
60 23 Stats, at Large, 841, 842, 844. Martin v. Hunter, 1 Wheat. 304, 4
A practical construction of the Con- L. ed. 97; Cooley v. Port Wardens, 12
stitution as manifested by many How. 299, 13 L. ed. 996; Burrow-
acts of Congress covering a long Giles Lithographic Co. v. Sarony, 111
period of time should not be over- U. S. 53, 4 Sup. Ct. Kep. 279, 28 L.
ruled, unless the court is convinced ed. 349; The Laura, 114 U. S. 411,
that such legislation is clearly incom- 5 Sup. Ct. Eep. 881, 29 L. ed. 147.
patible with the Constitution. Stuart
§§ 82, 83] MAKING OP TREATIES. 84
foreign nations, and in all the treaties made with them we have
declared and they have believed, that, when ratified by the Pres-
ident, with the advice and consent of the Senate, they became
obligatory." He stated further that it was clear to his under-
standing that the assent of the House was not necessary to the
validity of a treaty, and "as the treaty with Great Britain ex-
hibits in itself all the objects requiring legislative provision, and
on these the papers called for can throw no light; and as it is
essential to the due administration of the government that the
boundaries fixed by the Constitution between the different de-
partments should be preserved, a just regard to the Constitution
and to the duty of my office, under all the circumstances of this
case, forbids a compliance with your request."67
Mr. Gushing, attorney general, said that although it may be
necessary for Congress in its legislative capacity to carry into
effect a treaty that had received the approval of the President
and Senate, such action should, under ordinary circumstances,
be deemed to be a political duty, and that such legislative assist-
ance had at no time been refused.68
§ 82. Moral obligation. — A treaty requiring to carry it into
effect the payment of money which can be appropriated only
by an act of the legislature, places upon Congress a moral obli-
gation to pass the necessary laws for that purpose. A refusal
so to do would be to break the public faith, and would give
a good and sufficient cause of war. The executive department
on which is conferred the right of treating and contracting with
other sovereignties must be deemed to be invested with all the
power necessary to make a valid contract and as competent to
bind at its discretion the national faith.69
§ 83. Alaska purchase. — The treaty of 1868 with Russia for
the cession of Alaska provided that Russia should receive an
indemnity of $7,200,000. At the session following the proclama-
e7 1 Kichardson's Messages, 195. exigencies, and necessarily involves in
68 6 Op. Atty. Gen. 296. it every portion of the national sover-
89 Duer's Outlines of Constitutional eignty of which the co-operation may
Jurisprudence of the United States, be necessary to give effect to negotia-
138. "The power to make treaties tions and contracts with foreign na-
must be coextensive with the national tions. ' ' Id.
85 ALASKA PURCHASE. [§ 83
tion of the treaty, when the question of making the appropriation
arose, there appeared a division of opinion, the majority of the
Committee of Foreign Affairs of the House of Representatives
reporting a bill making the necessary appropriation, while a
report was made by a minority of the committee recommending
the rejection of the purchase. The report of the majority ad-
mitted that there were cases in which the House would be
justified in withholding its assent, but held that such right
would exist only in cases plainly incompatible "with the funda-
mental principles, purposes or interests of the Constitution";
but that where it is limited to objects consistent with the interests
of the government, "its first and highest duty is to enact such
measures as are necessary to carry the treaty into effect. ' ' After
considerable debate, an amendment was passed by the House, in
which it was recited that the subjects "embraced in the stipula-
tions of said treaty are among the subjects which, by the Consti-
tution of the United States, are submitted to the power of Con-
gress, and over which Congress has jurisdiction; and it being
for such reason necessary that the consent of Congress should
be given to said stipulation before the same can have full force
and effect, having taken into consideration the said treaty, and
approving of the stipulations therein, to the end that the same
may be carried into effect," it was enacted: "That the assent
of Congress is hereby given to the stipulations of said treaty."
The Senate, by restoring the bill to its original form, rejected the
position of the House that it was essential to have the consent
of Congress as a legislative body to the payment of money and
the incorporation of territory when provided for by a treaty,
and finally the bill was sent to a committee of conference, which
agreed on a bill which recited the making of the treaty "by
the terms of which it was stipulated that in consideration of
the cession by the Emperor of Russia to the United States of
certain territory therein described, the United States should
pay to the Emperor of Russia, the sum of $7,200,000 in coin ; and
whereas it was further stipulated in said treaty that the United
States shall accept such cession, and that certain inhabitants of
said territory shall be admitted to the enjoyment of all the rights
and immunities of citizens of the United States; and whereas
said stipulations cannot be carried into full force and effect ex-
cept by legislation to which the consent of both Houses of Con-
§§ 84, 85] MAKING OF TREATIES. 86
gress is necessary." It was therefore resolved: "That there be,
and hereby is, appropriated from any money in the Treasury
not otherwise appropriated $7,200,000 in coin, to fulfill stipula-
tions contained in the sixth article of the treaty," etc.70 Mr.
Crandall, in his work on Treaties, says: "That Congress is un-
der no obligation to make the stipulated appropriation has not
been seriously advanced by the House since 1868, although in-
dividual advocates of this view have not been wanting."71
§ 84. Porto Rico as foreign territory. — In a case involving
the question whether Porto Rico after its cession to the United
States by the treaty with Spain was foreign country within the
meaning of the tariff act, the supreme court of the United States
said: "It may undoubtedly become necessary for the adequate
administration of a domestic territory to pass a special act pro-
viding the proper machinery and officers, as the President would
have no authority, except under the war power, to administer it,
himself; but no act is necessary to make it domestic territory, if
once it has been ceded to the United States. We express no
opinion as to wrhether Congress is bound to pay for it. This has
been much discussed by writers upon constitutional law, but it is
not necessary to consider it in this case, as Congress made prompt
appropriation of the money stipulated in the treaty. ' ' 72
§ 85. Treaty dependent upon legislative action. — A treaty will
operate immediately on all matters not requiring legislative ac-
tion, but if its operation is made dependent on legislative action,
it does not become operative until such action is taken.73 It is
to be presumed that every foreign government knows that where
a stipulation is contained in a treaty providing for the payment
of money it is necessary to have legislative sanction.74
70 Cong. Globe, 1867-68, 4031, 4159, man, 7 Pet. 51, 8 L. ed. 604; Garcia
4392; Wharton's Int. Law Dig., sec. v. Lee, 12 Pet. 511, 9 L. ed. 1176;
131a, II, 21. Haver v. Yaker, 9 Wall. 32, 19 L. ed.
71 CrandalPs Treaties, Their Mak- 571; Turner v. Baptist Union, 5 Mc-
ing and Enforcement, 132. Lean, 344, 25 Fed. Gas. No. 14,250;
72 De Lima v. Bidwell, 182 U. S. Bartram v. Kobertson, 15 Fed. 212,
1, 198, 21 Sup. Ct. Eep. 743, 45 L. 21 Blatchf. 211.
ed. 1041, 1056. 74 Turner v. Baptist Union, 5 Mc-
73 Foster v. Neilson, 2 Pet. 253, ? Lean, 347, Fed. Gas. No. 14,250.
U ed. 4il; United States v. Perche-
87 TIME WHEN TREATY TAKES EFFECT. [§ 86
CHAPTER V.
TAKING EFFECT AND TERMINATION OF TREATIES.
§ 86. Time when treaty takes effect.
§ 87. Sovereignty transferred at date of treaty.
§ 88. Postponing operation until approval of Congress.
§ 89. Question before the court.
§ 90. Reasoning of the court.
§ 91. Effect on individual rights.
§ 92. Retroactive effect.
§ 93. Authority of courts.
§ 94. Construction of treaty province of courts.
§ 95. Termination of treaties.
§ 96. Question a political one.
§ 97. Violation of treaty by one nation.
§ 98. Termination of treaties by notice.
§ 99. Subject matter covered by later treaty.
§ 86. Time when treaty takes effect. — Unless some provision
is made to the contrary, a treaty becomes binding on the re-
spective governments from the date of its signature. The ex-
change of ratifications has a retroactive operation.1 "All trea-
ties, as well those for cessions of territories as for other pur-
poses, are binding upon the contracting parties, unless when
otherwise provided in them from the day they are signed. The
ratification of them relates back to the time of signing/'2 The
treaty between Spain and the United States was signed Decem-
ber 10, 1898, but ratifications were not exchanged until April 11,
1899. Still the act of March 3, 1899, which prohibited unau-
thorized obstructions to navigation in the waters of the United
States, was considered to apply to the navigable waters of Porto
Rico.3
1 Davis v. Concordia, 9 How. 571; United States v. Reynes, 9 How.
(U. S.) 280, 13 L. ed. 138; Hyl- 127, 13 L. ed. 74; Davis v. Concordia,
ton v. Brown, 1 Wash. C. C. 343, 9 How. 280, 13 L. ed. 1041; Downes
Fed. Cas. No. 6982. v. Bidwell, 182 U. S. 1, 200, 21 Sup.
2 Davis v. Concordia, 9 How. (U. Ct. Rep. 743, 45 L. ed. 1041; Downes
S.) 280, 13 L. ed. 138, per Wayne, J. v. Bidwell, 182 U. S. 244, 247, 21 Sup.
3 Knox, Attorney General, October Ct. Rep. 770, 45 L. ed. 1088; Dooley
17, 1901, 551, 558, citing United States v. United States, 182 U. S. 222, 230,
v. Arredondo, 6 Pet. 691, 8 L. ed. 547; 21 Sup. Ct. Rep. 762, 45 L. ed. 1074;
Haver v. Yaker, 9 Wall. 32, 19 L. ed. Halleck Int. Law, 815.
§§ 87, 88] TAKING EFFECT AND TERMINATION OF TREATIES. 88
§ 87. Sovereignty transferred at date of treaty. — As a treaty
transfers sovereignty on the day of its date, the grant of a per-
petual franchise by the Spanish governor of Louisiana after the
treaty by which Spain ceded Louisiana to France, is void.4 Unless
a different time is fixed by the governments making the treaty or
must be adopted to fulfill their manifest intention, a treaty will
take effect from its date irrespective of its ratification.5 If a
treaty is made dependent on legislative action, it does not become
operative until such action.6 A provision contained in a treaty
with an Indian tribe, that it should be obligatory as soon as it
should be ratified by the President and Senate, will postpone its
taking effect until signed by the President, though it had been
previously ratified by the Senate and accepted by the Indians.7
§ 88. Postponing operation until approval of Congress.- —
Where an amendment is added to a treaty, by the Senate, de-
claring that it shall not take effect until approved by Congress, th*
date when the treaty will become effective will be fixed, not by a pro-
vision contained in it that it shall become operative within a
certain time after exchange of ratifications, but will depend upon
the passage of an act by Congress.8
The treaty with Cuba contained a clause that: "The present
convention shall be ratified by the appropriate authorities of
the respective countries, and the ratifications shall be exchanged
at Washington, District of Columbia, United States of America,
as soon as may be before the thirty-first day of January, 1903,
and the convention shall go into effect on the tenth day after the
exchange of ratifications, and shall continue in force for the term
of five (5) years from the date of going into effect, and from
year to year thereafter, until the expiration of one year from
the day when either of the contracting parties shall give notice
4 Davis v. Concordia, 9 How. (50 ed. 571; Turner v. Baptist Union, 5
U. S.) 280, 13 L. ed. 138. McLean, 344 Fed. Gas. No. 14,250;
5 In re Metzger, Fed. Gas. No. Bartram v. Eobertson, 15 Fed. 212, 21
9511. Blatchf. 211.
6 Foster v. Neilson, 2 Pet. 253, 7 7 Shepard v. Northwestern Life
L. ed. 415; United States v. Perche- Ins. Co., 40 Fed. 341.
man, 7 -fet. 51, 8 L. ed. 604; Garcia 8 United States v. American Sugar
v. Lee, 12 Pet. 511, 9 L. ed. 1176; Kenning Co., 202 U. S. 563, 26 Sup.
Haver v. Yaker, 9 Wall. 32, 19 L. Ct. Eep. 717, 50 L. ed. 1149.
89 POSTPONING OPERATION UNTIL APPROVAL OF CONGRESS. [§ 88
to the other of its intention to terminate the same."9 The
Senate added this amendment: "This convention shall not take
effect until the same shall have been approved by the Congress."
Ratifications were exchanged on March 31, 1903, at which time
Congress was not in session, but Congress was convened in spe-
cial session November 9, 1903, and on December 17, 1903, passed
an act to carry into effect the convention, which provided in
section 1: "That whenever the President of the United States
shall receive satisfactory evidence that the Republic of Cuba has
made provision to give full effect to the articles of convention
between the United States and the Republic of Cuba, signed on
the eleventh day of December, in the year nineteen hundred and
two, he is hereby authorized to issue his proclamation, declaring
that he has received such evidence, and, thereupon, on the tenth
day after exchange of ratifications of such convention between the
United States and the Republic of Cuba, and so long as the said
convention shall remain in forcet all articles of merchandise being
the product of the soil or industry of the Republic of Cuba, which
are now imported into the United States free of duty, and all
other articles of merchandise being the product of the soil or
industry of the Republic of Cuba imported into the United States
shall be admitted at a reduction of twenty per centum of the rates
of duty thereon, as provided by the tariff act of the United States
approved July twenty-fourth, eighteen hundred and ninety-seven,
or as may be provided by any tariff law of the United States
subsequently enacted. The rates of duty herein granted by the
United States to the Republic of Cuba, are and shall continue,
during the term of said convention, preferential in respect to all
like imports from other countries; Provided, That, while said
convention is in force, no sugar imported from the Republic of
Cuba, shall be admitted into the United States at a reduction
of duty greater than twenty per centum of the rates of duty
thereon, as provided by the tariff act of the United States ap-
proved July twenty-fourth, eighteen hundred and ninety-seven,
and no sugar the product of any other foreign country shall be
admitted by treaty or convention into the United States while
this convention is in force at a lower rate of duty than that pro-
vided by the tariff act of the United States approved July twenty-
fourth, eighteen hundred and ninety-seven; And provided, fur-
9 33 Stats, at Large, 2136.
§§ 89, 90] TAKING EFFECT AND TERMINATION OF TREATIES. 90
ther, that nothing herein contained shall be held or construed
as an admission on the part of the House of Representatives that
customs duties can be changed otherwise than by an act of Con-
gress originating in said House."
The President issued his proclamation on the day of the pas-
sage of this act, setting forth the treaty and the act of Con-
gress, and declaring that he had received satisfactory evidence
that the Eepublic of Cuba had made provision to give full ef-
fect to the articles of the convention, and declaring and proclaim-
ing "the said convention as amended by the Senate of the United
States to be in effect on the tenth day from the date of this, my
proclamation. ' ' 10
§ 89. Question before the court. — The question before the
court was whether a certain quantity of sugar imported be-
tween the 12th of June and the 28th of September, 1903,
should be charged with full duties under the tariff act, or was en-
titled to a reduction of twenty per cent prescribed by that act,
under the treaty and the act of Congress. The solution of the
question depended upon the date when the treaty became effec-
tive. The court held that the reduction of twenty per cent in
the duties imposed by the tariff act did not become operative
until December 27, 1903, the date proclaimed by the President of
the United States and the President of the Cuban republic for
the commencement of the operation of the treaty.11
§ 90. Reasoning of the court. — In the lower court the view
taken was that owing to the language of the treaty as to the
time at which it should take effect, it was intended to have a
retroactive operation, and was intended to relate to merchandise
imported from Cuba ten days or more after the exchange of rati-
fications.12 The supreme court of the United States said, how-
ever, that between the treaty and the amendment there was an
emphatic difference. "The date at which the instrument should
go into effect was changed. It cannot be said that the treaty
10 33 Stats, at Large, 2136. States, 202 U. S. 580, 26 Sup. Ct.
11 United States v. American Sugar Eep. 720, 50 L. ed. 1153.
Refining Co., 202 U. S. 563, 26 Sup. 12 American Sugar Eefining Co. v.
Ct. Rep. 717, 50 L. ed. 1149 ; Frank- United States, 136 Fed. 508.
T.n Sugar Refining Co. v. United
91 REASONING OF THE COURT. [§ 90
provision related to time and the amendment to sanction merely,
and adopted the time of the treaty. To do this would be to in-
terpret the words of the treaty one way and the same words in
the amendment another way. We start, then, with the proposi-
tion that not the treaty, but the act of Congress, was to fix the
date that the treaty should take effect. What date Congress
fixed is the question to be considered. It was certainly compe-
tent for Congress (with the consent of Cuba) to have given the
treaty retrospective, immediate, or prospective operation." The
court said that there was a presumption against retrospective
operation, and that words in a statute should not be so con-
strued unless the intention of the legislature cannot be other-
wise satisfied.13 The court admitted that there were words in
the act of Congress which, if not in themselves, yet in connec-
tion with events, might be said to look to a retrospective opera-
tion. The words of the act of Congress refer manifestly to an
event to occur, which had, apparently, already occurred, and it
was contended that upon the happening of such event, the treaty
by its own terms and by the act of Congress took effect. To this
contention the government replied that as Congress was not in
session at the time, it was ignorant of the fact that ratifications
had been exchanged, and framed its legislation on the view that
some further action was required on the part of Cuba. The
court on this subject said: "If we may not accept the explana-
tion of Congress' ignorance, it is not unreasonable to suppose
that Congress considered it was still open to Cuba to accept or
reject the treaty, and to make sure of her acceptance before the
treaty should go into effect in the United States. This view
satisfies completely the text of the act. We cannot suppose that,
if Congress intended to give retrospective operation to the act,
it would have used the words that expressed the contrary. The
day at which the treaty should operate was important, and would
necessarily be ever present in mind, and it was of easy expres-
sion. Future time and past time are directly opposite, and by no
inadvertence or intention can we believe or suppose that Con-
gress, having in mind and purpose the distinction between the
past and the future, should use language that expressed the one
while it meant to provide for the other. ' '
13 Citing United States v. Burr, 159 U. S. 78, 15 Sup. Ct. Eep. 1002,
40 L. ed. 82.
§ 91] TAKING EFFECT AND TERMINATION OF TREATIES. 92
The court also adverted to what it declared was another im-
portant fact: "The treaty was a reciprocal arrangement and in-
tended to go into effect coincidently in the United States and
Cuba. The two nations provided for this. On the day the Presi-
dent approved the act of Congress, he issued his proclamation
declaring that the treaty should go into effect on the 27th day of
December. On the 17th day of December, the President of Cuba
also issued his proclamation, stating that Congress had approved
the treaty in accordance with the requirements of article II, and
declaring that the treaty should take effect in Cuba on the day
named on the proclamation of the President of the United
States — December 27, 1903. This coincident operation is of the
very essence of the convention. It would indeed be anomalous
if a treaty which provided for reciprocal concessions should be
in operation in one nation eight months before it was in opera-
tion in the other. And this is not adequately answered as ap-
pellee answers it, by saying that the President of Cuba and the
President of the United States were both mistaken as to the date
of the operation of the treaty, and their mistake could not af-
fect the rights of importers. Certainly not if a mistake could be
conceded. But the action of the Presidents is proof against the
existence of mistakes. It shows the understanding of the Execu-
tives of the two countries, and affords confirmation of the view
that Congress contemplated action subsequent to its legislation
to put the treaty into effect. ' ' 14
§ 91. Effect on individual rights. — But where individual rights
are concerned, the rule is that a treaty does not take effect until
the exchange of ratifications.15 Upon the cession by Spain of the
island of Porto Eico, the Constitution at once extended over it,
conferring among other rights that of trial by jury in criminal
prosecutions. But as to private rights, the treaty became effec-
tive only from the time of the exchange of ratifications, and,
therefore, a military tribunal of the United States, established
14 United States v. American Sugar Lessee of Hylton v. Brown, 1 Wash.
Kefining Co., 202 U. S. 563, 26 Sup. C. C. 343, Fed. Gas. No. 6982; Haver
Ct. Eep. 717, 50 L. ed. 1149. v. Yaker, 9 Wall. 32, 19 L. ed. 571;
15 Davis' Notes, U. S. Treaty, Vol. United States v. Arredondo, 6 Pet.
1776-1887, 1228, citing Davis v. 691, 8 L. ed. 547. See, also, Bush v.
Concordia, 9 How. 280, 13 L. ed. 138 ; United States, 29 Ct. of Cl. 144.
RETROACTIVE EFFECT. [§§ 92, 93
luring the occupancy of the island by the military forces of the
United States as conquered territory, had jurisdiction in March,
1899, to try offenses.16 As to the collection of duties on mer-
chandise, a treaty takes effect from the exchange of ratifica-
tions.17
§ 92. Retroactive effect. — Where rights of succession to realty
are given to the subjects of a foreign sovereign by a treaty, it is
not retroactive so as to affect the succession of a person dying
before the treaty.18 But conventions of extradition, where no ex-
press limitation is expressed, apply to offenses committed prior to
the conclusion of such conventions.19
The constitutional provision against ex post facto laws is not
applicable.20 It may be stated as a rule that as to individual
rights, the ratification of a treaty must be deemed its date.21
§ 93. Authority of courts. — Whether a treaty was properly ex-
ecuted or whether it was obtained by undue influence are not
matters into which courts can inquire.22 Courts have no author-
ity to examine or decide whether the person ratifying a treaty
on behalf of a foreign nation had the authority to enter into the
stipulations contained in the treaty. The President and Senate
make this inquiry when entering into the treaty.23 Thus it was
admitted that certain grants of land were annulled and declared
void by the ratification, by the King of Spain, of the treaty by
which Florida was ceded to the United States. But whether, ac-
cording to the constitution of Spain, the king had power to an-
nul these grants is a political, and not a judicial, question, and it
was decided when the treaty was made and ratified.24
The court will refuse to pass upon the power of Indian tribes
to enter into a treaty.25 Where a treaty with an Indian tribe
16 Ex parte Ortz, 100 Fed. 955. 21 Yeaker's Heirs v. Yeaker, 4 Met.
17 Doolej v. United States, 182 (61 Ky.), 33, 81 Am. Dec. 530.
U. S. 222, 21 Sup. Ct. Eep. 762, 45 L. a Leighton v. United States, 29
ed. 1074. Ct. of Cl. 288.
18 Prevost v. Greenaux, 19 How. 1, * Doe ex dem. Clark v. Braden, 16
15 L. ed. 572. How. (57 U. S.) 635, 14 L. ed. 1090.
18 1 Moore on Extradition, 99. 2* Doe ex dem. Clark v. Braden, 16
20 In re De Giacomo, 12 Blatchf. How. (57 U. S.) 635, 14 L. ed. 1090.
391, Fed. Cas. No. 3747. ^ in re Eace Horse, 70 Fed. 607.
§ 94] TAKING EFFECT AND TERMINATION OF TREATIES. 94
prescribes a rule by which private rights can be determined,
courts will give effect to such rule.26
§ 94. Construction of treaty province of courts. — But it is
the peculiar province of the courts to construe a treaty, and ex-
cept in purely political cases, Congress possesses no constitutional
power to settle rights arising from a treaty or to affect titles al-
ready granted by the treaty itself.27
After the passage of a resolution by the Senate that it has
approved a treaty with Indians and the issuance by the Presi-
dent of a proclamation accepting, ratifying and confirming the
treaty, the courts cannot go into the question as to whether the
treaty was in fact approved by the Indians.28
If the United States, as a sovereign power, chooses to disre-
gard the provisions of a treaty, the supreme court of the United
States has no power to set itself up as an instrumentality for
enforcing its provisions.29 Where it was contended that an act
of Congress was in conflict with the treaty with Mexico, Mr.
Justice Miller said that this was "a matter in which the court
is bound to follow the statutory enactments of its own govern-
ment. If the treaty was violated by this general statute enacted
for the purpose of ascertaining the validity of claims derived
from the Mexican government, it was a matter of international
concern, which the two states must determine by treaty, or by
such other means as enables one state to enforce upon another
the obligations of a treaty. This court, in a class of cases like
the present, has no power to set itself up as the instrumentality
for enforcing the provisions of a treaty with a foreign nation
which the government of the United States, as a sovereign power,
chooses to disregard."30
26 Leighton v. United States, 29 Ct. 238, 9 Sup. Ct. Eep. 525, 32 L. ed.
of Cl. 288. 928.
a Jones v. Meehan, 175 U. S. 1, 32, 30 Botiller v. Dominguez, 130 U. S.
20 Sup. Ct. Eep. 1, 44 L. ed. 49; 238, 9 Sup. Ct. Rep. 525, 32 L. ed.
Wilson v. Wall, 6 Wall. 83, 18 L. ed. 928. See, also, The Cherokee To-
727; Eeiehart v. Felps, 6 Wall. 160, bacco, 78 U. S. (11 Wall.) 616, 20 L.
18 L. ed. 849; Smith v. Stevens, 10 ed/227; Taylor v. Morton, 2 Curt.
Wall. 321, 19 L. ed. 933; Holden v. 454, Fed. Cas. No. 13,799; Head
Joy, 17 Wall. 211, 21 L. ed. 523. Money Cases, 112 U. JS. 580, 5 Sup.
28 New York Indians v. United Ct. Eep. 247, 28 L. ed. 798; Whit-
States, 30 Ct. of Cl. 413. 'uey v. Eobertson, 124 U. S. 190, 8
29 Botiller v. Dominguez, 130 U. S. Sup. Ct. Eep. 456, 31 L. ed. 386.
95 TERMINATION OP TREATIES. [§§ 95, 96
§ 95. Termination of treaties. — A treaty may be modified or
abrogated by mutual consent; when terms upon which its con-
tinuance is based cease to exist; by refusal of either party to
perform a material stipulation; by election to withdraw by a
party having the option to elect ; by the physical or moral impos-
sibility of performance; by the discontinuance of a state of
things forming the basis of the treaty or one of its implied con-
ditions.31
§ 96. Question a political one.— After Prussia became incor-
porated into the German Empire the treaty entered into between
the United States and Prussia had been repeatedly recognized
by both governments as still in force. Upon habeas corpus pro-
ceedings to prevent the extradition of a fugitive from justice
who is held under extradition proceedings under that treaty, the
existence of the treaty cannot be questioned. The question is a
political one, and not within the power of the judicial depart-
ment to determine, and whatever determination may be made by
the political department must be accepted by the courts.32 Nor
is it necessary to consider whether extinguished treaties can
be renewed by tacit consent, because in determining whether a
treaty has ever been terminated the action taken by the govern-
ment in respect to it must be regarded of controlling importance.33
In a case in which the continuance of the extradition treaty
with Bavaria was questioned, Mr. Justice Blatchford said: "It
is difficult to see how such a treaty as that between Bavaria
and the United States can be abrogated by the action of Bavaria
alone without the consent of the United States. Where a treaty
is violated by one of the contracting parties, it rests alone with
the injured party to pronounce it broken, the treaty being in
such case not absolutely void, but voidable, at the election of the
81 Wharton Int. L. D. 11, 58; Whar- charged with being a fugitive from
ton Com. Am. Law, sec. 161. its justice should be permitted to call
b2 Terlinden v. Ames, 184 U. S. on the courts of this country to ad-
270, 22 Sup. Ct. Eep. 484, 46 L. ed. judicate the correctness of the con-
534. elusions of the empire as to its
33 Terlinden v. Ames, 184 U. S. powers and the powers of its mem-
270, 22 Sup. Ct. Eep. 484, 46 L. ed. bers, and especially as the executive
534. Mr. Chief Justice Fuller said: department of our government has
"It is out of the question that a accepted these conclusions and pro-
citizen of one of the German states ceeded accordingly. "
§ 97] TAKING EFFECT AND TERMINATION OF TREATIES. 96
injured party, who may waive or remit the infraction committed,
or may demand a just satisfaction, the treaty remaining obliga-
tory if he chooses not to come to a rupture."34
§ 97. Violation of treaty by one nation. — If one of the con-
tracting powers continues to violate a provision of a treaty, the
other is justified in regarding the provision as suspended tem-
porarily.35 Mr. Madison said that, as he understood the Con-
stitution, treaties are supreme over the laws and constitutions of the
particular states, and like a subsequent law of the United States
over pre-existing laws of the United States, if the treaty be
made within the prerogative of making treaties, which he
said he had no doubt had certain limits, but, he added,
"that the contracting powers can annul the treaty, cannot,
I presume, be questioned, the same authority, precisely, being
exercised in annulling as in making a treaty. That a breach
on one side (even of a single article, each being considered
as a condition of every other article) discharges the other,
is as little questionable ; but with this reservation, that the other
side is at liberty to take advantage or not of the breach, as dis-
solving the treaty. Hence I infer that the treaty with Great
Britain, which has not been annulled by mutual consent, must be
regarded as in full force and effect by all on whom its execution
in the United States depends, until it shall be declared, by the
party to whom a right has accrued by the breach of the other
party to declare, that advantage is taken of the breach, and
the treaty is annulled accordingly. In case it should be advisable
to take advantage of the adverse breach, a question may perhaps
be started, whether the power vested by the Constitution with
respect to treaties in the President and Senate makes them the
competent judges, or whether, as the treaty is a law the whole
legislature are to judge of its annulment, or whether, in case
the President and Senate be competent in ordinary treaties, the
legislative authority be requisite to annul a treaty of peace, as
being equivalent to a declaration of war, to which that authority
alone, by our Constitution, is competent. ' ' 36
34 In re Thomas, 12 Blatchf. 370, 85 Mr. Bayard, Secretary of State,
Fed. Gas. No. 13,887. See, also, Doe to Mr. Fairchild, Secretary of the
v. Braden, 16 How. (U. S.) 635, 14 Treasury, February 6, 1888, For. Rel.
L. ed. 1090; Foster v. Neilson, 2 Pet. 1888, I, 124.
253, 7 L. ed. 415. M 1 Madison's Works, 523, 524.
97 TERMINATION OF TREATIES BY NOTICE. [§§ 98, 99
§ 98. Termination of treaties by notice.— A provision is some-
times inserted in a treaty that it may be terminated by notice
given by one of the parties to the other. In 1798 a statute
was passed by Congress reciting that the treaty between the
United States and France had been repeatedly violated on the
part of the French government, and declaring the United States
were exonerated in consequence from the stipulation of the
treaty.37 After the passage of this act a French vessel captured
as lawful prize, on board of an American ship, a cargo of goods
owned by a subject of Great Britain, but insured by citizens of
the United States. The United States received an indemnity
from France for claims of spoliation, and an assignee of the
captured cargo attempted to recover the value of the goods from
the United States out of this indemnity. It was held that after
the treaties between France and the United States had become
abrogated, .the goods belonging to an enemy of France found on
an American vessel were not entitled to protection, and that as
no right existed in the United States to demand indemnity from
France by reason of such seizure, the claimant could not obtain
satisfaction out of the general indemnity funds which France
paid to the United States.38
§ 99. Subject matter covered by later treaty. — Where a later
treaty covers the whole subject matter of a former treaty, it will
repeal by implication the former treaty.39 Where a revocation
of a treaty is made upon the assumption and declaration that all
its provisions were incorporated into the later treaty, the revoca-
tion must be confined to those provisions which were so incor-
porated, and the treaty will continue to be in force as to the pro-
visions not incorporated.40
37 1 Stats. 578. 5 App. Div. 621, as to later treaty
38 The William, 23 Ct. of Cl. 201. abrogating treaty with Wiirtemberg.
3a La Kepublique Francaise v. 40 Ross v. Mclntyre, 140 U. 8. 453,
Schultz, 57 Fed. 37. See, also, In re 11 Sup. Ct. Eep. 897, 35 L. ed. 581.
FtrobePs Estate, 39 N. Y. Supp. 169,
Treaties — 7
100] FEDERAL QUESTION UNDER TREATY. 98
CHAPTER VI.
FEDERAL QUESTION UNDER TREATY.
§ 100. Federal question.
§ 101. Fraudulent claim.
§ 102. Both parties claiming under grant.
§ 103. Treaty right must be set up.
§ 104. When to be set up.
§ 105. Claim under treaty not a frivolous question.
§ 106. Title in third person under treaty.
§ 107. Outstanding title in assignee in bankruptcy.
§ 108. Construction of state statutes.
§ 109. Protection of inhabitants.
§ 110. Award under claims commission.
§ 111. Diverse citizenship sole ground of jurisdiction at commencement of
suit.
§ 112. Treaty introduced as part of history of case.
§ 113. Definite issue as to claim of right.
§ 114. Manner in which cause of action arises to be stated.
§ 100. Federal question. — Under the Constitution, the judicial
power of the United States extends to all cases in law or equity aris-
ing under treaties made, or which shall be made, under their au-
thority.1 The supreme court of the United States has appellate
jurisdiction over a judgment or decree in any suit in the highest
court of a state in which the validity of a treaty is drawn in
question, and if the decision is against its validity, or the title
specially asserted by either party to the suit, under the treaty,
the court is not confined to the abstract construction of the treaty,
but has jurisdiction to determine that title and decide as to its
legal validity.2 No federal question, however, is presented where
the highest court of a state adjudicated that certain proceedings
1 Const., art. Ill, sec. 2, cl. 2. the title, before the court can con-
2 Martin v. Hunter's Lessee, 1 strue the treaty in reference to that
Wheat. 304, 4 L. ed. 97. "How, in- title. If the court below should de-
deed, can it be possible, ' ' said Mr. cide that the title was bad, and, there-
Justice Story in the case just cited, fore, not protected by the treaty,
"to decree whether a title be within must not this court have the power to
the protection of a treaty until it is decide the title to be good, and, there-
ascertained what the title is and fore, protected by the treaty? Is not
whether it have a legal validity? the treaty, in both instances, equally
From the very necessity of the case, construed, and the title of the party,
there must be a preliminary inquiry in reference to the treaty, equally as-
into the existence and structure of certained and decided?"
99 FRAUDULENT CLAIM. [§§ 101, 102
before a Mexican tribunal, prior to the treaty of Guadalupe
Hidalgo, were not sufficient to affect the partition of a tract of
land previously granted by the Mexican government, and where
the grant was confirmed under the act of Congress. That treaty
protected all existing rights within the ceded territory, ''but it
neither created the rights nor defined them. Their existence was
not made to depend on the Constitution, laws, or treaties of the
United States. There was nothing done but to provide that if
they did in fact exist under the Mexican law, or by reason of
the action of Mexican authorities, they should be protected.
Neither was any provision made as to the way of determining
their existence. All that was left by implication to the ordinary
judicial tribunals. Any court, whether state or national, having
jurisdiction of the parties, and of the subject matter of the ac-
tion, was free to act in the premises."3
§ 101. Fraudulent claim. — No protection was extended by the
treaty to a fraudulent claim, and proceedings under the statute
to determine any such question between private persons, none of
whom claimed under the United States by title subsequent, but
who founded their claims upon patents based upon Mexican
grants. Like the ordinary case of a contest in respect to a forged
or fraudulent deed, the state courts were open for the adjudica-
tion between individuals of the priority or validity of conflicting
titles under different grants from the same antecedent source,
and whether one of the two grants was forged or obtained by
fraud did not raise an issue involving the denial of a right or
title set up under the treaty or the statute.4
§ 102. Both parties claiming under grant. — A suit does not
arise under that treaty so as to confer jurisdiction on a federal
court, when both parties claim under Mexican grants, confirmed
and patented to the United States, conformably to the provisions
of the treaty protecting all existing property rights.5
3 Phillips v. Morina City Land & 4 Lynch v. De Bernal, 76 TJ. S. (9
W. Assn., 124 U. S. 605, 610, 8 Sup. Wall.) 315, 19 L. ed. 714.
Ct. Eep. 657, 31 L. ed. 588, per Mr. 5 Crystal Springs Land & Water
Chief Justice Waite. In Martin v. Co. v. City of Los Angeles, 76 Fed.
Hunter's Lessee, 1 Wheat. 304, 4 L. 148; Crystal Springs Land & W. Co.
ed. 97, the plaintiff claimed under a v. Los Angeles, 82 Fed. 117.
treaty, and the court decided against
the title thus asserted.
§ 103] FEDERAL QUESTION UNDER TREATY. 100
§ 103. Treaty right must be set up. — To enable the supreme
court of the United States to entertain jurisdiction to review a
judgment of a state court, denying a title, right, privilege or
immunity claimed under a treaty, it must appear on the record
that such title, right, privilege or immunity was specially set
up or claimed at the proper time, and in the proper manner, and
that the decision was against the right so asserted. If the de-
cision of the state court rests on an independent ground, not
involving a federal question and broad enough to maintain the
judgment, the supreme court of the United States will dismiss
a writ of error without considering any federal question that may
have been presented also.6 Thus, the fact that the judgment of
the state court was based upon the proposition that the grant
under which the plaintiff in error claimed title was simulated, is
a sufficient reason for sustaining the judgment, and it cannot be
said that a federal question is involved.7 To quote the lan-
guage of Mr. Justice Bradley: "The rules which govern the action
of this court in cases of this sort are well settled. Where it
appears by the record that the judgment of the state court might
have been based either upon a law which would raise a question
of repugnancy to the Constitution, laws, or treaties of the United
States, or upon some other independent ground, and it appears
that the court did, in fact, base its judgment on such independent
ground and not on the law raising the Federal question, this court
will not take jurisdiction of the case, even though it might think
the position of the state court an unsound one. But where it
does not appear on which of the two grounds the judgment was
based, then, if the independent ground on which it might have
been based was a good and valid one, sufficient of itself to sustain
the judgment, this court will not assume jurisdiction of the case ;
but if such independent ground was not a good and valid one, it
will be presumed that the state court based its judgment on the
law raising the Federal question, and this court will then take
jurisdiction." 8 Or, as it has been expressed in other words, that
where an action is pending in a state court, and "two grounds
6 California Powder Works v. > 7 California Powder Works v.
Davis, 151 U. S. 393, 14 Sup. Ct. Davis, 151 U. S. 395, 14 Sup. Ct.
Eep. 352, 38 L. ed. 206; Eustis v. Eep. 352, 38 L. ed. 206.
Bolle, 150 U. S. 361, 14 Sup. Ct. Eep. 8 In Klinger v. Missouri, 13 Wall.
131, 37 L. ed. 1111. (80 U. S.) 257, 20 L. ed. 635.
101 WHEN TO BE SET UP. [§ 104
of defense are interposed, each broad enough to defeat a recov-
ery, and only one of them involves a Federal question, and judg-
ment passes for the defendant, the record must show, in order
to justify a writ of error from this court, that the judgment was
rested upon the disposition of the Federal question; and if this
does not affirmatively appear, the writ of error will be dismissed,
unless the defense which does not involve a Federal question is
so palpably unfounded that it cannot be presumed to have been
entertained by the state court."9
§ 104. When to be set up.— The right claimed as arising from
a treaty must be claimed or set up prior to the petition for a
writ of error, as this forms no part of the record of the lower
court;10 and the state court must have actually decided the fed-
eral question, or the judgment must necessarily involve a decision
of it ;n for the federal question will not be considered if the de-
cision of the state court on some other than a federal ground
is sufficiently comprehensive.12 The supreme court is without
jurisdiction unless it appear in the record that a federal ques-
tion was raised and decided in the state court.13
9 Johnson v. Risk, 137 U. S. 300, 11 and no finding upon any such question.
Sup. Ct. Rep. Ill, 34 L. ed. 683. Thus there is an entire absence in this
10 Clark v. Commonwealth of Penn- whole record of any fact showing that
sylvania, 128 U. S. 395, 9 Sup. Ct. the supreme court of Illinois or either
Rep. 113, 32 L. ed. 487. of the lower courts decided any Fed-
11 Fowler v. Lamson, 164 U. S. eral question whatever. The assign-
255, 17 Sup. Ct. Rep. 113, 41 L. ed. ment of errors alleged to have been
425. made by the Illinois supreme court
12 Chappell Chemical Co. v. Sulphur is unavailable for the purpose of
Mines Co., 172 U. S. 471, 19 Sup. Ct. showing any Federal question de-
Rep. 267, 43 L. ecu 517; Dower v. cided, where the record itself does
Richards, 151 U. S. 666, 14 Sup. Ct. not show that any such question was
Rep. 455, 38 L. ed. 308; Missouri Pac. passed upon by the state court. Mis-
Ry. v. Fitzgerald, 160 U. S. 576, 16 souri P. R. Co. v. Fitzgerald, 160 U.
Sup. Ct. Rep. 393, 40 L. ed. 540. S. 556-575, 16 Sup. Ct. Rep. 393, 40
13 Fowler v. Lamson, 164 U. S. 225, L. ed. 536-540. Where a case is
17 Sup. Ct. Rep. 113, 41 L. ed. 425. brought to this court on error or ap-
Said the court: "It will be seen that peal from a judgment of a state
there are no pleadings on the record; court unless it appear in the record
no evidence is returned; no excep- that a Federal question was raised in
tions to any decision of the court are the state court before the entry of
to be found; no request to the court final judgment in the case, this court
to find upon any Federal question; is without jurisdiction. Simmerman
§ 105] FEDERAL QUESTION UNDER TREATY. 102
§ 105. Claim under treaty not a frivolous question. — A
writ of error will not be dismissed unless the federal question
presented is frivolous. An action in ejectment was brought
by the city of Mobile in a state court to recover a portion of
the shore and bed of the Mobile river in the city of Mobile be-
tween high-water mark and the channel line. The defendant
offered in evidence certain documents, legislative and execu-
tive, of the Congress of the United States, in relation to the
public lands, from the first session of the first Congress to
the first session of the twenty-third Congress, and especially
that relating to the claim of one Bernoudy, who claimed under
a Spanish grant made in 1792, together with evidence of the
report of the land commissioner, in favor of his claim and a
patent of the United States to the assignees of Bernoudy, re-
citing that the claim of Bernoudy was affirmed, had been sur-
veyed, and was by such title granted to the assignees. Defend-
ant also offered an unbroken series of deeds from these assignees
to it as well as proof of adverse possession of the lands under
color of right. The lower court excluded the evidence, and its
action was affirmed by the supreme court of the state.14 The
case was taken to the supreme court of the United States by a
writ of error, and a motion was made in that court to dismiss
the writ for the want of a federal question. But the court de-
cided that inasmuch as the defendant's title depended upon a
Spanish grant claimed to have been perfected under a treaty,
and a patent of the United States in alleged confirmation of such
claim, the motion could not be sustained, unless upon the theory
that the federal questions presented were frivolous and unde-
v. Nebraska, 116 U. S. 54, 6 Sup. Ct. dered could not have been given with-
Eep. 333, 29 L. ed. 535. It has also out deciding it. Eustis v. Bolles, 150
been frequently decided that, to give U. S. 361, 14 Sup. Ct. Eep. 131, 37 L.
this court jurisdiction on writ of error ed. 1111 ; California Powder Works
to a state court, it must appear af- v. Davis, 151 U. S. 389-393, 14 Sup.
firmatively, not only that a Federal Ct. Eep. 352, 38 L. ed. 206, 207; Mis-
question was presented for decision by souri P. E. Co. v. Fitzgerald, 160 U.
the state court, but that its decision S. 556-576, 16 Sup. Ct. Eep. 393, 40
was necessary to the determination of L. ed. 536-540. ' '
the cause, and that it was decided ad- 14 Mobile Transp. Co. v. City of Mo-
versely to the party claiming a right bile, 128 Ala. 335, 86 Am. St. Eep.
under the Federal laws or Constitu- 143, 30 South. 645, 64 L. E. A. 333.
tion, or that the judgment as ren-
103 TITLE IN THIRD PERSON UNDER TREATY. [§§ 106, 107
serving of further notice, and the court was of the opinion that
they could not be so considered.15
§ 106. Title in third person under treaty. — The supreme court
of the United States has no jurisdiction in actions of ejectment
where the defence is an outstanding title alleged to be protected by
treaty. At an early day the court declared that the words, "a
case arising under a treaty," in the judiciary act must be restrained
by the Constitution. In an action of ejectment between two
citizens of Maryland the defendant set up an outstanding title
in a British subject, which he claimed was protected by the treaty,
and therefore the title was not in the plaintiff. The highest court
of Maryland decided against this claim, but it was held that it
was not a case in which a writ of error would lie to the supreme
court of the United States.16 The principle announced in the
case cited in the note has been followed in a number of others.17
While the court has jurisdiction to determine conflicting rights
under an Indian treaty, it cannot go behind the treaty to decide
matters settled by the treaty.18
§ 107. Outstanding title in assignee in bankruptcy. — So, on
similar grounds, jurisdiction will not be entertained when an
outstanding title in a federal assignee in bankruptcy who is not
a party to the suit is set up as a defense against the officers of a
state court. 19 It was said by Mr. Chief Justice Taney in a case
in which the defendant set up an outstanding title in a third per-
son under an Indian treaty: "It is true, the title set up in this
case was claimed under a treaty; but, to give jurisdiction to this
court, the party must claim the right for himself, and not for a
third person in whose title he has no interest. ' ' 20
15 Mobile Transportation Co. v. Mo- 19 Long v. Converse, 91 U. S. 113,
bile, 187 U. S. 479, 23 Sup. Ct. Kep. 23 L. ed. 233. And see other cases
170, 47 L. ed. 266. by analogy, Connor v. Scott, 4 Dill.
16 Owings v. Norwood's Lessee, 5 246, Fed. Gas. No. 3119; Giles v.
Cranch, 344, 3 L. ed. 120. Little, 134 U. S. 650, 10 Sup. Ct. Kep.
17 Fisher v. Cockerell, 5 Pet. 257, 8 623, 33 L. ed. 1064; Miller v. Lan-
L. ed. 117; Henderson v. Tennessee, caster Bank, 106 U. S. 544, 1 Sup. Ct.
10 How. 323, 13 L. ed. 439; Verden v. Eep. 537, 27 L. ed. 290; Wynne v.
Coleman, 1 Black, 474, 17 L. ed. 162. Morris, 20 How. 5, 15 L. ed. 801.
18 United States v. Old Settlers, 148 20 Henderson v. State of Tennessee,
U. S. 469, 13 Sup. Ct. Eep. 667, 37 10 How. (U. S.) 311, 13 L. ed. 434.
L. ed. 525.
§ 108]
FEDERAL QUESTION UNDER TREATY.
104
§ 108. Construction of state statutes. — Where the issue affect-
ing the title to land is whether a state statute of confiscation
accomplished a complete confiscation within the meaning of a
treaty, the construction of the treaty is sufficiently involved for
the purposes of federal jurisdiction.21
Under the treaty between the United States and Mexico pro-
viding for the adjustment of claims of American citizens against
Mexico, a sum of money was awarded to be paid to the members
of a company who had subscribed money, to fit out an expedition
against Mexico. Two parties claimed the proceeds of one of the
shares of the company, one as being the second permanent trustee
of the insolvent owner of the share, and the other as being the
assignee of the first permanent trustee. It was decided by the
court of appeals of Maryland that the second permanent trustee
did not take the claim under the insolvent laws of that state,
and this decision was held by the supreme court of the United
States not to be reviewable.22
21 Smith v. State of Maryland, 6
Cranch, 286, 3 L. ed. 225.
22 Williams, Trustee, v. Oliver, 12
How. 124, 13 L. ed. 921; Gill v. Oli-
ver's Executors, 11 How. 529, 13 L.
ed. 808. The court said, per Mr. Jus-
tice Nelson: "The decision of the
court below, therefore, not involving
the validity of the treaty, or award of
the commissioners, or lawfulness or
character of the fund, but simply the
right and title to the respective shares
claimed on it after the fund had been
paid over by the government, and
brought into court for distribution ac-
cording to the agreement of all con-
cerned, and which distribution de-
pended upon the laws of the state, a
majority of the court, taking this
view of the case, held, that there was
a want of jurisdiction, and dismissed
the writ of error, and that the de-
cision, whether right or wrong, could
not be the subject of review under the
25th section of the judiciary act, as
it involved no question, either directly
or by necessary intendment, arising
upon the treaty or award, or con-
nected with the validity of either, and
if this court were right in the view
thus taken of the case, there can be
no doubt of the correctness of the
conclusion arrived at. ' ' The court
referred to some cases sustaining this
principle but said : " It is not in-
tended, nor to be understood from
these cases, that the question, thus
material to the decision arrived at,
-nust be confined exclusively and spe-
cially to the conclusion of the treaty,
act of Congress, etc., in order to give
the jurisdiction, as this would be too
narrow a view of it. Points may arise
growing out of and connected with
the general question, and so blended
with it as not to be separated, and
therefore falling equally within the de-
cision contemplated by the 25th sec-
tion. The cases of Smith v. The
State of Maryland, 6 Cranch, 286, 3
L. ed. 225, and Martin v. Hunter's
Lessee, 1 Wheat. 304, 355, 4 L. ed.
97, afford illustrations of this prin-
ciple. "
105 PROTECTION OF INHABITANTS. [§§ 109, 110
§ 109. Protection of inhabitants. — A federal question is pre-
sented by a claim that a person who has settled within the terri-
tory of an Indian nation is on account of treaties made between
the Indians and the United States entitled to reside there free
from any legislative interference by the states.23
When Louisiana entered the Union its inhabitants were ad-
mitted to the enjoyment of all the rights, advantages and im-
munities of the citizens of the United States. Hence the supreme
court of the United States will not review a decision of the su-
preme court of Louisiana, on the ground that it was adverse to
a right secured by a stipulation in the treaty of cession of Louis-
iana for the protection of the inhabitants, in the free enjoyment
of their liberty, property or religion, because the operation of
this stipulation ceased on Louisiana's admission to the Union.24
A federal question is raised by the question whether proceedings
in extradition were violative of and forbidden by the treaty
from which extradition was secured.25
§ 110. Award under claims commission. — A convention was
concluded between the United States and France in January,
1880,26 by which it was stipulated that "all claims on the part
of corporations, companies, or private individuals, citizens of the
United States, upon the government of France, arising out of acts
committed against the persons or property of citizens of the United
States, not in the service of the enemies of France or voluntarily
giving aid and comfort to the same, by the French civil or mili-
tary authorities, upon the high seas or within the territory of
France, its colonies and dependencies, during the late war be-
tween France and Mexico, or during the war between France and
Germany, and the subsequent civil disturbances known as the
'Insurrection of the Commune,' and, on the other hand, all claims
on the part of corporations, companies or private individuals,
citizens of France, arising out of acts committed against the
persons or property of citizens of France not in the service of
the enemies of the United States, or voluntarily giving aid and
comfort to the same, by the civil or military authorities of the
23 Worcester v. Georgia, 6 Pet. 515, 25 Ker v. Illinois, 119 U. S. 436, 7
8 L. ed. 483. Sup. Ct. Eep. 225, 30 L. ed. 421.
24 New Orleans v. De Armas, 9 Pet. 26 12 Stats. 673.
224, 9 L. ed. 109.
§ 111] FEDERAL QUESTION UNDER TREATY. 106
government of the United States, upon the high seas or within
the territorial jurisdiction of the United States during the period
comprised between the thirteenth day of April, 1861, and the
twentieth day of August, 1866," shall be referred to three com-
missioners, one of whom shall be named by the President of the
United States, and one by the French government, and the third
by His Majesty, the Emperor of Brazil. These commissioners
were obliged to examine and decide upon all claims of this
character presented to them. They allowed a claim to an ex-
ecutor, for injuries done to his testator's property; and on dis-
tribution a contest arose among the heirs, the plaintiffs in error,
claiming that they were entitled to the whole award, because
they were the only heirs and legatees who were French citizens
at the time the claim was presented and when the award was
rendered; and that no award under the treaty could have
been made in favor of the other heirs and legatees, as they were
citizens of the United States at that time ; and that no executor
or person representing the succession of a person who was not
a French citizen at the time the damage was suffered and award
rendered could have any standing before the commission.
The lower state court sustained the position of plaintiffs in
error, and decreed that the entire fund should go to them, one-
half to each. The supreme court of Louisiana reversed this de-
cree, and gave judgment to the effect that the entire fund in
the possession of the executor should be distributed proportion-
ally among all the heirs and legatees, both French and American
citizens. As the decision of the supreme court of Louisiana was
thus against the right asserted by the French citizens as heirs,
founded upon this treaty, the supreme court of the United States
held that a question was presented within the jurisdiction of
the court.27
§ 111. Diverse citizenship sole ground of jurisdiction at com-
mencement of suit. — If, when a suit is commenced in a circuit
court of the United States, the jurisdiction is placed, at the com-
mencement of the suit, solely upon the ground of diverse citizen-
ship, the judgment of the circuit court of appeals is final, al-
though subsequently other questions are raised. The supreme
court of the United States will, in such a case, dismiss a writ of
27 Burthe v. Denis, 133 U. S. 514, 10 Sup. Ct. Rep. 335, 33 L. ed. 768.
107 TREATY INTRODUCED AS PART OF HISTORY OP CASE. [§§ 112, 113
error, should the case be brought to that court, from the circuit
court of appeals.28
§ 112. Treaty introduced as part of history of case. — A writ
of error cannot be maintained where a treaty and award are
introduced merely as a part of the history of the case. This
does not involve in any way the validity of the treaty or its
construction. An appeal or writ of error is allowed to the
supreme court of the United States by the fifth section of the
act of March 3, 1891, "in any case, in which the constitutionality
of any law of the United States, or the validity or construction of
any treaty made under its authority, is drawn in question. ' ' But
if it is not "suggested in the summons and statement of claim
that the validity or construction of any treaty made under the
authority of the United States was drawn in question, and no
such question was decided either by the circuit court or the
circuit court of appeals," and no question is raised by clear
and necessary intendment directly touching the validity or con-
struction of a treaty, a writ of error does not lie.29
§ 113. Definite issue as to claim of right. — The supreme court
of the United States has declared that to authorize it to revise
a judgment of the court below, a definite issue as to the claim
of right under the Constitution must be clearly deducible from
the record. "A case may be said to involve the construction or
application of the Constitution of the United States when a title,
right, privilege, or immunity is claimed under that instrument,
but a definite issue in respect of the possession of the right
must be distinctly deducible from the record before the judgment
of the court below can be revised on the ground of error in the
disposal of such a claim by its decision. And it is only when
28 Borgmeyer v. Idler, 159 U. S. rectly concerned, the court held that
408, 16 Sup. Ct. Eep. 34, 40 L. the ground of the judgment did not
ed. 199; Colorado Central Consoli- involve either the validity or con-
dated Min. Co. v. Turck, 150 U. S. struction of the treaty.- See, also,
138, 14 Sup. Ct. Eep. 35, 37 L. ed. Gill v. Oliver, 52 U. S. (11 How.)
1030. 529, 13 L. ed. 799 ; Williams v. Oliver,
29 Borgmeyer v. Idler, 159 U. S. 53 U. S. (12 How.) Ill, 13 L. ed.
408, 16 Sup. Ct. Eep. 34, 40 L. ed. 199. 915 ; Baltimore & P. E. Co. v. Hop-
In that case, in which treaties with kins, 130 U. S. 225, 9 Sup. Ct. Eep.
the Eepublic of Venezuela were indi- 503, 32 L. ed. 913.
114]
FEDERAL QUESTION UNDER TREATY.
108
the constitutionality of a law of the United States is drawn in
question, not incidentally, but necessarily and directly, that our
jurisdiction can be invoked for that reason."30
§ 114. Manner in which cause of action arises to be stated.—
If it is claimed that a cause of action depends upon the construc-
tion of a treaty, it must be stated in what way it arises. If a
complaint in ejectment states a reliance on a certain article of
a treaty and the fifth amendment of the Constitution, without
declaring that any right, title, privilege or immunity is derived
from either the Constitution or treaty, or indicating how the
cause of action is founded upon either, and the court does not
decide any question as to the application or construction of the
Constitution or validity or construction of the treaty, but holds
that the title of plaintiff failed on account of noncompliance with
Spanish law, a writ of error will not lie from the supreme court
of the United States.31
The right which it is claimed depends upon the treaty must
be so set up or claimed as to require the lower court to pass
on the question of validity or construction in disposing of the
right asserted.32
30 Mr. Chief Justice Fuller in Ans-
bro v. United States, 159 U. S. 698,
16 Sup. Ct. Kep. 189, 40 L. ed. 311.
See, also, as sustaining the same
proposition, Carey v. Houston & T.
K. Co., 150 U. S. 170, 14 Sup. Ct.
Eep. 63, 37 L. ed. 1041; Ex parte
Lennon, 150 U. S. 395, 14 Sup. Ct.
Eep. 123, 37 L. ed. 1121; Northern
P. E. Co. v. Amato, 144 U. S. 465,
12 Sup. Ct. Eep. 740, 36 L. ed. 506;
Sayward v. Denny, 158 U. S. 180, 15
Sup. Ct. Eep. 777, 39 L. ed. 941. It
is not competent for an assignment of
errors to import questions into a cause
which the record does not show were
raised in the court below and rulings
asked thereon, so as to give jurisdic-
tion to the supreme court of the
United States under the fifth section
of the act of March 3, 1891. Ansbro
v. United States, 159 U. S. 698, 16
Sup. Ct. Eep. 189, 40 L. ed. 311.
31 Muse v. Arlington Hotel Co., 168
U. S. 430, 18 Sup. Ct. Eep. Ill, 42
L. ed. 531.
32 Borgmeyer v. Idler, 159 U. S.
408, 16 Sup. Ct. Eep. 34, 40 L. ed.
199.
109 CONSTRUCTION OF TREATIES, ETC.
CHAPTER VII.
CONSTRUCTION. OF TREATIES AND EXTENT OF TREATY-MAKING
POWER.
§ 115. Construction of treaties a judicial question.
§ 116. Interpretation in spirit of good faith.
§ 117. Intention to be carried out.
§ 118. Treaties in two languages.
§ 119. Instructions to diplomatic officers.
§ 120. Both are originals.
§ 121. Construction favorable to execution of treaty.
§ 122. Vague and indefinite terms.
§ 123. Whole treaty to be taken together.
§ 124. Right of property in award.
§ 125. Liberal construction.
§ 126. Repugnant clauses.
§ 127. Construed as a law.
§ 128. Courts cannot question rights recognized by nation.
§ 129. Jurisdiction of crime on foreign ship.
§ 130. Rule declared by supreme court of United States.
§ 131. Most favored nation clause.
§ 132. Rules of construction codified.
§ 133. Extent of treaty-making power.
§ 134. General terms used.
§ 135. Comments.
§ 136. Chancellor Kent's views.
§ 137. Other expressions.
§ 138. Difference between delegation of treaty-making power and legisla-
tive power.
§ 139. Expressions of courts.
§ 140. Extends to all proper subjects of negotiation.,
§ 141. Comments.
§ 142. Views of Mr. Butler.
§ 143. Comments.
§ 144. Panama canal zone.
§ 145. Right to attend public schools.
§ 146. Treaty provisions.
§ 147. Constitution and statutes of California.
§ 148. Resolution as to Japanese children.
§ 149. Debate in United States Senate.
§ 150. Position of the United States.
§ 151. Views of Mr. Lewis.
§ 152. Same subject — Is the treaty-making power limited or unlimited.
§ 115] CONSTRUCTION OF TREATIES, ETC. 110
§ 153. Same subject — Limitation by words of Constitution.
§ 154. The tenth amendment.
§ 155. No question of state rights involved.
§ 156. Implied limitations upon treaty-making power.
§ 157. Same subject — Mr. Boot's views.
§ 158. Distribution of governmental powers.
§ 159. Suits by the government.
§ 160. Colored children and the public schools.
§ 161. Same facilities for education to be afforded.
§ 115. Construction of treaties a judicial question. — If a
treaty is silent as to the method of deciding questions of indi-
vidual identity, they must be decided by the courts;1 and where
a treaty has the effect of creating or vesting individual rights,
the meaning of the treaty as to such rights is to be ascertained
by the same rules that would prevail in the case of private con-
tracts.2 When not repugnant to the language or purpose of the
treaty, the construction of treaties adopted by the executive de-
partment should be followed by the courts.3
The treaty with Spain provides that ''requisitions for the
surrender of fugitives from justice shall be made by the respec-
tive diplomatic agents of the contracting parties," and that "it
shall be competent for such representatives or such superior con-
sular officers to ask and obtain a mandate or preliminary war-
rant of the arrest for the person whose surrender is sought,"
whereupon the judges shall have power, upon complaint made
under oath, to issue a warrant for the apprehension of the per-
son charged. This provision was held to be permissive only,
and not obligatory, and that the demanding government might,
at its option, proceed under section 5270 of the Revised
Statutes without a preliminary mandate, or might demand it
under the treaty provisions.4 If, however, such a preliminary
mandate is made prerequisite by the treaty, it is said that it
should be set forth upon the face of the warrant.5 It is not in-
1 Stockton v. Williams, Walk. Ch. sity of a preliminary mandate under
120. certain treaties, Ex parte Kaine, 3
2 Anderson v. Lewis, Freem. Ch. Blatchf. 1, Fed. Gas. No. 7597; Case
178. of McDonnell, 11 Blatchf. 79, Fed.
3 Castro v. De Uriarte, 16 Fed. 93. Cas. No. 8771; Case of Herman
4 Castro v. De Uriarte, 16 Fed. 93. Thomas, 12 Blatchf. 370, Fed. Cas.
5 Case of Farez, 7 Blatchf. 34, Fed. No. 13,887.
Cas. No. 4644. See as to the neces-
Ill
CONSTRUCTION OF TREATIES A JUDICIAL QUESTION. [§ 115
competent for Congress to pass laws in aid of a treaty, although
a treaty may provide a mode for carrying out its provisions.6
By the treaty between Spain and the United States for the ces-
sion of the Floridas, no provision was made for a tribunal to
decide upon the claims arising from injuries suffered by the
operations of the American army in Florida, but the appointment
of such a tribunal was left by the treaty to be made by the
government of the United States.7 A treaty is a contract as well
as a law, and its construction should be such as to give full effect
to all its parts.8
9 Castro v. De Uriarte, 16 Fed. 93.
7 Humphrey's Administrator v.
United States, Dev. Ct. of Cl., sees.
678, 679.
8 Goetze v. United States, 103 Fed.
72. "Treaties are subjected to the
following general rules, which govern
all contractual engagements:
"(1) There must be a concurrence
of minds to one and the same thing.
" (2) The interpretation of obscure
terms in a treaty is a matter of fact,
as to which extrinsic evidence may be
taken for the purpose of explaining
objective obscurity.
"(3) Construction of treaties is a
matter of law, to be governed by the
same rules mutatis mutandis, as pre-
vail in the construction of contracts
and statutes.
"(4) As contracts may be modi-
fied and rescinded, so may treaties.
" (5) Immoral stipulations are void
in treaties as tney are in contracts.
"(6) ' Construction' is to be
distinguished from ' interpretation. '
'Construction' gives the general sense
of a treaty and is applied by rules
of logic; 'interpretation' gives the
meaning of particular terms, to be
explained by local circumstances and
by the idioms the framers of the
treaty had in mind.
"(7) If two meanings are admis-
sible, that is to be preferred which
the party proposing the clause knew
at the time to be that which was held
by the party accepting it.
"Treaties are distinguishable from
contracts as follows:
"(1) Contracts (unless we regard
marriage as a contract) are, in all
cases, the subjects of a suit for debt
or damages, or for a specific thing.
But no such suit lies on breach of
duty.
"(2) Contracts can only be va-
cated or rescinded by consent, or by
the action of a court. But this is
not necessarily the case with a treaty.
There is no court which can be ap-
pealed to to dissolve it, and to de-
clare it not to be any longer binding.
"(3) While a contract may be an-
nulled on the ground of fraudulent in
fluence exercised by strength over
weakness, such a reason cannot be
set up for regarding a treaty as a
nullity, since all nations are supposed
to stand on the same footing, with
equal opportunities of detecting fraud,
and there are many cases of finesse
and false coloring or suppression of
facts which would avoid contracts,
which would not, mutatis mutandis,
avoid a treaty. If suppressio veri
abrogated treaties to the extent it
abrogates contracts, few treaties
would stand.
§§ 116, 117] CONSTRUCTION OF TREATIES, ETC. 112
§ 116. Interpretation in spirit of good faith. — A convention
in a treaty binding both of the contracting powers, and intended
for their mutual protection, should be interpreted in a spirit of
uberrima fides. Such a construction should be adopted as will
carry out the manifest purpose of the treaty.9
"As treaties are solemn engagements," said Mr. Justice
Brown, "entered into between independent nations for the com-
mon advancement of their interests and the interests of civiliza-
tion, and as their main object is not only to avoid war and se-
cure a lasting and perpetual peace, but to promote a friendly
feeling between the people of the two countries, they should be
interpreted in that broad and liberal spirit which is calculated
to make for the existence of a perpetual amity, so far as it
can be done without the sacrifice of individual rights or those
principles of personal liberty which lie at the foundation of our
jurisprudence. ' ' 10
Chancellor Kent declares that treaties "are to receive a fair
and liberal interpretation according to the intention of the con-
tracting parties, and to be kept with the most scrupulous good
faith. Their meaning is to be ascertained by the same rules of
construction and course of reasoning which we apply to the
interpretation of private contracts. ' ' 11
§ 117. Intention to be carried out. — As a corollary to the
proposition that treaties should be construed in good faith, it
results that the intention of the contracting parties should be
effectuated. The treaty of 1832 with Russia authorizes the ar-
rest and surrender of deserters from the ships of war of that
"(4) A treaty based upon a war demned. ' " Wharton's Int. Law Di-
accepts the results determined by gest, sec. 133, II, 36, citing Kent's
the war, unless otherwise provided, Commentaries, 173, as citing The Le-
while a contract does not necessarily gal Tender, reported in Wheat. Dig.
assume the existing relations of the 302; The Schooner Sophie, 6 Eob.
parties as a basis. 'The uti possl- Aclm. 138.
detis is the basis of every treaty of 9 Tucker v. Alexandroff, 183 U. S.
peace, unless it be otherwise agreed. 424, 22 Sup. Ct. Eep. 195, 46 L. ed.
Peace gives a final and perfect title 264.
to captures without condemnation, 10 Tucker v. Alexandroff, 183 U. S.
and, as it forbids all force, it de- 437, 22 Sup. Ct. Eep. 195, 46 L. ed.
stroys all hopes of recovery (of ves- 270.
sels) as much as if the vessel was n 1 Kent's Commentaries, 174.
carried infra proesidia, and con-
113 TREATIES IN TWO LANGUAGES. [§ 118
country. A vessel, launched, but still in process of construction
under a contract to build a protected cruiser for the Russian
government, is a Russian ship of war, within the purview of this
provision, although by the terms of the contract the vessel may
be rejected for deficiency in speed or excess in draught; and dur-
ing her construction is at the risk of the contractors until actual
acceptance, where it is also provided by the contract that the
vessel shall be constantly subject to inspection by a board of
Russian officers, and that all materials intended for the construc-
tion of the vessel when brought upon the premises of the con-
tractors shall become the exclusive property of the foreign gov-
ernment.12
The presumption can never be indulged in that either state
intends to provide the means of perpetrating or protecting
frauds, and all the provisions of the treaty are to be construed
as if they were intended to be applied to bona fide transactions.13
A monopoly, void by the common law and the laws of the
United States, but valid and patented by the law of Spain, will
be considered private property within the protection of a treaty.14
§ 118. Treaties in two languages. — Treaties between the Euro-
pean powers were, until about the beginning of the eighteenth
century, generally written in Latin. Since that time the custom
has been for negotiators of countries which do not use the same
language to prepare their treaties in the language of the signa-
tory powers. The treaties of the United States with Russia form
an exception to the general rule, as most of them have been
written in French and English.15
Mr. Jay, Secretary of Foreign Affairs, on June 23, 1785, in
transmitting to the President of Congress the consular convention
with France concluded by Dr. Franklin, remarked that it ap-
peared to be in the French language, but he observed that it
seemed expedient to provide in the future that "every treaty
12 Tucker v. Alexandroff, 183 U. S. 13 United States v. Amistead, 15
437, 22 Sup. Ct. Eep. 195, 46 L. ed. Pet. 518, 10 L. ed. 826.
270. A dissenting opinion was filed 14 O 'Beilly De Camera v. Brooke,
by Mr. Justice Gray, with whom Mr. 135 Fed. 384.
Chief Justice Fuller and Justices Har- " Mr. Fish, Secretary of State, to
Ian and White concurred. Miss Fraser, November 18, 1874, 105
MS. Dom. Let. 221.
Treaties — 8
§§ 119, 120] CONSTRUCTION OF TREATIES, ETC. 114
or convention which Congress may think proper to engage in
should be formally executed in two languages, viz., the language
of the United States and such other language as the party con-
tracting with them may prefer." 16
§ 119. Instructions to diplomatic officers. — Where English is
not officially employed, the standing instructions of diplomatic
officers of the United States are, as to the language of treaties:
"(a) The texts in the two languages should be engrossed in
parallel columns on the same page, if possible, or on opposite
pages of the same sheet. Two separate copies in different lan-
guages are not advisable, although this expedient is sometimes
resorted to in eastern countries, (b) In the copy of the treaty
to be retained by the diplomatic representative for transmission
to this government, the United States should be named first
throughout both texts in all places where the alternative change
may be made conveniently. Conversely, in both texts, through-
out the copy the foreign government is to retain, it should
be first named, (c) The language of the respective govern-
ment should always occupy the left-hand place in the copy to be
delivered to it. (d) The utmost care should be taken to insure
the substantial equivalence of sense of the two texts, so as to
exclude any erroneous effect due to translation. Though a strictly
liberal translation is often harsh and sometimes impossible the
absolute identity of the idea conveyed is indispensable. To this
end, the punctuation of the two texts should also be attentively
scrutinized and brought into substantial conformity."17
«
§ 120. Both are originals. — Where a treaty is executed in two
different languages, both are considered as originals, and they
must be construed together.18
Where a treaty between the United States and France is formu-
lated both in the French and English languages, both being
originals and intended to be identical, but in some particulars
differing, such a construction will be given to them as will es-
tablish conformity between them, if possible, without doing vio-
16 1 MS. Am. Let. 311. 18 United States v. Percheman, 7
17 Instructions to Diplomatic Offi- Pet. 51, 8 L. ed. 604.
cers of the United States, 1897, sec.
245, p. 100.
115 CONSTRUCTION FAVORABLE TO EXECUTION OF TREATY. [§§ 121, 122
lence to the terms of either.19 The text in each language is
considered as the equivalent of the other, and in a certain sense
as explanatory of it, and by this interpretation the two texts
have a common meaning. Both parties to the treaty stand on the
same footing of equality, and the object sought to be attained
by them has been accomplished.20
§ 121. Construction favorable to execution of treaty. — If a
treaty admits of two constructions, preference will be given to
that construction which is more favorable to its execution as
designed by the parties.21 It is like an ordinary contract or stat-
ute. Effect should be given to it, if possible. Courts, to en-
able them properly to construe a treaty, have a right to take into
consideration the situation of the parties at the time of its execu-
tion, the property which constitutes the subject matter of the
treaty, and the intention and purposes of the parties. The con-
struction of a treaty which has been adopted and acted upon by
all the parties to it will be taken as the true one, unless the par-
ties were, by fraud or mistake, mutually led into this construc-
tion. If the mutual construction is in the face of the language used,
and the rights of third parties have intervened, the language of
the treaty will control.22
§ 122. Vague and indefinite terms. — If a treaty uses terms
vague and indefinite, the nature of the thing to which they relate
should be regarded for the purpose of ascertaining the intention.
Such a construction should be given to these terms as will be in ac-
cordance with reason, and without injury to either will subserve
the convenience of both the contracting parties.23
A preamble to a treaty does not, strictly speaking, constitute
a part of the contract. But inasmuch as it is authenticated
by the signatures of the contracting parties, its averments are to
be treated as admitted truths.24
19 In re Metzger, 1 Barb. 248. 21 United States v. Payne, 2 Mc-
20 See note of Mr. Hay, Secretary Crary, 289, 8 Fed. 883.
of State, to Mr. Beaupre, No. 331, ~2 United States v. Payne, 2 Mc-
November 6, 1900, MS. Inst. Colom- Crary, 289, 8 Fed. 883.
bia, XIX, 123. 23 Howard v. Ingersoll, 17 Ala. 780.
24 Little v. Watson, 32 Me. 214.
§§ 123, 124] CONSTRUCTION OF TREATIES, ETC. 116
The treaty of 1783 with Great Britain contained a clause that
there should be no confiscations or prosecutions for anything done
during the war, but this provision, it was determined, could not
be construed as excusing trespassers from liability for damage
in civil suits brought to obtain judgments for damages.25
§ 123. Whole treaty to be taken together. — It was said by Mr.
Livingston, Secretary of State : ' ' There is no rule of construction
better settled either in relation to covenants between individuals
or treaties between nations than that the whole instrument con-
taining the stipulation is to be taken together, and that all
articles in pari materia should be considered as parts of the same
stipulations. ' ' 2Q
Reference cannot be made to the supplemental article of the
treaty of 1800, by which the spoliation claims were released to
France for the purpose of explaining the preceding articles,
where such supplemental article was not appended to the treaty
until ten months after the treaty was signed.27
§ 124. Right of property in award. — Although an award has
been made pursuant to the terms of a treaty, it is competent for
the government to negotiate for the retrial of any claim allowed,
and to withhold the amount of such claim pending the negotia-
tions. There is no right of property in the citizen of one country
in the amount awarded to him that is not subject to the control
of his government. The persons presenting claims are not par-
ties to the treaty, and while between the two governments the
awards are final, yet one country may treat with another for a re-
25 Whitaker 's Administrator v. Eng- drid of March 21, 1801, was the
lish, 1 Bay, 15. transfer by the King of Spain of
26 Mr. Livingston, Secretary of the sovereignty of Louisiana to the
State, to Baron Lederer, Consul-Gen- French Eepublic complete. Spain
eral of Austria, November 5, 1832, continued to be the sovereign de
MS. Notes to For. Leg., V, 63. facto, and the terms of these treaties
27 The Tom, 29 Ct. of Cl. 68; Eng- do not necessarily import a change
lish v. United States, Id.; Boutwell of sovereignty de jure, but only ex-
v. United States, Id.; Atkinson v. press the idea of a promise to cede
United States, Id.; Hunt v. United on the performance of certain condi-
States, Id. It was held that neither tions precedent. Kenton v. Bar-
by the treaty of San Ildefonso of oness of Pontalba, 1 Rob. 343.
October 1, 1800, nor by that of Ma-
117
BIGHT OF PROPERTY IN AWARD.
§ 124
trial. If our government should discover that it had been made
the instrument for imposition upon a friendly power, the highest
principles of national good faith require it to make reparation as
far as possible.28
Thus, the. treaty between the United States and Mexico of 1868
provided for the submission to a commission to be created under
a treaty of all claims of the United States, and that the award
should be a full, perfect and final settlement as between the
parties. While it was admitted that the awards were final and
conclusive between the United States and Mexico until set aside
by an agreement between the two governments, yet, it was held
that the United States might negotiate with Mexico for a retrial
of a particular award on account of the alleged fraudulent char-
acter of the proof offered to sustain the claim.29 The view taken
28 Frelinghuysen v. United States,
110 U. S. 63, 3 Sup. Ct. Rep. 462, 28
L. ed. 71.
29 Frelinghuysen v. United States,
110 U. S. 63, 3 Sup. Ct. Rep. 462, 28
L. ed. 71. Mr. Chief Justice Waite,
in delivering the opinion of the court,
said:
"There is no doubt that the pro-
visions of the Convention as to the
conclusiveness of the awards are as
strong as language can make them.
The decision of the commissioners of
the umpire, on each claim, is to be ab-
solutely final and conclusive and with-
out appeal. The President of the
United States and the President of
the Mexican Republic are to give full
effect to such decisions, without any
objection, evasion or delay whatso-
ever, and the result of the proceed-
ings of the commission is to be con-
sidered 'a full, perfect and final set-
tlement of every claim upon either
Government, arising out of transac-
tions prior to the exchange of the
ratifications of the .... Conven-
tion. ' But this is to be construed as
language used in a compact of two
nations ' for the adjustment of the
claims of the citizens of either ....
against the other, ' entered into l To
increase the friendly feeling between'
republics and so to strengthen the
system and principles of republican
government on the American conti-
nent. No nation treats with a citi-
zen of another nation, except through
his government. The treaty, when
made, represents a compact between
the governments, and each government
holds the other responsible for every-
thing done by their respective citizens
under it. The citizens of the United
States having claims against Mexico
were not parties to this Convention.
They induced the United States to
assume the responsibility of seeking
redress for injuries they claimed to
have sustained by the conduct of
Mexico, and as a means of obtaining
such redress the Convention was en-
tered into, by which not only claims
of citizens of the United States
against Mexico were to be adjusted
and paid, but those of citizens of
Mexico against the United States as
well. By the terms of the compact,
the individual claimants could not
themselves submit their claims and
§ 124]
CONSTRUCTION OF TREATIES, ETC.
118
by the court was that the citizens of the respective countries
were not parties to the treaty, because a treaty is a compact
between governments, and one government holds the other re-
sponsible for all acts performed by its citizens under the treaty.
proofs to the commission to be
passed upon. Only such claims as
were presented to the Governments
respectively could be referred to the
commission, and the commissioners
were not allowed to investigate or
decide on any evidence or informa-
tion except such as was furnished
by or on behalf of the Govern-
ments. After all the decisions were
made and the business of the com-
mission concluded, the total amount
awarded to the citizens of one
country was to be deducted from
the amount awarded to the citizens of
the other, and the balance only paid
in money by the Government, in favor
of whose citizens the smaller amount
was awarded, and this payment was
to be made, not to the citizens but
to their Government. Thus, while the
claims of the individual citizens were
to be considered by the commission
in determining amounts, the whole
purpose of the Convention was to
ascertain how much was due from
one Government to the other on ac-
count of the demands of their re-
spective citizens.
"As between the United States
and Mexico the awards are final and
Conclusive until set aside by agree-
ment between the two Governments
or otherwise. Mexico cannot, under
the terms- of the Treaty, refuse to
make the payments at the times
agreed on if required by the United
States. This she does not now seek to
do. Her payments have all been made
promptly as they fell due, as far as
these records show. What she asks
is the consent of the United States
to her release from liability under
the Convention on account of the par-
ticular awards now in dispute, be-
cause of the alleged fraudulent char-
acter of the proof in support of the
claims which the United States were
induced by the claimants to furnish
for the consideration of the commis-
sion.
"As to the right of the United
States to treat with Mexico for a
retrial, we entertain no doubt. Each
Government, when it entered into the
compact under which the awards were
made, relied on the honor and good
faith of the other for protection as
far as possible against frauds and
impositions by the individual claim-
ants. Itv was for this reason that all
claims were excluded from the con-
sideration of the commission except
such as should be referred by the sev-
eral Governments, and no evidence in
support of or against a claim was to
be submitted except through or by
the Governments. The presentatiou
by a citizen of a fraudulent claim or
false testimony for reference to the
commission was an imposition on his
own Government, and if that Gov-
ernment afterwards discovered that
it had in this way been made an in-
strument of wrong towards a friendly
power, it would be not only its right
but its duty to repudiate the Act and
make reparation as far as possible
for the consequences of its neglect if
any there had been. International
arbitration must always proceed on
the highest principles of national
honor and integrity. Claims pre-
sented and evidence submitted to
119 LIBERAL CONSTRUCTION. [§ 125
In entering into the award, each government relied upon the
honor of the other, for protection against fraudulent claims,
and, hence, when a citizen presented a false claim, he imposed
upon his own government, which might, as a matter of duty,
when it became aware of the fraud, make reparation as far as
it lay in its power so to do.
§ 125. Liberal construction. — The general rule of the construc-
tion of treaties is that they shall be liberally construed for the
purpose of effectuating the apparent intention of the parties to
obtain equality and reciprocity between them, and words are to
be taken in their ordinary signification as they are understood in
the public law of nations. They are not to be understood in any
artificial or special sense that may be placed upon them by local
law, unless it is clear that such restricted sense was intended.30
Vattel says: "The reason of the law or of the treaty — that
is to say, the motive which led to the making of it, and the
object in contemplation at the time — is the most certain clue to
lead us to the discovery of its true meaning ; and great attention
should be paid to this circumstance, whenever there is question
either of explaining an obscure, ambiguous, indeterminate pas-
such a tribunal must necessarily bear ceeds of international awards after
the impress of the entire good faith they have passed beyond the reach of
of the government from which they the government's and into the hands
come, and it is not to be presumed of private parties. The language of
that any government will for a mo- the opinions must be construed in
ment allow itself knowingly to be connection with this fact. The opin-
made the instrument of wrong in ion of the Attorney General in Gibbs'
any such proceeding. No technical Case, 13 Ops. Attys. Gen. 19, re-
rules of pleading as applied in munic- lated to the authority of the execu-
ipal courts ought ever to be allowed tive officers to submit the claim of
to stand in the way of the national Gibbs to the second commission after
power to do what is right under all it had been passed on by the first,
the circumstances. Every citizen who without any new treaty between the
asks the intervention of his own gov- Governments to that effect, not to
ernment against another for the re- the power to make such a treaty. ' '
dress of his personal grievances must "° De Geofroy v. Biggs, 133 U. S.
necessarily subject himself and his 258, 10 Sup. Ct. Eep. 295, 33 L. ed.
claim to these requirements of in- 642; In re Wyman, 191 Mass. 276,
ternational comity. None of these 114 Am. St. Rep. 601, 77 N. E. 379.
cases cited by counsel are in opposi- See, also, United States v. Auguisola,
tion to this. They all relate to the 1 Wall. 352, 17 L. ed. 613.
disposition to be made of the pro-
§ 126] CONSTRUCTION OF TREATIES, ETC. 120
sage in a law or treaty, or of applying it to a particular case.
When once we certainly know the reason which alone has deter-
mined the will of the person speaking, we ought to interpret
and apply his words in a manner suitable to that reason alone ;
otherwise, he will be made to speak and act contrary to his in-
tention, and in opposition to his own views. ' ' 31
If two constructions can be placed upon a treaty, one favorable
to rights claimed under it, the other restrictive, preference will
be given to the favorable construction.32
§ 126. Repugnant clauses. — As a treaty under the Constitution
is equivalent to an act of Congress, a treaty repealing a prior act
of Congress and an act of Congress repealing a prior treaty when
they are in conflict, it follows that the rules of construction ap-
plied to two repugnant or inconsistent statutes will prevail.
President Woolsey, in his treatise on International Law, lays
down the following rules of construction in cases of repugnancy :
"That earlier clauses are to be explained by later ones, which
were added, it is reasonable to suppose, for the sake of explana-
tion, or which at least express the last mind of the parties. So,
also, later treaties explain or abrogate older ones.
"Special clauses have the preference over general, and for the
most part prohibitory over permissive.
"In treaties made with different parties the inquiry in cases
of conflict touches the moral obligation as well as the meaning.
Here the earlier treaty must evidently stand against the later,
and, if possible, must determine its import where the two seem
to conflict.
"In general, conditional clauses are inoperative, as long as the
condition is unfulfilled; and are made null when it becomes im-
31 Vattel, bk. II, c. 17, sec. 287. than a liberal one, and that there is
32 Hauenstein v. Lynham, 100 U. no authority for reading into a
S. 483, 25 L. ed. 628. But it is also treaty under the guise of construc-
held that as treaties between na- tion, extraordinary provisions not
tions are generally drafted with necessary to give full effect to the in-
great care by men of learning and tention expressed. The Neck, 138
experience, accustomed to select words Fed. 144. It was the purpose at the
that will express precisely and fully time of the signature of the treaty of •
the intent of the contracting parties, 1800 that all causes of difference
the construction to be placed upon the should for the time being be disposed
treaty should be a reasonable rather of. The Tom, 39 Ct. of Cl. 290.
121 CONSTRUED AS A LAW. [§§ 127, 128
possible. Where things promised in a treaty are incompatible,
the promisee may choose which he will demand the performance
of, but here and elsewhere an act of expediency ought to give
way to an act of justice. ' ' 33
§ 127. Construed as a law. — A treaty is as much a part of the
law of the land as the common law or statutes.34 Whatever
private rights may exist, they must always be subject to treaties
made between sovereignties. Individuals seeking an indemnity
under such circumstances for injuries committed must look to
their respective governments.35
The boundary between Virginia and Tennessee which was es-
tablished between these states, and to which Congress gave con-
sent, will be given effect as the true boundary.36 Grants made
by a de facto government of land in its possession, it was held in
the state court, were valid as against the state which had the
right,37 but on appeal to the supreme court of the United States
reversed the decision, holding that the grants were invalid as
against the government to which the territory rightfully be-
longed.38
§ 128. Courts cannot question rights recognized by nation. —
A treaty made by proper authority becomes the law of the land,
and there is no power in the courts to question or in any manner
to look into the powers or rights which the nation with whom it
was made recognizes;39 nor can courts inquire whether a treaty
was procured by undue influence;40 nor whether the person
ratifying it on behalf of the foreign nation had authority.41
In case of doubt, the inconveniences that would result from a con-
struction contended for by one party to the treaty may be used
as an argument to show that that construction cannot be con-
formable to the intent of the parties, but a stipulation, though in-
33 Woolsey's Int. Law, sec. 113. states. Ehode Island v. Massachu-
a4 Jost v. Jost, 1 Mackey, 487. setts, 12 Pet. 725, 9 L. ed. 1261.
35 Fleeter v. Poole, 1 McLean, 185 3T Groover v. Coffee, 19 Fla. 79, 20
Fed. Gas. No. 4860; Poole v. Flee- Fb. 81.
ger, 11 Pet. 185, 9 L. ed. 680, where 3S Coffee v. Groover, 123 U. S. 1,
case is affirmed. 8 Sup. Ct. Eep. 1, 31 L. ed. 51.
36 Virginia v. Tennessee, 148 U. S. 39 Harden v. Ingersoll, 6 Mich. 373.
525, 13 Sup. Ct. Rep. 736, 37 L. ed. 40 Leighton v. United States, 29
545. The supreme court of the United Ct. of Cl. 288.
States has jurisdiction to ascertain 41 Doe v. Braden, 16 How. (U. S.)
and fix disputed boundaries between 635, 14 L. ed. 1090.
§ 129] CONSTRUCTION OF TREATIES, ETC. 122
convenient, must be fulfilled if it be explicit.42 It is not neces-
sary that a person basing his claim upon the provisions of a
treaty should make a formal claim of his rights under the treaty,
because treaties are a part of the law of every state.43
§ 129. Jurisdiction of crime on foreign ship. — When a mer-
chant vessel of one country enters the ports of another for the pur-
poses of trade, it is subject to the laws of such other country, un-
less the two countries have, by treaty or otherwise, reached some
different understanding or agreement.44
The owner of the vessel is entitled to protection from the gov-
ernment, and owes such allegiance to it as is due to such protec-
tion. But experience has demonstrated that commerce would be
benefited if the local government would refrain from inter-
ference with the internal discipline of the ship, and the general
regulation of the rights and duties of the officers and crew among
themselves. If crimes, however, are committed on board of the
vessel of such a character that they disturb the peace and tran-
quility of the country to which the vessel has been brought, the
local tribunals have the power to assert their authority, and the
offenders cannot, by the principles of comity or usage, claim ex-
emption from the operation of the local laws. While this is
the general public law, it has been found convenient for nations
having commercial intercourse to enter into treaties and conven-
tions to settle and define the rights and duties of such nations,
and thus obviate the embarrassment that would arise from the
exercise of different jurisdictions. Under the convention entered
into with France in 1788 for the purpose of defining and estab-
lishing the functions and privileges of their respective consuls,
it was provided that the consuls should exercise police power
over the vessels of their respective nations.45
42 Mr. Livingston, Secretary of of Nations in Time of Peace, 229,
State, to Baron Lederer, November 5, sec. 159; Creasy 's Int. Law, 167,
1882, MS. Notes to For. Leg., V, 63. sec. 176; Halleck's Int. Law, 1st
43 Ehrlich v. Weber, 114 Tenn. 711, ed., 171. This is the rule enforced
88 S. W. 188. in the English courts. Kegina v. Cun-
44 The Exchange, 7 Cranch, 144, 3 ningham, Bell C. C. 72; S. C., 8 Cox
L. ed. 296; United States v. Diekel- C. C. 104; Eegina v. Anderson, 11 Cox
man, 92 U. S. 520, 23 L. ed. 742; 1 C. C. 198; S. C., L. R. 1 C. C. 161;
Phillmore 's International Law, 3d Eegina v. Keyn, 13 Cox C. C. 403.
ed., 483, sec. CCCLI; Twiss' Law 4r> 8 Stats, at Large, 106.
123 RULE DECLARED BY SUPREME COURT OF UNITED STATES. [§ 130
Two cases arose under this convention, in one of which an as-
sault was committed by one of the crew upon another, and the
second was where a severe wound had been inflicted by the mate
upon one of the seamen for having made use of the boat with-
out permission.46
§ 130. Rule declared by supreme court of United States. — The
rule declared by the supreme court of the United States is: "Dis-
orders which disturb only the peace of the ship or those on
board are to be dealt with exclusively by the sovereignty
of the home of the ship, but those which disturb the public peace
may be suppressed, and, if need be, the offenders punished by the
proper authorities of the local jurisdiction."47
The convention between the United States and Belgium, con-
cluded March 9, 1880, contained a clause that consuls "shall
have exclusive charge of the internal order of the merchant ves-
sels of their nation, and shall alone take cognizance of all dif-
ferences which may arise, either at sea or in port, between the
captains, officers and crews, without exception, particularly with
reference to the adjustment of wages and the execution of con-
tracts. The local authorities shall not interfere except when
the disorder that has arisen is of such a nature as to disturb tran-
quility and public order on shore, or in the port." This provi-
sion, it was held, did not deprive the local authorities of juris-
diction of a homicide which had been committed on board of a
Belgian vessel moored to the dock in an American port, where
the homicide was the consequence of an affray between two
Belgians, both of whom belonged to the crew of the vessel, not-
withstanding that it occurred below deck and was only seen by
other members of the crew.48
40 See for an account of these cases, over certain crimes committed on
Wheaton's Elements of International board of vessels lying in a domestic
Law, 3d ed., 153; 1 Phillmore's Inter- port. Ex parte Byers, 32 Fed. 408.
national Law, 3d ed., 484. Only in cases of peculiar urgency
47 Mali v. Keeper of the Common should a person held in custody by
Jail, 120 U. S. 1, 7 Sup. Ct. Eep. 385, state authorities be discharged by a
30 L. ed. 565. federal judge on habeas corpus in ad-
48 Mali v. Keeper of the Common vance of proceedings in state courts to
Jail, 120 U. S. 1, 7 Sup. Ct. Rep. 385, determine the validity of the arrest:
30 L. ed. 565. State and federal au- Whitten v. Tomlinson, 160 U. S. 242,
thorities have concurrent jurisdiction 16 Sup. Ct. Eep. 301, 40 L. ed. 412,
§ 131] CONSTRUCTION OF TREATIES, ETC. 124
§ 131. Most favored nation clause. — Treaties generally, if not
universally, contain a clause that the subjects of each nation shall
enjoy in the territory of the other all the rights, privileges and
immunities of the subjects of the most favored nation. While the
language employed is not always the same, substantially, the ob-
ject to be attained is to place all nations on an equality. This
clause, and the rights claimed under it, have frequently formed
the subject of diplomatic controversy. In 1817 Mr. Adams said
that one nation should not enjoy as a gift that which is conceded
to other nations for a full equivalent.49
Where a claim was made by the Austrian charge d'affaires for
the benefit of the stipulation in the treaties between the United
States with Russia and certain other countries, conferring upon
consuls the power to hear disputes between the masters and crews
of vessels, the Department of State responded: " Seeing that
the right now under consideration, where it can be claimed under
a treaty wherein it is expressly conferred, is, in every such in-
stance, given in exchange for the very same right conferred in
terms equally express upon the consuls of the United States, it
cannot be expected that it will be considered as established by
the operation of a general provision, which, if it were allowed
so to operate, would destroy all reciprocity in this regard, leav-
ing the United States without that equivalent in favor of their
consuls, which is the consideration received by them for the
grant of this right wherever expressly granted."50
A Danish ship is not entitled, under the most favored nation
clause in the treaty with Denmark, to claim exemption from the
head money exacted for immigrants under an act of Congress.51
Nor is sugar imported from the dominions of Denmark entitled
to exemption from duty because sugar imported from the
Hawaiian Islands is so exempted, as such exemption was made
in consideration of reciprocal concessions.52
49 Mr. Adams, Secretary of State, 52 Bartram v. Eobertson, 122 U. S.
December 23, 1817, Am. State Papers, 116, 7 Sup. Ct. Eep. 1115, 30 L. ed.
For. Eel., V, 152. 1118. Mr. Frelinghuysen said in
50 Mr. Buchanan, Secretary of 1884 in a note to Mr. Eomero, the
State, to the Chev. Hiilsemann, May Mexican Minister: " While this gov-
18, 1846, MS. Notes to German ernment cannot agree with that of
States, VI, 130. Mexico, that under the provisions of
51 Thingvalla Line v. United States, the most favored nation clause an-
24 Ct. of Cl. 255. other nation becomes entitled to
125 RULES OF CONSTRUCTION CODIFIED. [§ 132
Stipulations of a treaty declaring what articles shall and what
shall not be considered as contraband do not come within the
operation of the most favored nation clause.53 Engagements
of extradition are founded on particular treaty stipulations, and
are not to be inferred from a favored nation clause.54 But
the most favored nation clause will apply to a stipulation con-
ferring upon consular officers the right to administer on the
estates of their deceased countrymen.55
A pilotage law of the United States may provide for the ex-
emption from pilotage of American coast vessels without infring-
ing a treaty stipulation that "no higher or other duties or charges
shall be imposed in any of the ports of the United States on
British vessels than those payable in the same ports by vessels of
the United States."56
§ 132. Rules of construction codified. — Mr. J. C. Bancroft
Davis, in 1873, codified, for the use of the State Department of the
United States, the rules governing the construction of treaties as
follows : 57 f
"1. A treaty, constitutionally concluded and ratified, abrogates
all State laws inconsistent therewith. It is the supreme law of
the land, subject only to the provisions of the constitution.58
"While, however, treaties are a part of the supreme law of the
land, they are nevertheless to be viewed in two lights, — that is
to say, in the light of politics and in the light of juridical law.
The decision of political questions is pre-eminently the func-
privileges granted by a reciprocity B6 Olsen v. Smith, 195 TJ. S. 332, 25
treaty, still as there are various con- Sup. Ct. Rep. 52, 49 L. ed. 224.
siderations affecting the question as " United States Treaties and Con-
now presented, I content myself with ventions, Introductory notes, 1227-
a courteous denial that the most fa- 1229 (1889).
vored nation clause applies to reciproc- K Citing 6 Op. Atty. Gen. 293 ,
ity treaties, without now entering Cushing, and cases cited by him;
into any argument on the subject." United States v. Schooner Peggy, 1
MS. Notes to Mex., IX, 1. Cranch, 103, 2 L. ed. 49; Ware v.
53 The James and William, 37 Ct. Hylton, 3 Dall. 199, 1 L. ed. 568;
of Cl. 303. Gordon's Lessee v. Kerr, 1 Wash. C.
54 Cushing, 6 Op. Atty. Gen. 148. C. 322, Fed. Gas. No. 5611; Lessee
55 In re Fattosini's Estate, 67 N. of Fisher v. Harnden, 1 Paine C. C.
Y. Supp. 1119, 33 Misc. Eep. 18; Wy- 55, Fed. Cas. No. 4819; 8 Op. Atty.
man v. McEvoy, 191 Mass. 276, 114 Gen. 417, Cushing; 13 Op. Atty. Gen.
Am. St. Eep. 601, 77 N. E. 379. 354, Akerman.
§ 132] CONSTRUCTION OF TREATIES, ETC. 126
tion of the political branch of the government, of the Executive
or of Congress, as the case may be; and when a political ques-
tion is so determined, the Courts follow that determination.
Such was the decision of the Supreme Court in cases involving
boundary and other questions, under the treaty of 1803 with
France, of 1819 with Spain, and of 1848 with Mexico.59
"2. A treaty is binding on the contracting parties, unless
otherwise provided, from the day of its date. The exchange of
ratifications has, in such case, a retroactive effect, confirming
the treaty from its date. But a different rule prevails when the
treaty operates on individual rights. The principle of relation
does not apply to rights of this character, which were vested be-
fore the treaty was ratified ; it is not considered as concluded until
there is an exchange of ratifications.60
"3. When a treaty requires a series of legislative enactments
to take place after exchange of ratifications, before it can be-
come operative, it will take effect as a national compact, on its
being proclaimed, but it cannot become operative as to the par-
ticular engagements until all of the requisite legislation has taken
place.61
"4. Where a treaty cannot be executed without the aid of an
Act of Congress, it is the duty of Congress to enact such law.
Congress has never failed to perform that duty.62
' ' 5. But when it can be executed without legislation, the Courts
will enforce its provisions.63
59 Citing Doe et al. v. Braden, 16 eo Citing Davis v. Parish of Con-
How. 635, 14 L. ed. 1090; Foster v. cordia, 9 How. 280, 13 L. ed. 138;
Neilson, 2 Pet. 314, 7 L. ed. 415 ; The Lessee of Hylton v. Brown, 1 Wash.
Amiable Isabella, 6 Wheat. 1, 5 L. C. C. 343, Fed. Cas. No. 6982; Haver
ed. 191; Grisar v. McDowell, 6 Wall. v. Yaker, 9 Wall. 32, 19 L. ed. 571;
363, 18 L. ed. 863; United States v. United States v. Arredondo, 6 Pet.
Yorba, 1 Wall. 412, 17 L. ed. 635 ; 691, 8 L. ed. 547.
United States v. Pico, 23 How. 326, G1 Citing 6 Op. Atty. Gen. 750,
16 L. ed. 464; United States v. Gushing, and also chapter 10 of vol.
Lynde, 11 Wall. 633, 20 L. ed. 230; 1, Idem.
Meade v. United States, 9 Wall. 691, 62 Citing 6 Op. Atty. Gen. 296,
19 L. ed. 687; United States v. Gushing, and cases cited.
Reynes, 9 How. 127, 13 L. ed. 74; C3 Citing Foster v. Neilson, 2 Pet.
Davis v. Parish of Concordia, 9 How. 314, 7 L. ed. 415; United States v.
280, 13 L. ed. 138; 5 Op. Atty. Gen. Arredondo, 6 Pet. 735, 8 L. ed. 547.
67, Toucey.
127 RULES OP CONSTRUCTION CODIFIED. [§ 132
"6. Where a treaty is executed in two languages, each the
language of the respective contracting parties, each part of the
treaty is an original, and it must be assumed that each is in-
tended to convey the same meaning as the other.64
"7. Treaties do not generally, ipso facto, become extinguished
by war. Vested rights of property will not become divested in
such cases.65
"8. The constitution of the United States confers absolutely
upon the government of the United States the power of making
war and of making treaties, from which it follows that that gov-
ernment possesses the power of acquiring territory, either by con-
quest or by treaty.66
"9. Such acquisition does not impair the rights of private
property in the territory acquired.67
"10. A treaty of cession is a deed of the ceded territory by the
sovereign grantor, and the deed is to receive an equitable con-
struction. The obligation of the new power to protect the in-
habitants in the enjoyment of their property is but the asser-
tion of a principle of natural justice.68
"11. In an opinion upon the legislation to carry into effect
the treaty of 1819 with Spain, Attorney General Crittenden held
that 'An act of Congress is as much a supreme law of the land
as a treaty. They are placed on the same footing, and no
superiority is to be given to the one over the other. The last
expression of the law giving power must prevail; and a subse-
quent act must prevail and have effect, though inconsistent with
a prior act ; so must an act of Congress have effect, though incon-
sistent with a prior treaty. ' 69
64 Citing United States v. Arre- L. ed. 938 ; Delassus v. United States,
dondo, 6 Pet. 710, 8 L. ed. 547. 9 Pet. 117, 9 L. ed. 71; Mitchell v.
65 Citing Society for Propagation United States, 9 Pet. 711, 9 L. ed.
of the Gospel v. Town of New Haven, 283 ; Smith v. United States, 10 Pet.
8 Wheat. 464, 5 L. ed. 662; Carneal 326, 9 L. ed. 442.
v. Ban, 10 Wheat. 182, 6 L. ed. 297. 69 5 Op. Atty. Gen. 345, Critten-
66 Citing Am. Ins. Co. v. 366 Bales den; but see opinions of Justice
of Cotton (Canter), 1 Pet. 542, 7 L. Chase, Ware v. Hylton, 3 Dall. 236,
ed. 243. 5 L. ed. 568, and of Marshall, Chief
67 Citing United States v. Morano, Justice, United States v. The Peggy,
1 Wall. 400, 17 L. ed. 633. 1 Cranch, 109, 2 L. ed. 49, each pro-
68 Citing United States v. Arre- nouncing the opinions of the supreme
dondo, 6 Pet. 710, 8 L. ed. 547; Sou- court.
lard v. United States, 4 Pet. 511, 7
§ 133] CONSTRUCTION OF TREATIES, ETC. 128
"12. Interest, according to the usage of nations, is a necessary
part of a just national natural indemnification."70
§ 133. Extent of treaty-making power. — The question of the
extent of the treaty-making power of the United States is an
academic one. No treaty ever made has been declared to con-
flict with the Constitution. In the constitutional convention the
question was not discussed, and the only point mooted was as to
the placing of the power. When the Constitution came up for
ratification, it was freely asserted by its opponents that the
treaty-making power was unlimited. In answer to this objec-
tion Mr. Madison said: "As to its extent, perhaps it will be
satisfactory to the committee that the power is precisely in the
new Constitution as it is in the Confederation. In the existing
confederacy Congress is authorized indefinitely to make treaties.
Many of the states have recognized the treaties of Congress to
be the supreme law of the land. Acts have passed within a year
declaring this to be the case. I have seen many of them. Does
it follow because the power is given to Congress that it is abso-
lute and unlimited ? I do not conceive that power is given to the
President and Senate to dismember the empire or to alienate any
great essential right. I do not think the whole legislative au-
thority have this power. The exercise of the power must be
consistent with the object of the delegation. One objection
against the amendment proposed is this, that by implication it
would give power to the legislative authority to dismember the
empire, a power that ought not to be given but by the necessity
that would force assent from every man. I think it rests on the
safest foundations as it is. The object of treaties is the regula-
tion of intercourse with foreign nations and is external. I do not
think it possible to enumerate all the cases in which such external
regulations would be necessary. Would it be right to define all
the cases in which Congress could exercise this authority? The
definition might and probably would be defective. They might
be restrained by such a definition from exercising the authority
where it could be essential to the interest and safety of the com-
70 1 Op. Atty. Gen. 28, Wirt; 5 eva Award, 4 Papers Eelating to
Op. Atty. Gen. 550, Crittenden; Gen- Washington, 53.
129 GENERAL TERMS USED. [§ 134
munity. It is most safe, therefore, to leave it to be exercised as
contingencies may arise."71
§ 134. General terms used. — The Constitution uses general
terms in speaking of treaties. In his lectures on the Constitu-
tional Jurisprudence of the United States Mr. Duer states:
"More general and extensive terms, also, are used in vesting
the power with respect to treaties, than in conferring that rela-
tive to laws ; and, while the latter is laid under several restrictions,
there are none imposed on the exercise of the former, notwith-
standing it is committed to the President and Senate, in exclu-
sion of the House of Representatives, and is executed through
the instrumentality of agents delegated for the purpose. And
although the President and Senate are thus invested with this
high and exclusive control over all those subjects of negotiation
with foreign powers, which, in their consequences, may affect im-
portant domestic interests; yet it would have been impossible to
have denned a power of this nature, and, therefore, general
terms only were used. These general expressions, however, ought
strictly to be confined to their legitimate signification; and in
order to ascertain whether the execution of the treaty-making
power can be supported in any given case, those principles of the
Constitution, from which the power proceeds, should carefully be
71 3 Elliott 's Debates, 514. It was are there any constitutional bounds
said by Attorney General Wirt : ' t The set to those who shall make them,
people seemed to have contemplated The president and two thirds of the
the National Government as the sole senate will be empowered to make
organ of intercourse with foreign na- treaties indefinitely, and when these
tions. It ought to be armed with treaties shall be made, they will also
power to satisfy the fulfillment of all abolish all laws and state constitu-
moral obligations, perfect and im- tions incompatible with them. This
perfect, which the law devolves upon power in the president and senate is
us as a nation. ' ' 1 Op. Atty. Gen. absolute, and the judges will be
392. Eichard Henry Lee, who strenu- bound to allow full force to what-
ously opposed the adoption of the ever rule, article or thing the presi-
Constitution, speaking of the clause dent and senate shall establish by
making treaties the supreme law of treaty, whether it is practicable to
the land, said : ' ' By the article before set any bounds to those who make
recited, treaties also made under the treaties, I am not able to say; if not,
authority of the United States, shall it proves that this power ought to be
be the supreme law. It is not said more safety lodged." Ford's Pam-
that these treaties shall be made in phlets on the Constitution, 311.
pursuance of the constitution — nor
Treaties — 9
§ 134]
CONSTRUCTION OF TREATIES, ETC.
130
applied to it. The power must, indeed, be construed in subordina-
tion to the Constitution; and however, in its operation, it may
qualify, it cann/t supersede or interfere with, any other of its
fundamental provisions, nor can it ever be so interpreted as to
destroy other powers granted by that instrument. A treaty to
change the organization of the Government, or annihilate its
sovereignty, or overturn its Republican form, or to deprive it of
any of its constitutional powers, would be void ; because it would
defeat the will of the people, which it was designed to fulfill."72
72 Lectures on the Constitutional
Jurisprudence of the United States,
2d ed., 228.
Judge Story, speaking of the con-
struction that should be placed upon
general terms used in the Constitu-
tion, says: " Where the power is
granted in general terms, the power
is to be construed, as co-extensive
with the terms, unless some clear re-
striction upon it is deducible from the
context. We do not mean to assert,
that it is necessary, that such restric-
tion should be expressly found in the
context. It will be sufficient, if it
arise by necessary implication. But
it is not sufficient to show that there
was, or might have been, a sound or
probable motive to restrict it. A re-
striction founded on conjecture is
wholly inadmissible. The reason is
obvious; the test was adopted by the
people in its obvious and general
sense. We have no means of knowing,
that any particular gloss, short of this
sense, was either contemplated, or ap-
proved by the people ; and such a gloss
might, though satisfactory in one
state, have been the very ground of
objection in another. It might have
formed a motive to reject it in one,
and to adopt it in another. The
sense of a part of the people has no
title to be deemed the sense of the
whole. Motives of state' policy, or
state interest, may properly have in-
fluence in the question of ratifying
it; but the constitution itself must
be expounded, as it stands; and not
as that policy, or that interest may
seem now to dictate. We are to con-
strue, and not to frame the instru-
ment.
"A power, given in general terms,
is not to be restricted to particular
cases, merely because it may be sus-
ceptible of abuse, and, if abused, may
lead to mischievous consequences.
This argument is often used in pub-
lic debate; and in its common aspect
addressed itself so much to popular
fears and prejudices, that it insensi-
bly acquires a weight in the public
mind, to which it is nowise entitled.
The argument ab inconvenienti is
sufficiently open to question, from the
laxity of application, as well as of
opinion, to which it leads. But the
argument from a possible abuse of a
power against its existence or use, is,
in its nature, not only perilous, but in
respect to governments, would shake
their very foundation. Every form
of government unavoidably includes a
grant of some discretionary powers.
It would be wholly imbecile without
them. It is impossible to foresee all
the exigencies, which may arise in the
progress of events, connected with the
rights, duties, and operations of a
government. If they could be fore-
seen, it would be impossible ab ante
131
COMMENTS.
[§§ 135, 136
§ 135. Comments. — While general terms are used in the Con-
stitution in conferring the treaty-making power, and no express
restrictions are placed upon its exercise, it is recognized that re-
strictions upon the power may be necessarily implied; but such
restrictions must not rest on conjecture. They cannot be implied
because there might have been a sound motive for such restric-
tions, but the Constitution must be construed by its own lan-
guage. The power of taxation may also be an unlimited power,
but its existence cannot be denied or its operation limited, be-
cause it might be employed to such an extent as virtually to pro-
duce confiscation. Likewise it is no argument against the treaty-
making power, conferred in general terms, that it might be ex-
ercised imprudently or so as to produce mischief.
§ 136. Chancellor Kent's views. — Chancellor Kent declared
that treaties of peace are obligatory upon the whole nation.
"The department of the government that is entrusted by the
Constitution with the treaty-making power is competent to bind
to provide for them. The . means
must be subject to perpetual modifi-
cation and change; they must be
adapted to the existing manners,
habits, and institutions of society,
which are never stationary; to the
pressure of dangers, or necessities; to
the ends in view; to general and per-
manent operations, as well as to fugi-
tive and extraordinary emergencies.
In short, if the whole society is not to
be revolutionized at every critical
period, and remodelled in every gen-
eration, there must be left to those,
who administer the government, a
very large mass of discretionary
powers, capable of greater or less
actual expansion according to circum-
stances, and sufficiently flexible not to
involve the nation in utter destruction
from the rigid limitations imposed
upon it by an improvident jealousy.
Every power, however limited, as well
as broad, is in its own nature sus-
ceptible of abuse. No constitution
can provide perfect guards against it.
Confidence must be reposed some-
where ; and in free governments, the
ordinary securities against abuse are
found in the responsibility of rulers
to the people, and in the just exercise
of their elective franchise; and ulti-
mately in the sovereign power of
change belonging to them, in cases re-
quiring extraordinary remedies. Few
cases are to be supposed, in which a
power, however, general, will be ex-
erted for the permanent oppression
of the people. And yet, cases may
easily be put, in which a limitation
upon such a power might be found in
practice to work mischief; to incite
foreign aggression; or encourage do-
mestic disorder. The power of taxa-
tion, for instance, may be carried to a
ruinous excess; and yet, a limitation
upon that power might, in a given
case, involve the destruction of the
independence of the country." 1
Story on Constitution, sees. 424, 425.
§ 137] CONSTRUCTION OP TREATIES, ETC. 132
the national faith in its discretion, for the power to make treaties
of peace must be co-extensive 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 nego-
tiations and contracts with foreign powers. All treaties made by
that power become of absolute efficacy because they are the su-
preme 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 alienations by it
are valid because they are done by the deputed will of the nation.
The fundamental laws of a State may withhold from the execu-
tive department the power of transferring what belongs to the
States, but if there be no express provision of that kind, the in-
ference is that it has confided to the department charged with
the power of making treaties a discretion commensurate with all
the great interests and wants and necessities of the nation. ' ' 73
Mr. Cooley says: "The President has power by and with the
consent of the Senate, to make treaties, provided two-thirds of
the Senators concur. The Constitution imposes no restriction
upon this power, but it is subject to the implied restriction that
nothing can be done under it which changes the Constitution of
the country or robs a Department of the Government or any of
the States of its constitutional authority. ' ' 74
§ 137. Other expressions. — William Pinkney, in a speech in
the House of Representatives, speaking of the power conferred
to enter into treaties with foreign powers, said: "Upon the ex-
tent of the power or the subjects upon which it may not, there is
as little room for controversy. The power is to make treaties.
The word 'treaties' is nomen generalissimum and will compre-
hend commercial treaties, unless there be a limit upon it by which
they are executed. It is the appellative, which will take in the
73 1 Kent's Commentaries, 161, 162, Constitutional Jurisprudence of the
cited with approval in Holden v. Joy, United States, p. 138.
17 Wall. 211, 21 L. ed. 523. To the 74 Constitutional Law, 3d ed., p.
same effect, see Duer's Outlines of 117.
133 TREATY-MAKING POWER AND LEGISLATIVE POWER. [ § 138
whole species, if there be nothing to limit its scope. There
is no such limit. There is not a syllable in the context of the
clause to restrict the natural import of its phraseology. The
power is left to the force of the generic term and is therefore
as wide as a treaty-making power can be. It embraces all the
varieties of treaties which it could be supposed this government
could find it necessary or proper to make, or it embraces none.
It covers the whole treaty-making ground which this govern-
ment could be expected to occupy, or not an inch of it.
"It is a just presumption, that it was designed to be coextensive
with all the exigencies of our affairs. Usage sanctions that pre-
sumption— expediency does the same. The omission of any ex-
ception to the power, the omission of the designation of a mode
by which a treaty not intended to be included within it might
otherwise be made, confirms it."75
§ 138. Difference between delegation of treaty-making power
and legislative power. — Mr. Calhoun declared that there was a
striking difference between the manner of conferring the dele-
gation of the treaty-making and that of the law-making power.
The legislative powers vested in Congress are enumerated and
specified, while the language relative to the treaty-making power
is general. "The reason," he says, "is to be found in the fact
that the treaty-making power is vested exclusively in the gov-
ernment of the United States; and, therefore, nothing more was
necessar}^ in delegating it than to specify, as is done, the por-
tion or department of the government in which it is vested.
It was, then, not only necessary, but it would have been absurd
to enumerate, specially, the powers embraced in the grant.
Very different is the case in regard to legislative powers. They
are divided between the Federal Government and State Gov-
ernments; which made it absolutely necessary, in order to draw
the line between the delegated and reserved powers, that the
one or the other should be carefully enumerated and specified;
and, as the former was intended to be but supplemental to the
latter, and to embrace the comparatively few powers which
75 Wheaton's Life of Pinkney, 523, Hauenstein v. Lynham, 100 U. S. 483,
525, 526, cited approvingly by su- 25 L. ed. 628.
preme court of United States in
§ 138] CONSTRUCTION OF TREATIES, ETC. 134
could not be either exercised at all, or, if at all, could not be
so well and safely exercised by the separate governments of the
several States, it was proper that the former, and not the latter,
should be enumerated and specified. But, although the treaty-
making power is exclusively vested and without enumeration 01
specification in the government of the United States, it is never-
theless subject to several important limitations.
"It is, in the first place, strictly limited to questions inter olios:
that is, to questions between us and foreign powers which re-
quire negotiations to adjust them. All such clearly appertain
to it. But to extend the power beyond these, be the pretext what
it may, would be to extend it beyond its allotted sphere; and,
thus, a palpable violation of the Constitution. It is, in the next
place, limited by all the provisions of the Constitution which in-
hibit certain acts from being done by the government, or any
of its departments; — of which description there are many. It is
also limited by such provisions of the Constitution as direct 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 conse-
quence of appropriations to be made by law.' This not only im-
poses 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 the Congress, the right to withhold the appro-
priations; 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 much importance. There still remains another, and more
important, limitation; but of a more general and indefinite char-
acter. 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, or the objects
for which it was formed. Among which, it seems to be settled,
that it cannot change or alter the boundary of a State, or cede
any portion of its territory, without its consent. Within these
limits, all questions which may arise between us and other powers,
be the subject matter what it may, fall within the limits of the
treaty-making power, and may be adjusted by it. ' ' 76
78 2 Calhoun's Works, 132, 135.
135 TREATIES ARE COMPACTS. [§ 138
Mr. Rawle, after declaring that the nature and extent of the
treaty-making power received a full examination in the state
conventions, says: "The most general terms are used in the con-
stitution. The powers of congress in respect to making laws
we shall find are laid under several restrictions. There are none
in respect to treaties. Although the acts of public ministers,
less immediately delegated by the people than the house of
representatives, the president constitutionally and the senate,
both constitutionally and practically, two removes from the
people, are by the treaty-making power invested with the high
and sole control over all those subjects which properly arise
from intercourse with foreign nations, and may eventually effect
important interests home. To define them in the Constitution
would have been impossible, and therefore a general term could
alone be made use of, which is, however, to be scrupulously con-
fined to its legitimate interpretation. Whatever is wanting in
an authority expressed must be sought for in principle, and to
ascertain whether the execution of the treaty-making power can
be supported, we must carefully apply to it the principles of the
Constitution from which alone the power proceeds.
"In its general sense, we can be at no loss to understand the
meaning of the word treaty. It is a compact entered into with a
foreign power, and it extends to all those matters which are gen-
erally the subjects of compact between independent nations.
Such subjects are peace, alliance, commerce, neutrality, and
others of a similar nature. To make treaties is an essential at-
tribute of a nation. One which disabled itself from the power of
making, and the capacity of observing and enforcing them when
made, would exclude itself from the international equality which
its own interests require it to preserve, and thus in many re-
spects commit an injury on itself. In modern times and among
civilized nations, we have no instances of such absurdity. The
power must then reside somewhere. Under the articles of con-
federation it was given with some restrictions, proceeding from
the nature of that imperfect compact, to congress, which then
nominally exercised both the legislative and executive powers
of general government. In our present Constitution no limita-
tions were held necessary. The, only question was where to de-
posit it. Now this must be either in congress generally, in the
§ 139] CONSTRUCTION OF TREATIES, ETC. 136
two houses exclusive of the president, in the president conjunctly
with them or one of them, or in the president alone. " 77
§ 139. Expressions of courts. — In many of the opinions of
courts in cases in which treaties have come before them for con-
struction, the broad extent of the treaty-making power is clearly
recognized. For instance, Mr. Justice Clifford observed: "Ex-
press power is given to the President, by and with the advice
and consent of the Senate, to make treaties, provided two-thirds
of the Senators present concur, and inasmuch as the power is
given in general terms, without any description of the objects
intended to be embraced within its scope, it must be assumed
that the framers of the Constitution intended that it should
extend to those objects which in the intercourse of nations had
usually been regarded as the proper subjects of negotiation and
treaty, if not inconsistent with the nature of our government,
and the relation between the States and the United States. ' ' 78
Mr. Justice Miller said: "A treaty is primarily a compact be-
tween independent nations. It depends for the enforcement of
its provisions on the interest and the honor of the governments
which are parties to it. If these fail, its infraction becomes the
subject of international negotiations and reclamations, so far
as the injured party chooses to seek redress, which may in the
end be enforced by actual war. It is obvious that with all this,
the judicial courts have nothing to do and can give no redress.
But a treaty may also contain provisions which confer certain
rights upon the citizens or subjects of one of the nations residing
in the territorial limits of the other, which partake of the nature
of municipal law, and which are capable of enforcement as be-
tween private parties in the courts of the country. ' ' 79
"The power to make treaties with the Indian tribes is, as we
have seen, coextensive with the power to make treaties with
foreign nations. And it cannot be doubted that the treaty-mak-
77 Eawle's A View of the Consti- in Holmes v. Jennison, 14 Pet. 569,
tution of the United States, 1st ed., 10 L. ed. 594.
p. 57, 2d ed., p. 64. 79 Edye v. Kobertson, 112 U. S.
78 Holden v. Joy, 17 Wall. 211, 21 580, 5 Sup. Ct. Eep. 247, 28 L. ed.
L. ed. 534. See, to same effect, the 804.
language of Mr. Chief Justice Taney
137 EXTENDS TO ALL PROPER SUBJECTS OF NEGOTIATION. [§ 140
ing power is ample to cover all usual subjects of diplomacy
with different powers. ' ' 80
§ 140. Extends to all proper subjects of negotiation. — "That
the treaty power of the United States extends to all proper sub-
jects of negotiation between our government and the government
of other nations is clear. ' ' 81 Similar expressions may be found
in many cases in which, while the treaty-making power has never
been accurately denned, the wide field that it covers is fully
recognized.82
80 United States v. 43 Gallons of
Whisky, 93 U. S. 188, 23 L. ed. 846.
81 Geofroy v. Eiggs, 133 U. S. 258,
10 Sup. Ct. Rep. 295, 33 L. ed. 642.
82 "The people of the United
States, as one great political com-
munity, have willed that a certain
portion of the government, including
all foreign intercourse, and the public
relations of the nations, and all mat-
ters of a general and national char-
acter, which are specified in the Con-
stitution, should be deposited in and
exercised by a national government;
and that all matters of merely local
interest should be deposited in and
exercised by the state governments."
Waite, C. J., dissenting. Keith v.
Clark, 97 U. S. 476, 24 L. ed. 1071.
' l The United States are a sover-
eign and independent nation, and are
vested by the Constitution with the
entire control of international rela-
tions, and with all the powers of
government necessary to maintain
that control and to make it effective.
The only government of this country,
which other nations recognize or treat
with, is the government of the Union;
and the only American flag known
throughout the world is the flag of
the United States." Gray, J. Fong
Yue Ting v. United States, 149 U. S.
711, 13 Sup. Ct. Eep. 1016, 37 L. ed.
905.
"The United States is not only a
government, but it is a national gov-
ernment, and the only government in
this country that has the character of
nationality. It is invested with
power over all the foreign relations
of the country, war, peace, and nego-
tiations and intercourse with other
nations; all which are forbidden to
the state governments. ' ' Bradley, J.
Legal Tender Cases, 12 Wall. 555, 20
L. ed. 287.
"While under our Constitution and
form of government the great mass
of local matters is controlled by local
authorities, the United States, in
their relation to foreign countries
and their subjects or citizens are one
nation, invested with powers which
belong to independent nations, the
exercise of which can be invoked for
the maintenance of its absolute inde-
pendence and security throughout its
entire territory." Field, J. The
Chinese Exclusion Case, 130 U. S. 604,
9 Sup. Ct. Eep. 623, 32 L. ed. 1068.
"In its treaties and conventions
with foreign nations this government
is a unit. ' ' Brown, J. Downes v.
Bidwell, 182 U. S. 263, 21 Sup. Ct.
Eep. 770, 45 L. ed. 1097.
"The American states, as well as
the American people, have believed
a close and firm union to be essential
to the liberty and to their happiness.
141]
CONSTRUCTION OF TREATIES, ETC.
138
§ 141. Comments. — By the Constitution, the United States is
a sovereign and independent nation, and it is the only government
recognized by the Constitution as possessing a national charac-
ter, and to it are intrusted all the powers that relate to inter-
course with other nations. It is one nation, and in all treaties
which it makes, it is a unit. It is the will of the people of the
United States, as expressed in their Constitution, that that branch
of sovereignty which has to do with foreign intercourse, and the
relations that one nation bears to another, by treaty or interna-
tional law, should be vested in the national government. It is
the only government that is capable of managing the interests of
the American people, in foreign relations, while to the state gov-
ernments are left all matters of purely local interest. The na-
tional government, being invested with the powers that appertain
to independent nations, may, in dealing with foreign nations, ex-
ercise such powers as may be necessary for the maintenance of
its independence and security.
They have been taught by experience
that this Union cannot exist without
a government for the whole; and they
have been taught by the same experi-
ence that this government would be a
mere shadow that must disappoint all
their hopes, unless invested with large
portions of that sovereignty which be-
longs to independent states. Under
the influence of this opinion, and thus
instructed by experience, the Ameri-
can people, in the conventions of
their respective states, adopt the pres-
ent constitution."
"That the United States form, for
many, and for most important pur-
poses, a single nation, has not yet
been denied. In war, we are one
people. In making peace, we are one
people. In all commercial regula-
tions, we are one and the same people.
In many other respects, the American
people are one; and the government
which is alone capable of controlling
and managing their interests in all
these respects, is the government of
the Union. It is their government,
and in that character they have no
other. ' ' Marshall, C. J. Cohen v.
Virginia, 6 Wheat. 380-413, 5 L. ed.
259.
* ' 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."
Field, J. In re Eoss, 140 U. S. 463,
11 Sup. Ct. Eep. 897, 35 L. ed. 581.
1 ' The subject of treaties .... is
to be determined by the law of na-
tions." Iredell, J. Ware v. Hyl-
ton, 3 Ball. 261, 1 L. ed. 568.
"One of the ordinary incidents of
a treaty is the cession of territory."
Brown, J. De Lima v. Bidwell, 182
U. S. 195, 21 Sup. Ct. Eep. 743, 45
L. ed. 1041.
"By the stipulations of a treaty are
to be understood its language and ap-
parent intention manifested in the
139
VIEWS OF MR. BUTLER.
[§ 142
§ 142. Views of Mr. Butler.— Mr. Butler, who has written a
valuable treatise on the treaty-making power of the United
States, states his belief to be that the government of the United
States is fully endowed with all the essential attributes of sov-
ereignty, and that he feels justified in expressing the follow-
ing opinion:
"First: That the treaty-making power of the United States,
as vested in the Central Government, is derived not only from
the powers expressly conferred by the Constitution, but that it is
also possessed by that Government as an attribute of sovereignty,
and that it extends to every subject which can be the basis of
negotiation and contract between any of the sovereign powers of
the world, or in regard to which the several States of the Union
themselves could have negotiated and contracted if the Consti-
tution had not expressly prohibited the States from exercising
the treaty-making power in any manner whatever and vested that
power exclusively in, and expressly delegated it to, the Federal
Government.
instrument, with a reference to the
contracting parties, the subject-mat-
ter, and the persons on whom it is to
operate. ' ' Baldwin, J. United
States v. Arredondo, 6 Pet. 710, 8
L. ed. 547.
"No one can doubt that a treaty
may stipulate that certain acts shall
be done by the executive; and others
by the judiciary." Chase, J. Ware
v. Hylton, 3 Ball. 244, 1 L. ed. 568.
"I admit that a treaty, when exe-
cuted pursuant to full power, is valid
and obligatory, in the point of moral
obligation, on all, as well as on the
legislative, executive, and judicial de-
partments (so far as the authority of
either extends), which in regard to
the last, must, in this respect, be very
limited, as on every individual of the
nation, unconnected officially with
either; because it is a promise in
effect by the whole nation to another
nation, and if not in fact complied
with, unless there be valid reasons for
noncompliance, the public faith is
violated." Iredell, J. Ware v. Hyl-
ton, 3 Dall. 272, 1 L. ed. 568.
1 ' This court is bound to give effect
to the stipulations of a treaty in the
manner and to the extent which the
parties have declared, and not other-
wise: We are not at liberty to dis-
pense with any of the conditions and
requirements of the treaty, or to take
away any qualification or integral
part of any stipulation, upon any
notion of equity or general conve-
nience, or substantial justice. The
terms which the parties have chosen
to fix, the forms which they have pre-
scribed, and the circumstances under
which they are to have operation, rest
in the exclusive discretion of the con-
tracting parties, and whether they be-
long to the essence or the model parts
of the treaty, equally give the rule to
judicial tribunals." Story, J. The
Amiable Isabella, 6 Wheat. 72, 5 L. ed.
191.
§ 143] CONSTRUCTION OP TREATIES, ETC. 140
"Second: That this power exists in, and can be exercised by,
the National Government, whenever foreign relations of any kind
are established with any other sovereign power, in regulating by
treaty the use of property belonging to States or ttye citizens
thereof, such as canals, railroads, fisheries, public lands, mining
claims, etc. ; in regulating the descent or possession of property
within the otherwise exclusive jurisdiction of States; in sur-
rendering citizens and inhabitants of States to foreign powers
for punishment of crimes committed outside of the jurisdiction of
the United States or of any State or territory thereof; in fact,
that the power of the United States to enter into treaty stipula-
tions in regard to all matters, which can properly be the subject
of negotiation between sovereign states, is practically unlimited,
and that in no case is the sanction, aid or consent of any State
necessary to validate the treaty or to enforce its provisions.
"Third: That the power to legislate in regard to all matters
affected by treaty stipulations and relations is co-extensive with
the treaty-making power, and that acts of Congress enforcing
such stipulations which, in the absence of treaty stipulations,
would be unconstitutional as infringing upon the powers reserved
to the States, are constitutional, and can be enforced, even though
they may conflict with State laws or provisions of State constitu-
tions.
"Fourth: That all provisions in State statutes or constitu-
tions which in any way conflict with any treaty stipulations,
whether they have been made prior or subsequent thereto, must
give way to the provisions of the treaty, or act of Congress based
on and enforcing the same, even if such provisions relate to mat-
ters wholly within State jurisdiction. ' ' 83
§ 143. Comments. — The treaty-making power must exist
somewhere. Power is divided between the federal and state gov-
ernments, and all power not granted is reserved to the people.
The United States is a nation, and the only sovereignty that
foreign powers can recognize. The constitution does not define
nor limit the kind of treaties that can be made. The treaty power
is in a measure incidental to the war power, and under the neces-
sity for national preservation, or even for national benefit, many
things can be done that are not explicitly enumerated in the
83 1 Butler's Treaty-making Power of the United States, p. 5, sec. 3.
141 PANAMA CANAL ZONE. [§ 144
constitution. But, still, with all that, it cannot be said that the
treaty-making power is unlimited. What the limits are, no one
can correctly state, and it is possible that no treaty will ever be
made in which the power to make the treaty will be seriously
questioned. But if there ever appears a clear case in which a
treaty conflicts with the Constitution, then either the Constitu-
tion or the treaty must govern, and there can be little doubt that
in such a case the treaty would yield to the Constitution. All
that can be safely said is that the treaty power is broad and
comprehensive, and extends to all matters of governmental con-
cern that do not conflict with the Constitution, which after all
is not saying much, as it still leaves open the question of what
is a conflict. But, happily, the question has never arisen, and it
is doubtful if it ever will.
§ 144. Panama canal zone. — A suit was commenced by a
citizen of Illinois to restrain the Secretary of the Treasury from
paying out money for the purchase of property for the con-
struction of a canal at Panama, from borrowing money on the
credit of the United States, and from issuing bonds or making
any payments under the congressional act providing for the ac-
quisition of the property. The supreme court of the United
States said there were many objections to the bill. "Among
them are these: Does plaintiff show sufficient pecuniary interest
in the subject matter? Is the suit not really one against the
government, which has not consented to be sued ? Is it any more
than an appeal to the courts for an exercise of governmental
powers which belong exclusively to Congress?" The court said
that it would not stop to consider these or similar objections,
but that its passing of them in silence should not be taken as
even an implied ruling against their sufficiency, but that it pre-
ferred to base its decision on the general scope of the bill.
The contention was made that title was not acquired as had been
provided by a prior act of Congress, by treaty with the Republic
of Colombia. The Republic of Panama seceding from the Re-
public of Colombia was recognized as a nation by the President,
and a treaty with it ceding the canal zone was properly ratified.
Several acts were passed by Congress based upon the title of the
United States which it had acquired by a treaty with the Republic
of Panama. The court held that a subsequent ratification was
§§145, 146] CONSTRUCTION OF TREATIES, ETC. 142
equivalent to original authority, and that "It is too late in the
history of the United States to question the right of acquiring
title by treaty." The title of the United States was not in any
manner affected because the treaty omitted some of the technical
terms used in ordinary conveyances of real estate,, nor because
it failed to define the exact boundary of the canal zone, where
the description was sufficient for identification, and by the con-
current action of the two nations which alone were interested,
the boundaries had been practically defined.84
§ 145. Right to attend public schools. — What rights have
alien children under treaty provisions to attend the public schools
of a state and what power have the state or municipal authorities
to provide separate schools for the children of any particular
nationality, or to exclude them from the schools altogether?
These questions involve to the fullest degree the extent of the
treaty-making power of the United States on the» one hand and
the police power or powers to regulate its own internal affairs by
the state on the other. This question recently arose in California,
and became the subject of diplomatic correspondence and negotia-
tion between the Department of State and the representatives of
the Empire of Japan, and finally resulted in the United States
commencing a suit in equity to enforce what were claimed to be
rights guaranteed by a treaty.
§ 146. Treaty provisions. — The treaty of November 22, 1894,
between the United States and Japan provided, in the first
article :
"The citizens or subjects of each of the two High Contracting
Parties shall have full liberty to enter, travel, or reside in any
part of the territory of the other Contracting Party, and shall
enjoy full and perfect protection for their persons and prop-
erty
"In whatever relates to rights of residence and travel; to the
possession of goods and effects of any kind; to the succession
to personal estate, by will or otherwise, and the disposal of
property of any sort and in any manner whatsoever which they
may lawfully acquire, the citizens or subjects of each Contract-
ing Party shall enjoy in the territories of the other the same
84 Wilson v. Shaw, 204 U. S. 24, 51 L. ed. 351.
143 CONSTITUTION AND STATUTES OF CALIFORNIA. [§ 147
privileges, liberties, and rights, and shall be subject to no higher
imposts or charges in these respects than native citizens or sub-
jects or citizens or subjects of the most favored nation."
§ 147. Constitution and statutes of California. — The Consti-
tution of the state of California provides, in article 9 :
"SECTION 1. A general diffusion of knowledge and intelli-
gence being essential to the preservation of the rights and liber-
ties of the people, the Legislature shall encourage by all suitable
means the promotion of intellectual, scientific, moral, and agricul-
tural improvement."
"SEC. 5. The Legislature shall provide for a system of com-
mon schools, by which a free school shall be kept up and sup-
ported in each district at least six months in every year, after the
first year in which a school has been established.
"SEC. 6. The public school system shall include primary and
grammar schools, and such high schools, evening schools, normal
schools, and technical schools as may be established by the Legis-
lature, or by municipal or district authority. The entire revenue
derived from the State school fund and from the general State
school tax shall be applied exclusively to the support of the
primary and grammar school."
The public school system required by the Constitution is es-
tablished by statutes of California, which provide that the state
controller must each year "estimate the amount necessary to
raise the sum of seven dollars for each census child between
the ages of five and seventeen years in the said State of Cali-
fornia, which shall be the amount necessary to be raised by
ad valorem tax for the school purposes during the year."
The statutes also provide that the board of education of a city
shall have authority "to establish and enforce all necessary rules
and regulations for the government and efficiency of the schools
[in that city] and for carrying into effect the school system; to
remedy truancy; and to compel attendance at school of children
between the ages of six and fourteen years, who may be found
idle in public places during school hours."
The Political Code, in the provision relative to schools, de-
clares: "Every school, unless otherwise provided by law, must
be open for the admission of all children between six and twenty-
one years of age residing in the district, and the board of school
§ 148] CONSTRUCTION OF TREATIES, ETC. 144
trustees, or city board of education, have power to admit adults
and children not residing in the district, whenever good reasons
exist therefor. Trustees shall have the power to exclude chil-
dren of filthy or vicious habits, or children suffering from con-
tagious or infectious diseases, and also to establish separate
schools for Indian children and for children of Mongolian or
Chinese descent. When such separate schools are established,
Indian, Chinese, or Mongolian children must not be admitted into
any other school. ' ' 85
§ 148. Resolution as to Japanese children. — On the llth of
October, 1906, the board of education of San Francisco adopted
this resolution: "Resolved, That in accordance with Article X,
section 1662, of the school law of California, principals are hereby
directed to send all Chinese, Japanese, or Korean children to
the Oriental Public School, situated on the south side of Clay
street, between Powell and Mason streets, on and after Monday.
October 15, 1906."
By the school system thus established school privileges were pro-
vided for all resident children, resident as well as alien, and in
estimating the amount to be raised by taxation for school pur-
poses all resident children were included, as likewise the fund
for the support of the schools was to be secured by taxation upon
the property of all residents, including both aliens and citizens.
The law provided for the compulsory attendance of all resident
children, whether of aliens or of citizens, but under the resolution
of the board of education while free admission to schools in
the proximity of their homes to the children of resident aliens
of all other nationalities was given, the children of Indians,
Chinese and Japanese were excluded from these schools. It is
true that the same character of education was given to the
Japanese children who might attend the Oriental school, but un-
less Japanese children should consent to attend such school or
should be forced to attend, they would be deprived of an educa-
tion furnished by the government. It will be noticed that the
exclusion of Japanese children was confined to the primary and
grammar grades, but they were admitted to the higher grades.
The claim made by the government of Japan was that as the
children of resident citizens of other foreign countries were ad-
85 Cal. Pol. Code, sec. 1662.
145
DEBATE IN UNITED STATES SENATE.
[§ 149
mitted to the public schools, the exclusion of citizens of Japan
residing in the United States constituted a denial of the same
privileges, liberties and rights relating to the right of residence
as were accorded to the citizens or subjects of the most favored
nation.
§ 149. Debate in United States Senate. — The subject attracted
much attention throughout the United States, and was debated
ably both in the Senate 8G and the House of Representatives. In
86 The resolution referred to in
the text was called up for debate
on December 12, 1906, and the fol-
lowing discussion took place.
"Mr. RAYNER. Mr. President,
the proposition covered by this resolu-
tion is to my mind a most important
one. The President has stated in his
message that the Federal Government
possesses some power in connection
with the subject-matter set forth in
the resolution, and that everything
within his power shall be done and
all of the forces, military and civil, of
the United States, which he may law-
fully employ will be employed for
that purpose. It is very important
therefore that we should know, and
the country should know, and the
President should understand, whether
he has any power in the premises at
all, because it is quite a serious mat-
ter in view of the great calamity that
has lately befallen the city of San
Francisco for the President to con-
template the bombarding of the city
at this time, and to declare war
against the boards of county school
trustees of California, if there is no
justification or pretext upon which
such ferocious proceedings can be
undertaken.
"With great respect and deference
to the President, he is exercising a
great many functions — executive,
legislative, and judicial, lawful and
Treaties — 10
unlawful, constitutional and unconsti-
tutional. If he is possessed of the
idea that he is the supervisor of all
of the public schools of the various
States of the Union, and he seems
to be impressed with this idea, be-
cause in the very last paragraph of
his message he recommends to Con-
gress the establishment of shooting
galleries in all of the large public
schools of the country, we must either
disabuse his mind of this fancy or
we must let him know that we agree
with him as to the omnipotence of his
jurisdiction. If he can take posses-
sion of the public schools of Califor-
nia and compel the State to admit to
them Japanese ' students contrary to
the laws of California, he could with
equal propriety send us an amend-
ment to the Santo Domingo treaty
and demand the admission of the
negro children of Santo Domingo into
the white schools of South Carolina or
of any other State of the Union. Of
course, if the people have come to the
conclusion that everything that the
President recommends is right, then
there is hardly any use in contesting
any of his propositions or recommen-
dations, and instead of conferring
upon him the power to give Congress
information of the state of the
Union, we might confer upon him
the function of furnishing his own
peculiar views upon the entire state
§ 149]
CONSTRUCTION OF TREATIES, ETC.
146
the Senate, Senator Rayner, of Maryland, on December 4, 1906,
introduced this resolution: "Resolved, That in the opinion of the
Senate this Government has no right to enter into any treaty
of the universe and recommend-
ing any improvements or changes in
the general plan of creation that he
may deem expedient, from the cradle
to the grave. In fact, the President,
upon page 29 of his message, antici-
pates the cradle and makes a recom-
mendation upon the state of the
Union that tends to place in his hands
the establishment of the birth rate of
the country. Now, if we can only
supplement this function by giving
him complete jurisdiction over the
death rate we will then have a ruler
whose ubiquity is uncircumscribed and
whose unlimited possibilities are be-
yond the reach of human contempla-
tion.
"I believe that there is a sufficient
residuum of common sense and inde-
pendent thought in the American peo-
ple to keep the Executive within the
prerogatives of his office and to let
him quietly and respectfully under-
stand that the Executive chair is not
exactly the place from which to de-
liver exhortations or a course of di-
dactics upon either the natural rights
or the infirmities of the human race,
and that in his messages and recom-
mendations he ought to confine him-
self to the functions prescribed by the
Constitution.
"I desire to say, in passing, that 1
coincide with everything that the Pres-
ident says in praise of the people of
Japan. In the war between Japan
and Eussia my sympathies were en-
tirely with the Government of Japan,
and whatever he says in honor of its
marvelous race meets with my own
hearty commendation. I always
thought it was a great shame that
through the kindly and well-inten-
tioned offices of the President, Japan
should have been overpowered in the
conference room when she had been
victorious in every battle upon the
land and on the sea, and I think that
the dauntless courage and the almost
superhuman heroism, against over-
whelming odds, of her military and
naval forces is without a parallel
upon the pages of ancient or modern
history. I propose to discuss the
question under consideration entirely
outside of the particular circum-
stances that environ it, upon general
grounds of constitutional law, and
certainly with no feeling of hostility
upon my part toward this wonderful
people with whom this controversy has
arisen.
"THE TREATY WITH JAPAN — COMPARI-
SON WITH CHINESE TREATY.
"In my brief argument that I shall
address to this body I shall plant my-
self upon two propositions:
' ' First, that there is no provision
whatever in the treaty with Japan
that confers the right that the Presi-
dent speaks of, or gives to the Gov-
ernment of Japan the privileges that
it claims in connection with the public
school system of California or of any
other State.
' ' Secondly, the more important
question, if there was such a provision
in this treaty, or any other treaty con-
ferring this right, the treaty would
be void and without any authority up-
on the part of the United States to
make it, and in violation of the Con-
stitution and the treaty-making power
of the Government.
147
DEBATE IN UNITED STATES SENATE.
[§ 149
with any foreign government relating in any manner to any
of the public school systems of any of the States of the Union;
and
' ' The first step that it is necessary
for me to take in this discussion is to
quote the provisions of the treaty with
Japan that have been held to be ap-
plicable to the subject in hand, the
ratifications of which treaty were ex-
changed by the respective Govern-
ments on the 21st of March, 1895. I
win ask the Secretary kindly to read
those provisions. It will take but a
moment.
"The VICE-PRESIDENT. With-
out objection, the Secretary will read
as requested.
' ' The Secretary read as follows :
" 'ARTICLE I. The citizens or sub-
jects of each of the two high contract-
ing parties shall have full liberty to
enter, travel, or reside in any part of
the territories of the other contracting
party, and shall enjoy full and per-
fect protection for their persons and
property.
1 ' ' They shall have free access to the
courts of justice in pursuit and de-
fence of their rights; they shall be at
liberty equally with native citizens or
subjects to choose and employ lawyers,
advocates, and representatives to pur-
sue and defend their rights before
such courts, and in all other matters
connected with the administration of
justice they shall enjoy all the rights
and privileges enjoyed by native citi-
zens or subjects.
' ' ' In whatever relates to rights of
residence and travel; to the possession
of goods and effects of any kind ; to
the succession to personal estate, by
will or otherwise, and the disposal of
property of any sort and in any man-
ner whatsoever which they may law-
fully acquire, the citizens or subjects
of each contracting party shall enjoy
in the territories of the other the same
privileges, liberties, and rights, and
shall be subject to no higher imposts
or charges in these respects than na-
tive citizens or subjects or citizens or
subjects of the most favored nation.
The citizens or subjects of each of the
contracting parties shall enjoy in the
territories of the other entire liberty
of conscience, and subject to the laws,
ordinances, and regulations, shall en-
joy the right of private or public exer-
cise of their worship, and also the
right of burying their respective coun-
trymen, according to their religious
customs, in such suitable and conve-
nient places as may be established and
maintained for that purpose.
t < t They shall not be compelled, un-
der any pretext whatsoever, to pay
any charges or taxes other or higher
than those that are, or may be paid
by native citizens or subjects or citi-
zens or subjects of the most favored
nation.
' ' ' The citizens or subjects of either
of the contracting parties residing in
the territories of the other shall be
exempt from all compulsory military
service whatsoever, whether in the
Army, Navy, National Guard, or Mili-
tia; from all contributions imposed
in lieu of personal service; and from
all forced loans or military exactions
or contributions.'
11 'ARTICLE XIV. The high con-
tracting parties agree that, in all that
concerns commerce and navigation,
any privilege, favor, or immunity
which either high contracting party
has actually granted, or may herein-
after grant, to the Government, ships,
149]
CONSTRUCTION OP TREATIES, ETC.
148
"Resolved, further, That in the opinion of the Senate there is
no provision in the treaty between the United States and the
Government of Japan that relates in any manner to this sub-
citizens, or subjects of any other
State, shall be extended to the Govern-
ment, ships, citizens, or subjects of the
other high contracting party, gratui-
tously, if the concession in favor of
that other State shall have been
gratuitous, and on the same or equiva-
lent conditions if the concession shall
have been conditional; it being their
intention that the trade and naviga-
tion of each country shall be placed,
in all respects, by the other upon the
footing of the most favored nation. '
"Mr. KAYNEE. There is not a
clause or a line of this treaty that
contains by expression or intendment
the slightest reference to the public
school systems of any of the States
of the Union, or confers any rights
whatever upon the citizens of Japan
to enjoy the privileges of their pub-
lic educational institutions. There is
not a clause or a line, although I un-
derstand that the President has been
advised to the contrary, that, to the
professional mind, would admit of
such a construction. The most liberal
interpretation of any of its terms
does not allow such an interpolation
or insertion to be made. The treaty
does not even contain the most-fav-
ored-nation clause, except in refer-
ence to the particular objects that are
therein specifically enumerated.
"If I have made a mistake upon
this point let some Senator upon the
floor or some of the President's legal
advisers upon the treaty refer me to
the clause that carries with it such a
construction. Let the President eluci-
date his message upon this point and
give us the language in the treaty that
authorized him to state that he had
any power or jurisdiction over this
subject whatever. It cannot be done,
because here is the treaty, and no one
arises here to justify his construction
of it. If there is any decision in the
United States that holds that any of
the rights granted by the treaty carry
with them the privilege to the sub-
jects of Japan of even partaking of
the advantages of the educational sys-
tem of our States, let us have that de-
cision. I have examined them all very
carefully that relate to treaties and I
find no authority to sustain such a
proposition.
' ' Now, let me call your attention to
a very peculiar circumstance, and that
is the Burlingame treaty, which was
made with China, because that does
contain such a provision. It is only
a few lines. The Burlingame treaty
with China, which was proclaimed on
February 5, 1870, has the following
provision in it:
" 'ARTICLE VII. Citizens of the
United States shall enjoy all the priv-
ileges of the public educational insti-
tutions under the control of the Gov-
ernment of China, and, reciprocally,
Chinese subjects shall enjoy all the
privileges of the public educational
institutions under the control of
the Government of the United States
which are enjoyed in the respec-
tive countries by citizens or sub-
jects of the most-favored nation.
The citizens of the United States may
freely establish and maintain schools
within the Empire of China at those
places 'where foreigners are by treaty
permitted to reside, and, reciprocally,
Chinese subjects may enjoy the same
149
DEBATE IN UNITED STATES SENATE.
[§ 149
;ject or in any way interferes with the right of the State of Cali-
fornia to conduct and administer its system of public schools in
accordance with its own legislation; and
privileges and immunities in the
United States.'
" 'Of the United States.' It does
not say l of the States, ' but of the
United States.
"Mr. BLACKBURN. That is a
distinction. ,
"Mr. EARNER. I say that is a
distinction. I am coming to that.
Nevertheless it contains a provision
that the Japanese treaty does not con-
tain. The Japanese treaty does not
give any rights to any public educa-
tional institution controlled by the
United States.
"Now, as I was going to say, the
Japanese treaty contains no such pro-
vision as this, and the favored clause
does not cover it.
"Mr. FORAKER. Mr. President —
' ' The VICE-PRESIDENT. Does
the Senator from Maryland yield to
the Senator from Ohio?
"Mr. RAYNER. I do.
"Mr. FORAKER. If it would not
interrupt the Senator, I would ask
him if he can state the respective
dates of 'those two treaties?
"Mr. RAYNER. The Burlingame
treaty, February 5, 1870. The ratifi-
cations of the Japanese treaty were
exchanged by the respective govern-
ments on the 21st of March, 1895,
twenty-five years afterwards, and
there is not a word of it in this Japan-
ese treaty. The favored-nation clause
does not cover it, because this clause
is restricted to the objects that are
specified in the treaty and no one of
these objects relates to educational
privileges; and even if there had been
a provision in the Japanese treaty
similar to the one in the Chinese
treaty, it would not apply to this
case, because the treaty with China
confers educational privileges in edu-
cational institutions under the control
of the Government of the United
States, and neither the educational in-
stitutions of California nor of any
other State of the Union are under the
control of the United States.
1 ' The educational institutions of the
States are not under the control
of the Government of the United
States, and therefore, by virtue of
this provision in this treaty, the Chi-
nese enjoy no privileges at all. There-
fore, if this clause had been incor-
porated in the Japanese treaty, as I
shall show a little farther on, it
would not cover the proposition we are
now discussing.
"Mr. FORAKER. Mr. President—
' ' The VICE-PRESIDENT. Does
the Senator from Maryland yield
further to the Senator from Ohio?
"Mr. RAYNER. I do.
"Mr. FORAKER. I wish to call
the Senator's attention to the fact
that the United States Government
has no educational institutions as
such, and that immediately following
the ratification of the treaty with
China, and ever since that, under the
clauses granting certain exceptions,
Chinese students have been entitled,
except as it has been modified by
treaty since, to come to this country
and seek education in the institutions
that are situated within the States
and are not at all under the control
of the United States Government.
' ' Mr. RAYNER. There is no doubt
about that proposition. Any of the
States may admit any Chinese or Jap-
§ 149]
CONSTRUCTION OF TREATIES, ETC.
150
"Resolved, further, That it is the duty of the President of the
United States to notify the Government of Japan and notify any
foreign government with whom the question may arise that the
anese student or any other sort if they
choose. That is entirely within the
province of the State, but the ques-
tion here is a question of alleged dis-
crimination in the public school sys-
tem of California. Massachusetts or
any other State of the Union has a
perfect right to admit any Chinese
or Japanese who want to come. That
does not affect the question, I re-
spectfully submit, that I am discuss-
ing. I absolutely deny that the ad-
mission of these students into the edu-
cational institutions of the State is in
compliance with and in furtherance of
the treaty.
"I might rest this entire subject
right here, because this is an end of
the claim of Japan if the treaty does
not, either by expression or intend-
ment, contain the controverted matter,
but I have arisen for a larger purpose
and a deeper inquiry; and inasmuch
as what has taken place here may
occur over and over again under the
treaty-making power of the United
States, I shall now proceed to the more
important proposition, and that is
that this Government has no power
under the Constitution of the United
States to make any treaty with any
foreign government covering the sub-
ject in question, or overriding the
legislation of any State of the Union
in connection therewith.
"THE ISSUES INVOLVED IN THE CON-
TROVERSY.
"Now, let me quote — because I
must say that to me it has been the
most interesting subject in constitu-
tional law, at least that I have ever
examined or been interested in — the
sixth article of the Constitution. It
is not an academic discussion; it is
likely to occur over and over again
with all our oriental possessions, be-
cause if the President persists in his
purpose, the day will come when he
will demand that he has the right,
either under the treaty-making power
or under the amendments to the Con-
stitution, to exercise this privilege in
connection with the admission of for-
eign students into the public educa-
tional institutions of the States.
"Now, one may read this article
of the Constitution without under-
standing it. Just read it. Let a
layman read it. It leaves an im-
pression upon the mind of every
man who has not studied the Consti-
tution that the treaty overrides the
reserved rights of the States when-
ever it comes in contact with them.
No matter how brilliant the lawyer
may be, no matter what his talents or
resources may consist of, I do not
care for the opinion of anyone who
has not thoroughly mastered and
analyzed the authorities upon this
subject and made the proper dis-
criminations between them:
1 ' ' 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 — '
"Now, that is the distinction that
the extreme school plants itself on
between these two propositions.
When it speaks of laws, it says laws
which shall be made in pursuance of
the Constitution. When the Consti-
tution speaks of treaties, it says that
151
DEBATE IN UNITED STATES SENATE.
:§ 149
public educational institutions of the States are not within the
jurisdiction of the United States, and that the United States has
no power to regulate or supervise their administration."
all treaties which shall be made under
the authority not of the Constitution,
but of the United States. I shall, I
think, demonstrate within a few
moments that there is no possible dis-
tinction in the authorities between
these two clauses.
''The sixth article, which lies at
the bottom of this controversy, reads
partly as follows:
II 'ARTICLE VI. 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 author-
ity of the United States, shall be the
supreme law of the land, and the
judges in every State shall be bound
thereby, anything in the constitution
or laws of any State to the contrary
notwithstanding. '
I 1 1 plant myself firmly and unal-
terably upon the proposition that we
can make no treaty that violates any
of the provisions of the Constitution
of the United States, that the treaty-
making power in the sixth article
must be construed in pari materia
with all the- other provisions contained
in the Constitution, and if the treaty
comes in conflict with any of the limi-
tations of the instrument the treaty
must yield and the Constitution pre-
vail.
"As a corollary of this proposition
I plant myself upon the doctrine
that any treaty that violates Article
X of the Constitution and infringes
upon the reserved rights of the States
which have not been delegated to the
General Government, and embraces
subjects that belong to the States,
and that are not necessary to carry
out the purposes of the Government
as defined in the Constitution, is ultra
vires and not within the capacity of
the Government to make.
"It is my opinion that this subject
involves one of the most interesting
problems that has ever been before
this body, and that the suggestion in
the message of the President, with
great respect to him, is not of the
slightest value here, because in order
to arrive at a proper conclusion upon
this important inquiry it is necessary
to assiduously examine the great
mass of precedents, and authorities,
and decisions that have been rendered
upon the subject, and I am quite sure
that I am entirely within bounds
when I say that the President has not
undertaken this task.
"THE SEVERAL SCHOOLS OF CONSTRUC-
TION.
1 1 There are two separate schools
of construction upon the subject at
issue. These schools are professional
schools and schools of commentators
and text-writers upon the Constitu-
tion, and it is not entirely accurate
to designate them as the respective
advocates of national and States'
rights systems.
"One of these schools claim that
the treaty-making power is an in-
herent element of sovereignty, and
though it is a conferred power in
the Constitution it would exist as an
essential attribute of this Govern-
ment without delegation, and that
when it is once delegated it need
not derive its authority from the
Constitution, and that whenever it
comes in conflict with the provisions
150]
CONSTRUCTION OP TREATIES, ETC.
152
§ 150. Position of the United States. — In the construction of
this treaty the first question that presented itself was as to the
extent of the rights included under the term " residence. "
of a State law or a State constitu-
tion, by the terms of Article VI of
the Constitution the treaty prevails.
Some of the adherents of this school
have proceeded to the most unfor-
tunate limits in their construction of
the treaty-making power, and have
held that this power is superior to
the Constitution and is not in any
manner governed by its inhibitions
or limitations.
"The second school stands upon
the doctrine that the treaty-making
power exists for the purpose of car-
rying out the purposes and objects
of this Government as prescribed and
defined by the Constitution, and that
no treaty is valid that violates the
Constitution or that under its pro-
visions surrenders the rights reserved
and belonging to the States.
''I am a disciple of the second
school, not alone as a party man, but
as a student of Constitutional his-
tory, and I proceed now to give the
reasons for the faith that is in me.
"The most instructive step that I
can take in this discussion is to give,
in the language of their advocates,
the two standards that separate these
two political creeds, so that the dis-
tinguishing features between them
can be clearly and fully compre-
hended and understood.
"Mr. Charles Henry Butler, the
present reporter of the Supreme
Court, and a man of great learning
and industry, in a valuable text-book
that he has written upon the treaty-
making power of the United States,
which I think is mainly wrong in the
conclusions that it reaches, but which
is full of the most interesting infor-
mation upon the subject, thus states
his own views and the views of those
who belong to the first school of
treaty-making power interpretation
that I have referred to:
" 'First. That the treaty-making
power of the United States, as vested
in the central Government, is derived
not only from the powers expressly
conferred by the Constitution, but
that it is also possessed by that Gov-
ernment as an attribute of sover-
eignty, and that it extends to every
subject which can be the basis of ne-
gotiation and contract between any
of the sovereign powers of the world,
or in regard to which the several
States of the Union themselves could
have negotiated and contracted if the
Constitution had not expressly pro-
hibited the States from exercising the
treaty-making power in any manner
whatever and vested that power ex-
clusively in and expressly delegated
it to the Federal Government.
" 'Second. That the power to leg-
islate in regard to all matters af-
fected by treaty stipulations and re-
lations is coextensive with the treaty-
making power, and that acts of Con-
gress enforcing such stipulations
which, in the absence of treaty stipu-
lations, would be unconstitutional as
infringing upon the powers reserved
to the States, are constitutional, and
can be enforced, even though they
may conflict with State laws or pro-
visions of State constitutions.
" 'Third. That all provisions in
State statutes or constitutions which
in any way conflict with any treaty
stipulations, whether they have been
made prior or subsequent thereto,
153
POSITION OF THE UNITED STATES.
[§ 150
Aside from the question of the power of the government to pro-
vide by a treaty properly expressing the privilege for the ad-
mission of alien children to the public schools of a state, there
must give way to the provisions of
the treaty, or act of Congress based
on and enforcing the same, even if
such provisions relate to matters
wholly within State jurisdiction.'
"The tenets of the school in which
I have been trained are succinctly
stated in a masterly way by that em-
inent constitutional lawyer, the Hon.
John Eandolph Tucker, in a report
that he rendered to the Forty-eighth
Congress, and which reads, in part,
as follows :
" 'The language of the Constitu-
tion of the United States which gives
the character of ' ' supreme law ' ' to
a treaty, confines it to " treaties made
under the authority of the United
States." That authority is limited
and defined by the Constitution itself.
The United States have no unlimited,
but only delegated authority. The
power to make treaties is bounded
by the same limits, which are pre-
scribed for the authority delegated
to the United States by the Constitu-
tion. To suppose that a power to
make treaties with foreign nations is
unlimited by the restraints imposed
on the power delegated to the United
States would be to assume that by
such treaty the Constitution itself
might be abrogated and the liberty
of the people secured thereby de-
stroyed. The power to contract must
be commensurate with and not tran-
scend the powers by virtue of which
the United States and their Govern-
ment exist and act. It cannot con-
tract with a foreign nation to do what
is unauthorized or forbidden by the
Constitution to be done. The power
to contract is limited by the power to
do. (3 Story on Const., sec. 1501.)
" 'It is on this principle that a
treaty cannot take away essential lib-
erties secured By the Constitution to
the people. The treaty power must
be subordinate to these. A treaty
cannot alien a State or dismember
the Union, because the Constitution
forbids both.
" 'In all such cases the legitimate
effect of a treaty is to bind the
United States to do what they are
competent to do and no more. The
United States by treaty can only
agree with another nation to perform
what they have authority to perform
under the constitutional charter
creating them. The treaty makes the
nexus which binds the faith of the
Union to do what their Constitution
gives authority to do. A treaty
made under that authority may do
this; all it attempts to do beyond
it is ultra vires — is null, and cannot
bind them./
' ' In this admirable report and
careful review of the treaty-making
power Mr. Tucker remarks that —
" 'If the treaty-making power ex-
tends to the limits that are claimed
for it by the advocates of an inherent
right, then a treaty may borrow
money, regulate commerce, coin
money, establish post-offices, and pro-
vide for raising armies and navies of
the United States, and may thus an-
nul or paralyze all the powers of Con-
gress, and admit a foreign nation to
exact, with the alternative of war, a
compliance with these sweeping stipu-
lations in the internal government of
the people of the United States.'
"I am aware of the fact that some
of the conclusions reached by this
eminent statesman in this report have
§ 150]
CONSTRUCTION OF TREATIES, ETC.
154
was the preliminary question whether the right to attend the
primary schools was a right, liberty or privilege of residence
within the meaning of the language of the treaty, and whether the
been assailed at times, but I am also
aware of the fact that the main
proposition upon which he stands,
and from which I have quoted in the
first instance, has never been im-
peached nor impugned by any Federal
or State authority that I know of.
"A TREATY CANNOT VIOLATE THE CON-
STITUTION.
' ' I want to proceed one step
further in the particular point that
I am now discussing, and I desire
to address these remarks to the ex-
treme advocates of the doctrine of
an 'unlimited treaty-making power.'
' ' Let me take subsection 8 of sec-
tion 9 of Article I of the Constitution
of the United States, which provides
'that no title of nobility shall be
granted by the United States.' Is
there anyone here that believes we
would have the right in a treaty to
grant a title of nobility to the sub-
ject of a foreign government?
''Subsection 4 of section 1 of Ar-
ticle II of the Constitution provides
'that no person except a natural-born
citizen .... shall be eligible to the
office of President, Does anyone
here believe that we could make a
treaty with a foreign power abrogat-
ing this section in its interests?
' ' Article I of the amendments pro-
vides: 'Congress shall make no law
respecting an establishment of re-
ligion or prohibiting the free exercise
thereof. ' Is there anyone of the
opinion that we could make a treaty
with a foreign nation admitting their
subject to our shores, and then, in
the same treaty, provide that they
should not have the privilege of exer-
cising their religious belief?
"Mr. President, I am talking to
the extreme advocates of this doc-
trine. I am coming to the middle
class presently. I am taking now the
doctrine of the men who claim that
the treaty-making power is an inhe-
rent power, and is not circumscribed
either by the delegated powers or by
the limitations or inhibitions of the
Constitution. I will come to the men
of more moderate views of the first
school in a few moments. I am
planting this argument now upon the
doctrine of Mr. Butler that the
treaty-making power is an inherent
power that is not governed or con-
trolled at all by the Constitution of
the United States.
"Mr. BEVERIDGE. Mr. Presi-
dent—
' ' The VICE-PRESIDENT. Does
the Senator from Maryland yield to
the Senator from Indiana?
"Mr. RAYNER. Certainly.
"Mr. BEVERIDGE. Might not
the power be inherent in sovereignty
and at the same time be limited by
the Constitution ?
"Mr. RAYNER. Never. It can-
not lie in grant and lie in sovereignty.
It must either lie in sovereignty or lie
in grant. There is no such thing as a
granted power under the Constitution
carrying within its terms an inherent
and sovereign power. I utterly deny
the suggestion of the Senator from
Indiana. Whatever inherent powers
exist have been merged forever in
the granted powers of the Constitu-
tion. I will give the Senator in a
155
POSITION OF THE UNITED STATES.
§ 150
order of the board of education directing that Japanese children
should be sent to the Oriental school, and directing that they
should be excluded from the ordinary schools provided for other
few moments any number of authori-
ties on that from the Supreme Court
of the United States that these two
powers cannot exist together. It
must be either one or the other.
"Mr. BEVERIDGE. That was
not my question, although I am happy
to hear the Senator upon that.
"Mr. RAYNER. Then I misun-
derstood the Senator.
"Mr. BEVERIDGE. The question
was, Might not the power be inherent
in sovereignty and at the same time
be limited by the prohibitions of the
Constitution?
"Mr. RAYNER. There is not an
inherent power in the Government of
the United States, because the Gov-
ernment of the United States is not
a government of inherent powers. I
deny that the Government of the
United States has any inherent powers
save the power to exist and to per-
petuate itself, except the powers con-
tained in the Constitution of the
United States, and while it might be
inherent and still limited, the fact is
it is not inherent. That answers the
question.
"Mr. CARMACK. Mr. Presi-
dent—
' ' The VICE-PRESIDENT. Does
the Senator from Maryland yield to
the Senator from Tennessee?
"Mr. RAYNER. I do.
"Mr. CARMACK. I wish to sug-
gest to the Senator from Maryland
that each of the States prior to
the formation of the Constitution of
the United States possessed this
treaty-making power, and that the
General Government possesses it now
only by reason of its delegation by
the States.
"Mr. CULBERSON. The States
possessed it inherently.
"Mr. CARMACK. They possessed
it inherently; and the General Gov-
ernment gets it by delegation from
the States.
"Mr. RAYNER. I was coming to
that proposition in a moment. I
think the Senator from Tennessee
states that proposition a little too
broadly — that is, that the States
granted to the United States all the
powers they possessed.
"Mr. CARMACK. I did not say
that.
'•Mr. RAYNER. I beg pardon.
I understood the Senator to say that
the States had granted to the United
States all the treaty-making power.
"Mr. CARMACK. No; I did not
mean that; but all the powers the
General Government possesses in that
respect are derived from the grant
by the States —
"Mr. RAYNER. Undoubtedly.
"Mr. BEVERIDGE. We cannot
hear a word over here of what is
being said on the other side of the
Chamber.
"Mr. CARMACK. That all the
treaty-making power was in the States
prior to the formation of the Con-
stitution. Each State possessed the
treaty-making power. When the
Constitution was formed the States
delegated to the General Government
the treaty-making power, and the
treaty-making power possessed by the
General Government is measured by
the extent of that delegation.
§ 150]
CONSTRUCTION OP TREATIES, ETC.
156
children, constituted a deprivation of that right, liberty or privi-
lege.
But putting by these questions, which relate only to the mean-
ing of the terms, the fundamental question arises: If the treaty
"Mr. FULTON. May I ask the
Senator from Tennessee [Mr. Car-
mack] a question's?
"The VICE-PRESIDENT. Does
the Senator from Maryland yield to
the Senator from Oregon ?
"Mr. EAYNER. I wish the Sena-
tor would ask me the question.
"Mr. FULTON. Then I will ask'
the Senator if that delegation of
power to the General Government,
when exercisable, is nevertheless not
restricted by the prohibition on the
General Government contained in the
Federal Constitution?
"Mr. RAYNER. Mr. President, I
am coming to the argument of that
question in a moment and am going
to quote authorities right upon that
point. I hope the Senator will listen
to what I shall say, which, I think,
will answer his inquiry.
"I want, first, to say something in
reference to the suggestion of the
Senator from Tennessee [Mr. Car-
mack]. Of course, the Senator from
Tennessee recollects that in the Arti-
cles of Confederation it was provided
that no treaty should be made unless
nine of the States consented; but the
suggestion made by the Senator is
absolutely correct as to the proposi-
tion upon which I stand, that all
powers of the Constitution — the
treaty-making power and very other
power — are derived from the powers
given by the States. Of course, I
cannot admit that they have given
all their treaty-making power, be-
cause they have only given the treaty-
making power in connection with the
delegated power, although the State
itself has no right to make a treaty
under the Constitution. While I can-
not admit that the States gave all
their treaty-making power, I will un-
doubtedly admit that the States gave
every treaty-making power that was
necessary for the purpose of carrying
out the delegated powers of the Con-
stitution, and there are no other
powers necessary.
"Mr. BEVERIDGE. Will the
Senator allow me?
1 ' Mr. RAYNER. In a moment. I
have examined, I think, every treaty
in existence between this Government
and every other government, and I
can — though I do not propose to do it
now, because it would take too much
time — but I can now show, and I am
willing to trace every subject-matter
in those treaties ever made with any
foreign government to some delegated
power contained in the Constitution
of the United States. I challenge the
Senator from Indiana to point me to
a single case that will show this Gov-
ernment has ever made a treaty passed
upon by the courts, and held to be
valid by the courts, that was not for
the purpose of carrying out the dele-
gated powers of the Constitution con-
ferred upon the United States.
"Mr. BEVERIDGE. Mr. Presi-
dent—
"Mr. RAYNER. Let me give one
more quotation, and then I will yield.
Section 1 of Article XIII of the
amendments to the Constitution pro-
vides that —
' l ' Neither slavery nor involuntary
servitude, except as a punishment for
crime whereof the party shall have
157
POSITION OF THE UNITED STATES.
[§ 150
was to be construed as the Japanese government contended,
or if a treaty should be made in which the United States under-
took by direct words to provide for the admission of alien chil-
been duly convicted, shall exist within
the United States or any place subject
to their jurisdiction. '
"Is this an inherent power ? Is
there any power under the treaty-
making power, except the power to
carry out the delegated powers of the
United States? According to Mr.
Butler and the various lecturers upon
the revised edition of the United
States Constitution, who agree with
him, it is claimed that the power is
not bound by the limitations of the
Constitution. I ask, is there anyone
here who believes that we could have
put a provision into the treaty of
Paris providing for a system of slav-
ery in the Philippine Islands? If it
is an inherent power, if it does not
depend upon the delegated powers, if
it is a sovereign power beyond and
above the Constitution, then we can
violate every article in the Constitu-
tion, and there would be no inhibition
upon us at all from violating this
particular provision and instituting
or continuing, as I believe we have
done anyway in a portion of the
Philippine Islands — the Senator from
Indiana will know more about that
question than I do — the system of
slavery that exists in a certain por-
tion of those islands.
"Mr. BEVEEIDGE. I want to
ask the Senator a question before he
leaves that subject.
' < The VICE-PRESIDENT. Does
the Senator from Maryland yield to
the Senator from Indiana?
"Mr. RAYNER. Certainly.
"Mr. BEVERIDGE. It was
rather an interesting statement the
Senator made, that he did not con-
cede that the States had delegated
away all of their treaty-making
power. Under section 10 of Article
I of the Constitution, what part of
the treaty-making power does the
Senator think any State has?
' < Mr. RAYNER. No State has any
treaty-making power except as pro-
vided in the Constitution. The States
have delegated to the Federal authori-
ties all the treaty-making power that
it is necessary for the Government to
have in order to carry out the dele-
gated powers of the Constitution.
"Mr. BEVERIDGE. I understood
the Senator to say a moment ago, in
answer to the Senator from Tennessee
[Mr. Carmack], that he did not con-
cede that the States had parted with
all of their treaty-making powers. I
merely call his attention to section 10
of Article I of the Constitution.
"Mr. RAYNER. I said the Con-
stitution prohibits the States from
making a treaty.
"Mr. BEVERIDGE. Certainly.
"Mr. RAYNER. The Federal
Government can make every treaty,
and the States have given the Govern-
ment the right to make every treaty
that is necessary to carry out its
delegated powers, and you must take
the treaty-making power in pari ma-
teria with the delegated powers that
are given to the Government. I can-
not make it any plainer than that.
I will give you what Mr. Adams says
on that presently, and a number of
your friends and some of my
friends — Mr. Jefferson and others —
and, I think, you will agree with me.
I have stated the proposition almost
in their identical language. I say
150]
CONSTRUCTION OF TREATIES, ETC.
158
dren to the public schools without discrimination, had the
United States power to* make such a treaty which should be para-
mount to the laws of a state? It was contended by the United
that the States have given to the
Federal Government the right to make
treaties, but they have only given it
the right to make such treaties as
carry out the delegated powers of the
Constitution, and they have never
given it the right to make any treaty
that interferes with the reserved rights
of sovereign States acting within
their own borders.
"Mr. -BEVERIDGE. Then I un-
derstand the Senator does not con-
tend that the States have reserved to
themselves at all any portion of the
treaty-making power. That is made
clear.
1 ' Mr. EAYNER. Look at the Con-
stitution; that settles the rights of
the States. The Government can
make any treaty that carries out the
purpose of the Government. My ar-
gument is that you must take the
treaty-making powers together with
the delegated powers, and you can-
not construe one independently with
the jother.
"Mr. FORAKER. Mr. President —
< * The VICE-PRESIDENT. Does
the Senator from Maryland yield to
the Senator from Ohio?
"Mr. RAYNER. I do.
"Mr. FORAKER. I only want to
remark, if I may be permitted to do
so, that the result of the Senator's
contention, as I understand, is that
that part of the old treaty-making
power which the States originally pos-
sessed has become dormant or has
been, by the provisions of the Consti-
tution, placed in abeyance, does not
belong to anybody, and cannot be ex-
ercised by any governmental authority
anywhere.
"Mr. RAYNER. The Senator
from Ohio evidently has misunder-
stood me. I will state the proposition
over again.
"Mr. FORAKER. I hope the Sen-
ator will not —
1 ' Mr. RAYNER. I want to answer
the Senator's observation. There is
no dormant power anywhere, because
the Government of the United States
contains the full treaty-making power
for the purpose of carrying out all of
its delegated powers, and there is no
dormant power any place under the
Constitution. Every power under
treaties necessary to perfect the dele-
gated powers has been parted with by
the States, and the States have parted
with their treaty-making power, but
I repeat again that the treaty-making
power must be construed in pari ma-
teria with the delegated powers.
"Mr. BACON. Will the Senator
permit me a moment?
"The VICE-PRESIDENT. Does
the Senator from Maryland yield to
the Senator from Georgia?
"Mr. RAYNER. Yes.
"Mr. BACON. In connection with
his suggestion as to whether or not
the powers are dormant, I wish to call
the attention of the Senator to the
fact that the Constitution does con-
template that there may be questions
in which a State may be interested
and which may require a compact or
a treaty which are not Federal ques-
tions; but its exercise of any power
in connection with that is restricted
and made dependent upon the consent
of Congress. I will read the section
to which I allude as illustrative of the
question propounded by the Senator
159
POSITION OP THE UNITED STATES.
[§ 150
States that the treaty with Japan did not declare the authority of
the United States to compel a state to establish or maintain a sys-
tem of public schools or to admit alien residents to its schools, but
from Ohio in connection with the con-
tention of the Senator from Mary-
land. Article 1, section 10, para-
graph 3, of the Constitution, to be
found on page 201 of the present edi-
tion of the Constitution and Manual,
reads as follows:
" 'No State shall, without the con-
sent of Congress, lay any duty of ton-
nage, keep troops, or ships of war in
time of peace, enter into any agree-
ment or compact with another State,
or with a foreign power, or engage in
war, unless actually invaded, or in
such imminent danger as will not ad-
mit of delay. '
"If the Senator will pardon me
just a moment, the point in connec-
tion, I think, with the subject under
discussion is illustrative of the fact
that it was in the contemplation of
the Constitution that there were sub-
jects-matter possible of compacts or
treaties in which the States might be
directly interested and which did not
relate to the General Government in
its Federal capacity, but which sub-
jects were in their treatment by the
States or in dealing with by the
States so restricted that there could
be no action with reference thereto
unless Congress should consent; in
other words, that there were questions
which could be and properly would be
the subjects-matter of treaties inter-
esting the States directly, but which
were subsidiary entirely to the gen-
eral power of the Government and re-
quired to be subject to its supervision.
"Mr. RAYNER. Mr. President, I
was coming to that in a moment.
While I am quite willing to submit
to any interruptions, I think there
will be plenty of questions to ask
me when I get into the cases.
"Mr. CULBERSON. Will the
Senator allow me just to read another
section of the Constitution which will
clear up this particular matter?
"The VICE-PRESIDENT. Does
the Senator from Maryland yield to
the Senator from Texas?
"Mr. RAYNER. I was going to
read all of those sections, I will say
to the Senator. I have the clause in
mind to which he refers.
"Mr. CULBERSON. What clause
is it?
"Mr. RAYNER. There are three
clauses I was going to read from the
Constitution. The first clause is in
relation to the right of the President
and the Senate to make a treaty; the
second clause the Senator from Geor
gia [Mr. Bacon] has read, and the
third clause is the clause prohibiting
a State from making a treaty.
"Mr. CULBERSON. That is the
one I desired to read.
"Mr. RAYNER. Do not misun-
derstand my purpose. I am willing
that the Senator should interrupt me.
"Mr. CULBERSON. It is very
pertinent, Mr. President, I think, in
this connection, and it would be well
to read it. It is section 10, Article I,
of the Constitution, which declares:
" 'No State shall enter into any
treaty, alliance, or confederation. '
"Mr. BEVERIDGE. That is the
section to which I specifically called
the Senator 's attention a moment ago
when the Senator ventured the re-
mark that the States had not parted
with all their treaty-making power.
150]
CONSTRUCTION OF TREATIES, ETC.
160
it was asserted by the United States that it could by treaty
assure to the resident citizens of another nation a treatment and
enjoyment of rights and privileges equal to those afforded to the
"Mr. RAYNER. Do not let the
Senator from Indiana misunderstand
that proposition. Do not let us get
him wrong —
"Mr. BEVERIDGE. No.
"Mr. EAYNEE. Because I under-
stand the Senator delivered a lecture
on that subject, and while I am
against the lecture, I do not want the
Senator from Indiana to misconstrue
what I have said on this subject. I
say, again and again, the States have
granted to the Federal Government
all their treaty-making powers that
are necessary to carry out the pur-
pose of Government as constituted by
the Constitution. That is the exact
language of Mr. Jefferson, and I can-
not improve on it. It has never been
improved on, except by Mr. Butler,
who says Jefferson has been reversed.
Jefferson has never been reversed by
anybody except Mr. Butler, and I
will take Jefferson against my friend
and the distinguished reporter of the
Supreme Court on that subject.
' * This brings me right down to the
precise point involved in this discus-
sion, and that is to the tenth article
of the amendments, which reads as
follows :
" 'ARTICLE 10. The powers not
delegated to the United States by the
Constitution, nor prohibited by it to
the States, are reserved to the States,
respectively, or to the people. '
"Have we a right to violate the
Constitution of the United States and
incorporate in a treaty powers not
delegated to the United States, pow-
ers that are not necessary and proper
for carrying into execution the pow-
ers that are delegated, and barter
away the privileges and rights re-
served to the States respectively by
virtue of the instrument and of the
tenth amendment thereto that I have
just referred to? The power of a
State to regulate its public school
system is clearly among its reserved
powers. Have we, therefore, a right
to provide in a treaty that the citizens
of foreign lands shall possess privi-
leges in the public schools of the
States that are prohibited either by
the Constitution or by the laws of the
State in which they are claimed? If
we can, in defiance of the laws and
constitution of a State incorporate
any such provision in a treaty so as
to bind the State, then we can un-
doubtedly deprive the State of every
reserved right that it possesses, and
rescind and annul its laws and its con-
stitution whenever they come in con-
flict with the treaty-making power.
I trample upon this appalling doc-
trine. If ever such a deformity as
this should creep into our judicial de-
cisions it would disfigure the Consti-
tution to such an extent that its
features would no longer be capable
of recognition. It would annul the
charter; it would frustrate the inten-
tion of the men who framed it; it
would undermine the entire frame-
work of the instrument, and it would
convert us from a constitutional gov-
ernment into a dictatorship, with the
States in abject servitude to Federal
power, and with the Executive in prac-
tical control of the destinies of the
Republic.
161
POSITION OF THE UNITED STATES.
[§ 150
citizens of any other foreign nation. Under this view, if a state
should see fit to extend privileges to alien residents as well as
to citizen residents, the state will not be allowed to discriminate
against the citizens of that country with which the treaty has
"THE LEADING AUTHORITIES UPON THE
SUBJECT.
"I want now to go over the cases.
I know it is monotonous in the Sen-
ate to read cases, and I will not read
them, because I think I can recollect
them. There are two lines of cases.
The first line is made up of the three
cases of Ware v. Hylton (3 Dallas,
199), [1 L. ed. 568], the case of
Chirac v. Chirac, from my own State
(2 Wheaton, 259), [4 L. ed. 234], and
a case in Virginia, Fairfax v. Hun-
ter (7 Cranch, 603), [3 L. ed. 453].
"Ware v. Hylton is the great case
that is quoted against the proposition
that I am arguing here now. That
case was argued by Marshall. It was
the only case that Marshall ever
argued in the Supreme Court of the
United States. It was decided by
Justices Chase, Patterson, Gushing,
Wilson, and Iredell, and the case
covers 100 pages. Let me see if I
can give it in a few words.
< * Virginia had confiscated the debts
of all British creditors. After the
Revolution Congress made a treaty
with Great Britain providing that
British subjects should have the right
to prosecute their claims in the courts
of the United States without impedi-
ments. There was a conflict between
the act of Virginia confiscating the
debts of British subjects and the
treaty of the United States giving
British subjects without impediment
the right to sue. The United States
courts held that the treaty prevailed
and that the laws of the State of
Virginia were in conflict with it and
were void. I give you that case in a
Treaties — 11
very short compass. I want to take
the cases of Fairfax v. Hunter and
Chirac v. Chirac.
"Mr. MALLORY. Mr. Presi-
dent—
"The VICE-PRESIDENT. Does
the Senator from Maryland yield to
the Senator from Florida?
"Mr. RAYNER. Certainly.
"Mr. MALLORY. In the case of
Hylton v. Ware the Supreme Court
expressly declined to give an opinion
as to whether a treaty could override
the Constitution.
"Mr. RAYNER. I am coming to
that in a minute. I have not finished
with Ware v. Hylton. I have had
Ware against Hylton in my mind for
pretty nearly forty years now, and I
am going to finish with it in forty
seconds, if I can. It occupies a hun-
dred pages in the reports; so I do
not intend to read it.
' 1 1 am coming now to the other
cases in the first line. Maryland
passed a law, and so did Virginia,
that aliens could not hold property.
The Government made a treaty with
France that aliens could hold prop-
erty in the United States. The laws
of Virginia and Maryland came into
conflict with the treaty, and the Su-
preme Court of the United States held
that the treaty prevailed. Those are
the two cases that are cited to sus-
tain the proposition that Mr. Butler
is contending for and against the
proposition that I am advocating. I
want to say one word about those
cases. The treaty referred to in Chirac
v. Chirac and in Ware v. Hylton was
made under the Articles of Confedera-
150]
CONSTRUCTION OF TREATIES, ETC.
162
been entered into. If the state grants privileges to the citizens
of one foreign country, it cannot deny to the citizens of another
country such privileges. It was not contended that the state
was obligated to supply education, but that if a state did choose
tion. It was not made under the Consti-
tution at all. If you will look at the
sixth article of the Constitution, you
will see that it ratifies all treaties
that have been made. This was one
of the treaties that it ratified, be-
cause it was a treaty under the Arti-
cles of Confederation, and, further-
more, Justice Gushing, in uniting in
the opinion of the court, says that
Virginia was a party to the treaty,
and being a party to the treaty she
could not abrogate her own act, and
she was estopped by having partici-
pated in it and having been a party
to it. We all recollect that under the
Articles of Confederation it was nec-
essary that nine States should as-
sent to a treaty before it became ef-
fective.
' ' Let me get to the second line of
cases, which the Senators from the
Pacific coast will recollect without my
going into details. Both California
and Oregon passed laws in reference
to this question. California passed a
law that no Chinese laborers should be
employed by any corporation, and
Oregon passed a law that Chinese la-
borers should not be employed upon
the public works of that State. The
question came up under the Chinese
treaty — and the cases are reported in
5 and 6 Sawyer ; they are circuit court
cases — the question came up under
the Chinese treaty, Does the treaty
prevail or does the law of California
and the law of Oregon prevail? Is
the law of California a valid law
which provides that no Chinese la-
borer shall be employed by any cor-
poration in the State of California?
Is the Oregon law a valid law which
provides that no Chinese laborer shall
be employed upon any public works
in Oregon? The Supreme Court said
no. Why? Because, they held, the
treaty having provided that Chinese
at that time should have the right to
live here, that the right lo live here
carried with it the right to labor
here; that a man cannot live without
earning a living; that if we had the
right by treaty to give them the privi-
lege of coming here, the treaty by
intendment and construction carried
with it their right to earn a living;
but the court never touched upon the
reserved rights of the States.
"Now, I want to take up the last
case I am going to quote on the other
side of this subject, because I want
to argue it fairly. I come now to
the decision in 92 United States, that
most unfortunate decision of the Su-
preme Court of the United States. It
does not trench at all upon the argu-
ment I am now making. California
provided that no woman of ill-repute
should come into the ports of Cali-
fornia. That is the Freeman case
(92 U. S.). What did the Supreme
Court decide there? As the Senator
from Wisconsin knows, they did what
they had never done before. They
went back of that statute. They
never construed the statute according
to the language of the statute, but
they held that California intended, by
that provision of her law, to exclude
Chinese women, although there was
not a word said about Chinese women
or women of any other race. It was
one of those peculiar cases in which
163
POSITION OF THE UNITED STATES.
[$
to supply education as a governmental function, it could not
discriminate, and that while the state was at liberty to maintain
a school system or not, yet if it did provide such a school system,
the schools of which alien children generally were permitted to
the Supreme Court of the United
States has gone into the motives of
a State legislature in order to de-
termine the validity of her statutes.
But, Mr. President, when they come
to decide that case they never touched
upon the reserved rights of the State.
If you will examine the Freeman
case you will see that the Supreme
Court held in that case that it was a
regulation of commerce, and that Cali-
fornia had passed a statute violat-
ing that article of the Constitution
which gives the Congress of the
United States the right to regulate
commerce with foreign nations.
"Now I want to give my cases. I
could give numbers of other cases,
but before I give my cases, I wish to
read one or two extracts from this
author whom I have quoted here upon
several occasions, to show how he con-
tradicts himself upon this point, and
how, when he is arguing against him-
self, he is finally forced to the con-
clusion that he has made a mistake,
and that you can not make a treaty
which interferes with the reserved
rights of the State; and the only
question to his mind is whether it is
a reserved right of the State. If it
is once settled that it is, when you
once admit it is a reserved right of
the State, then it cannot come within
the treaty-making power, because you
can no more violate article 10 of the
Constitution than you can violate any
other article of the Constitution in
connection with its inhibitions and
limitations.
"Let me read a very peculiar pas-
sage from this author against him-
self. I am quoting now from a hos-
tile authority to substantiate the
propositions for which I am contend-
ing, because 1 have the most eminent
authorities in the country to sustain
the propositions upon which I stand.
* ' I read from page 31 of Butler on
the Treaty-Making Power, a most in-
teresting book. If it were not all
wrong on this point it would be the
most valuable book upon the subject
that we have in the United States.
Upon page 31, section 344, of this
work we find the statement which I
shall read, made by my friend, Mr.
Butler, whom I know personally very
well, and of whom I think very
highly, and I do not intend that any
criticism of mine upon his work shall
in the slightest degree reflect upon
his great industry and talent as a law-
yer and as an author. He repre-
sents the same school that my friend
the Senator from Indiana represents
— the school that believes that we are
a government of inherent sovereignty.
' ' ' SEC. 344. State statutes upheld;
Chinese laundry cases. — It must not be
presumed, however, that the Federal
courts have always interfered to pre-
vent State action in regard to mat-
ters which are wholly under their con-
trol, and that they have used the
treaty-making power as an excuse for
interfering in their internal af-
fairs. In 1885, the same learned jus-
tice of the Supreme Court who had
declared the San Francisco queue or-
dinance invalid sustained a municipal
ordinance of San Francisco imposing
certain regulations and restrictions
upon laundries, and which was as un-
§ 150]
CONSTRUCTION OF TREATIES, ETC.
164
attend, it could not exclude the alien children of any particular
nation enjoying treaty rights. In other words, the provision of
the treaty placed no obligation upon the state, was in no sense
compulsory, but was negative and prohibitory.
doubtedly aimed directly at the Chi-
nese as the queue ordinance had been.
The Supreme Uourt held, however,
that the regulation of laundries was a
matter which came within the right
of the municipality, and that treaty
stipulations as to lights to live and
labor should not be used to prevent
the proper enforcement of municipal
regulations. '
"Upon page 56 we find the follow-
ing statement:
1 1 l The Supreme Court has, in re-
gard to treaties, as it has in regard
to Federal statutes, ever kept in view
the exclusive right of States to regu-
late their internal affairs.'
' ' Upon page 350, section 455, we
find this remarkable statement from
the same author, which seems to be in
direct conflict with almost every other
statement that he has made in this
valuable work upon this subject:
" 'SEC. 455. Power must be lim-
ited, as no unlimited powers exist.'
' i He has been arguing in 454 sec-
tions that unlimited powers exist, and
when he comes to the four hundred
and fifty-fifth section he says the pow-
ers must be limited, as no unlimited
powers exist; and in order to apol-
ogize for the remarks he has made
in the antecedent sections he goes
on to say:
f ' ' After perusing the foregoing
chapters the reader may think he is
justified in presuming that the au-
thor does not consider that there are
any limitations whatever on the treaty-
making power of the United States,
either as to the extent to or subject-
matter over which it may be exer-
cised. '
' ( I should think we were justified
in presuming so when he has argued
that question in the sections which
have preceded this section.
' ' Then says the author :
" 'Such, however, is not the case;
the fact that the United States is a
constitutional government precludes
the idea of any absolutely unlimited
power existing.'
"He has never said that before.
He continues:
' ' ' The Supreme Court has declared
that it must be admitted as to every
power of society over its members
that it is not absolute and unlimited;
and this rule applies to the exer-
cise of the treaty-making power, as it
does to every other power vested in
the Central Government. The ques-
tion is not whether the power is lim-
ited or unlimited, but at what point
do the limitations begin.'
' ' If the author had said that in the
first section, it would have saved him
the trouble of writing the greater
part of his book.
"Now, Mr. President, let me come
to the citation of my cases, and I
will finish them very briefly, al-
though it is a subject very difficult to
cover in the space I am devoting to it.
I have the cases where this identical
question has arisen — where the Su-
preme Court itself, and in approval
of State authorities, has held not
only that a reserved right of the
State does not come within the treaty-
making power, but has held that this
165
VIEWS OF MB. LEWIS.
[§ 151
§ 151. Views of Mr. Lewis.— Mr. William Draper Lewis, of
the University of Pennsylvania, said that the proper construction
of this treaty as applied to the action taken by the board of
education of San Francisco gave rise to several questions. Is
right of a State to admit a particu-
lar class of people into its educa-
tional institutions is a reserved right
of the State, and the Government has
no control over it whatever, either in
the treaty-making power or in stat-
utes.
"Let me read an extract from the
case of Geofroy v. Riggs (133 U. S.
267), [10 Sup. Ct. Eep. 295, 33 L. ed.
642], as follows:
' ' ' The treaty power, as expressed
in the Constitution, is in terms un-
limited except by those restraints
which are found in that instrument
against the action of the Government
or of its departments, and those aris-
ing from the nature of the Govern-
ment itself and of that of the States. '
"In 5 California, 381, in the case
of The People v. Gerke, the court, in
its opinion, said:
' ' ' The language which grants the
power to make treaties contains no
words of limitation; it does not fol-
low that the power is unlimited. It
must be subject to the general rule,
that an instrument is to be con-
strued so as to reconcile and give
meaning and effect to all its parts.
If it were otherwise, the most im-
portant limitation upon the powers of
the Federal Government would be in-
effectual, and the reserved rights of
the States would be subverted. This
principle of construction, as applied,
not only in reference to the Consti-
tution of the United States, but par-
ticularly in the relation of all the
rest of it to the treaty-making grant,
was recognized both by Mr. Jeffer-
son and John Adams, the two leaders
of opposite schools of construction.7
"I now refer to the case of The
People v. Gallagher, in 93 New York
Reports, page 438 [45 Am. Rep. 232],
and to the case of Roberts v. City of
Boston, 5 Gushing, 198, both of which
cases have been cited with approval
by the Supreme Court of the United
States, and in which the question
whether a separation of the races in
the public schools was a violation of
the 'privileges and immunities' guar-
anteed by the Constitution came be-
fore the courts. I quote from the
first case:
" 'The school authorities have
power, when, in their opinion, the in-
terests of education will be promoted
thereby, to establish schools for the
exclusive use of colored children; and
when such schools are established and
provided with equal facilities for edu-
cation, they may exclude colored chil-
dren from the schools provided for
the whites.'
" 'The establishment of such sepa-
rate schools for the exclusive use of
the different races is not an abridg-
ment of the "privileges or immuni-
ties ' ' preserved by the fourteenth
amendment of the Federal Constitu-
tion, nor is such a separation a de-
nial of the equal protection of the
laws given to every citizen by said
amendment. '
" 'It seems that the "privileges
and immunities" which are protected
by said amendment are those only
which belong to the citizen as a citi-
zen of the United States —
"I beg my friends to draw the
distinction here between a citizen of
the United States and a citizen of a
State, because a man may be a citi-
§ 151]
CONSTRUCTION OF TREATIES. ETC.
166
the right of the inhabitants of San Francisco to have their chil-
dren attend the public schools a right of "residence" within the
meaning of that word as used in the treaty? Does the San Fran-
cisco School Board deny to Japanese residents the same "privi-
zen of the United States without be-
ing a citizen of any State.
" f — those which are granted by a
State to its citizens and which depend
solely upon State laws for their
origin and support are not within the
constitutional inhibition and may law-
fully be denied to any class or race
by the State at its will and discre-
tion.
" 'It seems also that as the privi-
lege of receiving an education at the
expense of the State is created and
conferred only by State laws, it may
be granted or refused to any indi-
vidual or class at the pleasure of the
State. '
"Mr. FULTON. May I ask the
Senator from Maryland a question?
"Mr. EAYNER. Certainly.
"Mr. FULTON. I wish to say
first that I am in accord with the
Senator's view — that the Federal
Government cannot by treaty invade
the right of a State to regulate its
own school system. But a question
has occurred to my mind, and I wish
to ask the Senator from Maryland if
it has occurred to his; and if so,
whether he has reached a conclusion
on it. It is this: Can the Congress
and the President, in the exercise of
the treaty-making power, invade the
rights of a State — what we will term
the 'reserved' rights of a State — to
any greater extent than it can by di-
rect legislation? We will concede, I
think, for instance, that Congress may
not by direct legislation change the
laws of a State providing who may
hold property within the State —
who may own real estate. That is a
matter concerning which a State or-
dinarily would have the right to leg-
islate, and concerning which the Con-
gress could not interfere by direct
legislation. Yet the Supreme Court
has held that by a treaty a law of
a State in that regard may be an-
nulled.
"Now, then, the question which
has arisen in my mind is to what ex-
tent may the treaty-making power
invade the rights of a State beyond
what Congress may invade them by
legislation, or can it?
"Mr. EAYNER. And that, Mr.
President, is not only a very pertinent
question, but it is a question that
would present a great deal of dif-
ficulty in its solution if certain cases
in the Supreme Court, which I am
going to quote, did not fully cover it.
That is the point I am coming to,
Can the United States by treaty go
beyond the delegated powers of the
Constitution? Admitting it cannot
violate the Constitution, is the treaty-
making function circumscribed by the
Constitution? The first case that
arose was a California case, which was
quoted by the Supreme Court with ap-
proval. It was The People ex rel.
the Attorney-General v. Nagle.
"The State of California, as the
Senator from California will remem-
ber, had imposed a license upon for-
eigners engaged in working gold
mines in that State, and the question
arose whether California, under the
treaty, had the right to pass such
a law. .
167
DENIAL OF SAME PRIVILEGES.
[§ 151
leges, liberties and rights" of public school education as it gives
to her own citizens or the citizens of other countries, being resi-
dents of San Francisco, by requiring Japanese residents to send
their children to a separate school?
"OPINION OF THE COURT.
''In addition to this case, I want
to refer to the important eases in
119 Federal Reporter, page 381, and
in 5 Howard, page 613, [12 L. ed.
279], to the opinion of Justice
Daniel, which is concurrent upon the
proposition from which I quote, and
which reads as follows:
1 ' ' This provision of the Constitu-
tion, it is to be feared, is sometimes
applied or expounded without those
qualifications which the character of
the parties to that instrument, and its
adaptation to the purposes for which
it was created, necessarily imply.
Every power delegated to the Federal
Government must be expounded in
coincidence with a perfect right in
the States to all that they have not
delegated; in coincidence, too, with
the possession of every power and
right necessary for their existence and
preservation; for it is impossible to
believe that these ever were, in in-
tention or in fact, ceded to the Gen-
eral Government. Laws of the
United States, in order to be binding,
must be within the legitimate powers
vested by the Constitution. Treaties,
to be valid, must be made within the
scope of the same powers, for there
can be no "authority of the United
States," save what is derived medi-
ately or immediately, and regularly
and legitimately, from the Constitu-
tion. A treaty, no more than an or-
dinary statute, can arbitrarily cede
away any one right of a State or of
any citizen of a State.'
"I wish to refer now to a case in
118 Federal Keporter. This was a
case where a Chinese girl tiled a peti-
tion for a mandamus against the pub-
lic school trustees of San Francisco,
I think, asking admission into the
white school, it was denied. The
case went to the United States court,
and the court said that she had no
right to be admitted into the white
public schools of California; that
there were schools set apart for her,
and she could go into those schools.
Is it not a strange thing that Cali-
fornia can pass a law providing that
the Chinese children who live there
shall be separated in the schools, and
cannot pass a law that the Chinese
children who do not live there, those
who shall come there hereafter, shall
be not separated, but that they must
be put in the white schools?
"Mr. FLINT. Mr. President—
"The VICE-PRESIDENT. Does
the Senator from Maryland yield to
the Senator from California?
"Mr. EARNER. Certainly.
"Mr. FLINT. The language of
the statute is 'Mongolian/ not 'Chi-
nese. '
"Mr. RAYNER. Yes, Mongo-
lian. '
"Mr. FLINT. It includes Japan-
ese?
"Mr. RAYNER. The Japanese
hold that they are not Mongolians;
but outside of that, I am on a propo-
sition of law now. The Senate will
sustain me in the proposition, without
quoting the cases that the court has
absolutely decided that children of
Chinese parents have no right to go
into the same schools with white
children in California; and that
151]
CONSTRUCTION OF TREATIES, ETC.
168
He then said: "This question may be affected by the location
of and accommodation in the separate Mongolian school of San
Francisco. We understand that there is but one Mongolian pub-
lic school in the city.
"If it should be decided that, within the meaning of the
treaty, a right to attend a public school is a right of residence,
has been approved of by the Su-
preme Court of the United States.
How is it possible to hold that
the Chinese children who live there
can be separated and segregated, but
that children living in China or Japan
who may come here cannot be separ-
ated and segregated, but must go
into the white schools?
''Let me get back again now to
what Jefferson said — it is just three
lines. He said it long ago, but not
too long ago to be forgotten, and this
is the proposition on which Mr. But-
ler says Mr. Jefferson has been re-
versed :
•* 'By the general power to make
treaties, the Constitution must have
intended to comprehend only those ob-
jects which are usually regulated by
treaty and cannot be otherwise regu-
lated. It must have meant to except
out of these the rights reserved to the
States, for surely the President and
Senate cannot do by treaty what the
whole Government is interdicted from
doing in any way. '
"That is a concise but a stately
statement of the proposition upon
which I have planted myself to-day.
' ' In addition to the cases that I
have cited, and in closing the entire
reference, I desire to now advert to
several diplomatic precedents of great
value upon this subject. The first
incident took place during the admin-
istration of Mr. Marcy over the De-
partment of State, and I quote his
opinion in the matter:
' ' ' [Mr Marcy, Secretary of State,
to Mr. Mason, minister to
France, September 11, 1854.]
" 'It is not, as you will perceive
by examining Mr. Drouyn de
L'Huys' dispatch to the Count de
Sartiges, the application of the ' ' prin-
ciple" to the particular case of M.
Dillon, which is to be disavowed, but
the broad and general proposition that
the Constitution is paramount in au-
thority to any treaty or convention
made by this Government. This prin-
ciple, the President directs me to say,
he cannot disavow, nor would it be
candid in him to withhold an expres-
sion of his belief that if a case
should arise presenting a direct con-
flict between the Constitution of the
United States and a treaty made by
authority thereof, and be brought be-
fore our highest tribunal for adjudi-
cation, the court would act upon the
principle that the Constitution was
the paramount law. '
' ' The second incident also took
place during the administration of
Mr. Marcy:
' ' ' [Mr. Marcy, Secretary of State,
to Mr. de Figaniere, Portuguese
charge d'affaires, March 27,
1855.]
" 'Although the language of Ar-
ticle II of the consular convention
between the United States and France
of February 23, 1853, exempting con-
suls from compulsory process, is gen-
eral and unrestricted in terms, "yet
it is here held that it does not take
away the right which the defendant
169
POLICE REGULATIONS.
[§ 151
and that the action of the San Francisco School Board is a denial
of 'the same privileges, liberties and rights' in respect to public
school education which are granted to other residents, the ques-
tion would remain, whether the act of the San Francisco au-
thorities could be justified under the clause which excepts 'laws,
ordinances and regulations with regard to police and public se-
curity.' "
in a criminal prosecution has to re-
sort to such process to procure the
witnesses in his favor, for this right
is secured to him by the express lan-
guage of the United States Constitu-
tion. " That instrument is para-
mount in authority to the laws of
Congress or of any of the States, and
to all treaty stipulations.'
"At a very late date the question
arose with the Department of State,
presided over by Secretary Hay, and
I read the conclusion that the Secre-
tary reached upon this subject, quot-
ing from Mr. Moore's valuable treat-
ise upon international law:
" 'July 19, 1899, the Department
of State declined a proposal of the
British Government to negotiate a
treaty to prevent discriminatory legis-
lation by the several States of the
United States, subjecting foreign fire-
insurance companies to higher taxes
than domestic companies. The reason
given for the declination was that the
negotiation of such a treaty would
probably be futile on account of the
indisposition of the people to permit
any encroachment upon the exercise
of powers of the local legislation. '
"ARE THE PUBLIC SCHOOLS OF CALI-
FORNIA THE PROPERTY OF CALIFOR-
NIA OR OF THE UNITED STATES?
"Is it necessary for me to say any-
thing further? Are the public schools
of California the property of Cali-
fornia or the property of the United
States? Does the public school sys-
tem of California or of any other
State belong to the State that cre-
ates and supports it, or to the Gov-
ernment that has neither created nor
sustained it? Does this subject come
within the treaty-making power?
Does it come within the delegated
powers of the Constitution? Has
the United States the right to incor-
porate into a treaty a provision that
the States shall, out of their own
treasury, educate the citizens of for-
eign governments? Is there any
power in any treaty to deprive any
of the States of their reserved right
to regulate and manage their local
affairs according to their own usages
and statutes? Are not foreign gov-
ernments that deal with us presumed
to know the nature and the character
of our institutions, and is not this
principle fully established by an un-
broken line of precedents passed upon
by the State Department from time
immemorial? There can be but one
response to all these inquiries, in my
opinion, and as the result of the in-
vestigation that I have given to this
subject I now assert, in the language
of the resolutions, that the public
school systems of the States belong
to the States along with all of their
reserved rights; that the Government
has no power whatever to meddle
with them or control them, and it was
the duty of the President to have in-
formed the Government of Japan as
soon as the question arose, no matter
what his feelings or sentiments may
151]
CONSTRUCTION OF TREATIES, ETC.
170
Speaking of the constitutionality of the treaty, he said: "If
the treaty-making power of the Federal Government is limited,
and if this treaty in conferring on Japanese residents in the
United States the right to attend the public schools of a State,
exceeds those limits, the Treaty in this respect is unconstitu-
have been, that the subject was en-
tirely without the domain of his jur-
isdiction.
"THE CONCLUSIONS i HAVE REACHED.
"I shall now, in conclusion, sum-
marize the results that I have reached.
I am not here for the purpose of
denying to the Government the power
to cover by treaty every right, priv-
ilege, and concession that comes
within the treaty-making power in
order to carry out the objects and
purposes of this Government as de-
fined in the Constitution. I do not
for a moment set up the reserved
rights of the States against the exer-
cise of any constitutional power that
may be incorporated in a treaty. I
admit that the United States can
enter into any treaty with any for-
eign power in reference to any sub-
ject embraced in the Constitution.
I deny, however, that it possesses any
inherent right to make a treaty, and
I claim that the treaty-making power
lies in grant and not in sovereignty
and must be construed in pari ma-
teria with all the other clauses of
the instrument that creates it, and
that in interpreting the treaty-mak-
ing power we must be governed
by the principles of international law,
its usages and its practices, as those
principles, usages, and practices ap-
pertain to our form of constitutional
government. I utterly deny that we
have any right to make a treaty that
violates the Constitution, or deprives
the States of their reserved rights to
conduct their local affairs over which
the Federal Government has no jur-
isdiction, and which they alone have
the right to administer according to
their own constitutions and statutes.
"THE RESERVED RIGHTS OF THE
STATES.
"As I said at the commencement,
this is a grave and profound question
that we have encountered. The local
problem sinks into insignificance be-
side the great principle that is here
involved. It affords a timely warn-
ing and admonition that at any time,
through the treaty-making power, a
deadly blow may be aimed at the
entire fabric of our institutions, and
they can be leveled to the ground.
If the President can practically make
a treaty, and that is what he is doing
in other directions, and dispose of the
reserved rights of the States, then
the treaty-making power is above and
beyond the Constitution, and the su-
premacy of the States within their
own borders departs an3 vanishes
forever. If the Democratic party ac-
cepts such a doctrine as this, then it
has also parted with its birthright
and abandoned the historic ground
upon which it has stood for over a
century. I believe in the complete
exercise by the Federal Government
of every Federal power contained in
the Constitution, but beyond the dele-
gated powers and the right to pass
all laws necessary to execute the dele-
gated powers, I would never justify
the slightest encroachment upon the
reserved rights of sovereign States
wdthin their own borders. In the
171 CONSTITUTION CONTROLS. [§ 152
tional, and no more the supreme law of the land than an uncon-
stitutional act of Congress. The question, 'Can a treaty override
the Constitution?' is to-day as absurd as the question, 'Can an
Act of Congress override the Constitution?' The treaty-making
power, as the legislative power, must be exercised within those
limits, if any, imposed by the Constitution."
§ 152. Same subject — Is the treaty-making power limited or
unlimited. — Mr. Lewis said that the difficulty in all questions of
this character was to determine whether or not the treaty-making
power was limited or unlimited. He said: "Is it an unlimited
power or is it a limited power ; and if limited, what are the limi-
tations ? On the answers given to these questions depends the
validity of the Japanese Treaty, supposing that that treaty does
in terms give the right to Japanese residents in this country to
send their children to the public schools of the State in which
they reside.
"The discussion of the extent of the treaty-making power is
almost wholly an academic one, the Supreme Court having only
decided one point; namely, that the treaty-making power of our
Federal Government is not confined within the limits of the legis-
lative power of that government. That can be done by treaty
which cannot be done by act of Congress."
Referring to the cases in which it was held that a treaty re-
moved the disability of aliens to inherit, he stated: "The conclu-
sion reached from the cases referred to, that under the treaty-
making power that can be done which Congress under its legis-
lative power cannot do, is still further strengthened by the long
acquiescence of all Departments of the Federal Government, and
of the states, in extradition treaties; treaties in which claims
of our citizens against foreign governments have been confis-
cated, barred and satisfied ; trade-mark conventions ; and treaties
giving foreign consuls judicial powers in the United States, or
United States consuls judicial power over American citizens in
night of our despair, this reserved the worship of grotesque and mean-
right of the States is the only con- ingless idols and follow it like a
stellation that for our party has no pillar of fire to the land of our na-
' fellow in the firmament.' We were tivity." 41 Congressional Eecord,
born under its horoscope, and if there No. 8, pp. 281-288.
is any life left in us we must forsake
152]
CONSTRUCTION OP TREATIES, ETC.
172
foreign lands. In all these treaties will be found provisions
which Congress alone, under its legislative power, could not
enact."
"On the other hand no member of the Supreme Court, text-
writer, or publicist has yet taken the position that the treaty-
making power of our Federal Government is absolutely un-
limited."87
87 55 American Law Keg. No. 2, Feb-
ruary, 1907. Speaking of the clause
relating to the treaty-making power he
said : ' ' The three main articles
of the Constitution deal respec-
tively with the legislative, ex-
ecutive and judicial departments.
The clause conferring treaty-making
power is in the second Article. This
Article 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 Senators present concur. ' The
Constitution does not specify the sub-
jects in regard to which treaties may
be made. The words are general;
the President and the Senate have the
power to make treaties. There is a
marked difference in this respect in
the manner in which the second Ar-
ticle confers the treaty-making power
and the way in which the first Ar-
ticle confers the power of legislation.
The first Article, after providing for
the creation of a legislative body, con-
fers on that body, not the power to
legislate, but the power to legislate
on particular subjects which are
carefully enumerated.
' ' The powers conferred by the
first Article are on their face legis-
lative powers only. They neither
purport to give nor take away any
power which the President and the
Senate may possess in respect to
treaties. This fact is the justifica-
tion for the decisions of the Supreme
Court to which reference has been
made. Shortly after the Constitution
was adopted, when the Jay Treaty
with England was under discussion, it
was supposed by some that as the.
first Article conferred on Congress
the power to regulate foreign com-
merce, under the treaty-making
power no commercial treaty could be
negotiated. It was soon perceived,
however, that regulations of foreign
commerce could be the result either
of an act or a treaty, and that while
the first Article had conferred on
Congress legislative power which en-
abled them to regulate foreign com-
merce, that did not prevent the
treaty-making power from being so
exercised as to produce the same re-
sult. Since then the proposition that
the treaty-making power of our Fed-
eral Government is neither enlarged
or contracted by the grants of legis-
lative power in the first Article has
never been seriously questioned. Tak-
ing these first two Articles of the Con-
stitution by themselves, it is as clear
that general treaty-making power is
conferred in the second Article, as it
is that limited legislative power is
conferred in the first Article. If it
be objected that the Constitution does
not in express terms give to the Fed-
eral Government power to make any
treaty it sees fit, it can be replied, that
where those who are sovereignty, as
the power of legislation or the power
to make a treaty, the word 'all' is
not necessary to explain the extent
of the power. The power to do
173
LIMITATION BY CONSTITUTION.
[§ 153
§ 153. Same subject — Limitation by words of constitution.
Mr. Lewis having pointed out that the treaty-making power is
not limited by the nature of the power, states that it is limited
by the words of the Constitution, because the Constitution creates
a government with three separate departments — executive, legis-
lative and judicial — and that it is axiomatic that powers con-
ferred upon one cannot be exercised to alter the Constitution,
and quotes the language of Judge Story: "A power given by the
Constitution cannot be construed to authorize a destruction of
the other powers given by the same instrument A treaty
to change the organization of the government or annihilate its
sovereignty, to overturn its republican form or to deprive of
something given by a sovereign hand
is the power to do it in any way the
grantee sees fit. The argument that
because the word 'all' does not pre-
cede the word 'power' in the clause
conferring treaty-making power and
that therefore the power is limited,
proves too much. It would show
that the words in the second Article
do not confer a power to make a
treaty on any subject. Not only is
the word 'all' not used, but none
of the subjects on which treaties
may be negotiated are referred to.
"As in apparently unambiguous
language full and unlimited treaty-
making power is by the second Ar-
ticle conferred on the President and
the Senate, the burden is on those
who contend that the power is lim-
ited to prove their case. For we
must remember that if the Constitu-
tion does attempt to give to the Pres-
ident and Senate an unlimited power
to make treaties, the attempt hns been
successful. There have been two
theories in regard to the adoption of
the Constitution of the United States ;
one that it was adopted by the people
of the United States; another that it
was adopted by the States. The ad-
vocates of either theory, however,
agree that the power which adopted
the Constitution was competent to
confer on the Government created by
the Constitution all the powers of
sovereignty. The source from which
the Constitution sprang is a source
of unlimited power and authority.
The people or the States who
adopted it could give to the new Gov-
ernment that they created just as
much or just as little of the powers
of sovereignty as they chose.
" Limitations on the treaty-making
power, if any exist, may be found,
either in the nature of the power,
or the words of the Constitution.
Again, limitations may possibly be
implied from the fact that our Con-
stitution was adopted by a free peo-
ple, or may be implied from the very
existence of the States as an integral
part of our Federal State.
"A moment's consideration will
show that there is nothing in the
nature of the power which limits its
operations to particular classes of
subjects. A treaty is a contract be-
tween two nations. Treaties, if not
essential to foreign social and com-
mercial intercourse, are at least an
important means of fostering such
intercourse. The people of a nation
§ 153] CONSTRUCTION OP TREATIES, ETC. 174
its constitutional powers, would be void, because it would destroy
what it was designed to fulfill the will of the people."88
Mr. Lewis continued: "The treaty-making power, as all other
powers of our Federal Government, is necessarily limited to the
extent here indicated. By treaty we may not alter the Consti-
tutional distribution of powers between the three Departments of
our Federal Government, or confer on any Department a power
not conferred on it by the Constitution. By treaty we may
not agree that hereafter Congress should legislate on divorce, or
that the treaty-making power itself should be executed by
Congress ; or that a particular State should have three represen-
tatives in the Senate.
"If a treaty cannot alter the Constitution as written, a treaty
cannot violate any specific general restriction on Federal power
which may be found in the Constitution. The first eight Amend-
ments, for instance, are prohibitions against specific exercises
of power. In all except the first, the prohibition is in terms
general. The second Amendment does not say that 'Congress
shall not pass any law' forbidding the people to bear arms, or
that 'the executive shall not interfere with this right,' but that
'the right of the people to keep and bear arms shall not be in-
fringed.' A treaty which deprived the people of this right
would be apparently in direct violation of the express words of
the Constitution.
"It is, however, important to note that the 10th Amendment
does not limit the treaty-making power. This Amendment pro-
vides: 'The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
regulate their conduct toward each in the treaty is for the sovereign na-
other by those customs to which they tions who are parties to it to consider,
have given the force of law, and by Being sovereign, the power to contract
legislation; but much of their conduct knows no legal limits. If, therefore,
towards the people of another nation full and unlimited treaty-making
must be regulated by treaty. Thus, power is given to the Federal Gov-
the binding rules of conduct of any ernment, by treaty anything can be
people spring from three sources, done. There is nothing in the na-
custom, legislation, and treaties. ture of the power to limit the sub-
There is nothing in the nature of jects on which treaties can be
any of these sources of law which made. ' '
prevents any particular law from w 55 Am. Law Eeg. No. 2, citing
having its origin in any one of them. Story on Constitution, sec. 1506.
The wisdom of the contract expressed
175 THE TENTH AMENDMENT. [§ 154
the States respectively, or to the people. ' But the power to make
treaties is expressly given to the United States by the Constitu-
tion, and the Constitution also expressly prohibits the States
from exercising the treaty-making power. The power to make
treaties, therefore, is not one of the powers 'reserved to the
States respectively, or to the people,' mentioned in this Amend-
ment,"
§ 154. The tenth amendment. — In the argument of this ques-
tion by law-writers it was asserted by those who claimed that
the treaty-making power could not extend to the subject of edu-
cation that such a treaty would violate the tenth amendment of
the Constitution. Referring to this proposition, Mr. Lewis stated : .
" Again, it is important to note that the principle that a treaty
cannot alter the Constitution as written cannot be extended to
prohibit treaties dealing with subjects not referred to in the
Constitution. It may be that there are limitations on the treaty-
making power, arising out of the fact that the Constitution
was adopted by a free people, or from the very existence of
the states as a necessary part of the Federal system. But such
limitations, if they exist, do not come from the words of the
Constitution. For instance, it is admitted that a treaty which
conferred on Congress the right to regulate marriage and divorce
would be unconstitutional. But whether the marriage of aliens
in the United States could be regulated by treaty is a radically
different question. If the treaty-making power cannot deal with
the subject of the marriage of aliens in the United States, it is
not because of anything expressed in our Constitution. The
Constitution confers on Congress legislative power over certain
subjects. The marriage and divorce of natives or aliens in a
State of the United States is not a subject on which Congress
has been given power to legislate. To confer such power on
Congress by treaty would alter the Constitution as written. But
to regulate divorce by treaty does not alter the Constitution as
written. As has been pointed out, the Constitution gives to the
President and the Senate the power to make treaties. It does
not say that the marriage and divorce of aliens in the United
States shall not be regulated by treaty. There is no clause in
the Constitution which such a treaty would violate. To say that
we have not given the power to legislate on divorce to Congress
sj .) CONSTRUCTION OF TREATIES, ETC. 176
and therefore that it may be presumed that it was not intended
to confer on the President and Senate the power to regulate the
subject by treaty, is to take the position that the grants of legis-
lative power limit the treaty-making power ; a position which has
been, as we have seen, expressly repudiated by the Supreme
Court. If, therefore, there is no power to make a treaty on the
subject, the want of power must be due, not to anything ex-
pressed in the Constitution, but to some implied limitation on the
treaty-making power.
"The principles on which we would have to test the validity
of a treaty on the marriage and divorce of aliens in the United
States also applies to the Treaty under discussion. Admitting
that our Treaty with Japan provides that Japanese residents shall
have a right to attend the public schools of a State, it is evident
that such treaty does not violate any clause of the Constitution as
written. Such a treaty does not confer on Congress legislative
power over the State schools. It does not increase or decrease
legislative or executive power as found in the Constitution or
violate any of its express prohibitions. The right of the Federal
Government to adopt a treaty of the character indicated can only
be denied by showing that such a treaty violates an implied lim-
itation on the treaty-making power. ' ' 89
80 55 Am. Law Beg. No. 2. He specified tend to protect individual
proceeded: "The people of the liberty and the republican form of
United States are organized in a government. Following these Amend-
Federal State. An implied limitation inents, the 9th Amendment provides:
on a power delegated to the Federal 'The enumeration in the Constitution
Government must arise out of the ex- • of certain rights shall not be con-
istence of some implied reserved strued to deny or disparage others
right in the people of the United retained by the people.' The word-
States, or out of the existence of ing of this Amendment presupposed
some implied reserved right in the the existence of reserved rights in the
States considered as corporate enti- people of the United States not men-
ties, tioned in the Constitution. There
"We may first ask: Are there any are, therefore, implied limitations on
implied reserved rights of the people the treaty-making power and on
of the United States not mentioned every other power of the Federal
in the Constitution. Our Constitu- Government arising out of the fact
tion was adopted by a free people that the Constitution was adopted by
and was intended for their govern- a free people imbued with the im-
ment. The first eight Amendments portance of individual liberty and
specify certain rights of the people ' firmly believing in democratic insti-
of the United States. The rights tutions. It is unnecessary to discuss
177
NO QUESTION OP STATE RIGHTS INVOLVED.
;§ 155
§ 155. No question of state rights involved.— It was contended
that by the provision of the treaty with Japan and its enforce-
ment the question of state rights became involved. Mr. Boot,
Secretary of State, said that no question of state rights was in-
specific illustrations of possible vio-
lations of these implied limitations
on the treaty-making power, for a
treaty which gives to aliens the right
to attend the public schools of a
State does not violate any possible
rule of law designed to protect the
hoerty of the citizens of the United
States or the republican form of
government.
' ' If the Treaty under discussion
does not violate any part of the Con-
stitution as written, or any implied
limitation on 1;he treaty-making power
arising out of the implied reserved
rights of the citizens of the United
States, the single question remains:
Does it violate any implied limitation
on the treaty-making power arising
out of implied reserved rights of the
States?
11 If the treaty-making power is
necessarily limited by the nature of
a Federal State, then it will be neces-
sary to go outside the Constitution
to ascertain the nature of those limi-
tations, and whether they prohibit
the Central Government from making
the treaty in question. On the other
hand if there is nothing in the nature
of a Federal State, in which the
Central Government has all the
treaty-making power, to impose im-
plied restrictions on the subjects
which may be dealt with under that
power, such an investigation will be
unnecessary.
1 ' The broad question whether any
limitations on the treaty-making
power arise of necessity from the
Federal nature of our State has
never been thoroughly discussed.
Treaties — 12
But the most important single ques-
tion which tests the question of the
existence of such a limitation on the
right of our Federal Government by
treaty to cede the territory of a
State without its consent, has been
the subject of many positive and
conflicting assertions. Chancellor
Kent in his Commentaries; Justice
McLean in Lattimore v. Poteet, and
Mr. Butler in his work on the
Treaty-making Power, are all of the
opinion that such a power exists.
On the other hand, Woolsey, in his
work on International Law, and the
late Justice Field, of the Supreme
Court, deny the power.
' ' The greater power includes the
less. If it can be shown that there
is nothing in the nature of a Federal
State to prevent the treaty-making
power from ceding part or all of the
territory of a State to a foreign
power, there is certainly nothing in
the nature of such a State to pre-
vent the subjects of a foreign power
from being given by treaty the right
to attend the public schools of the
State. In the second case a State is
merely required to devote a part of
its property, set aside for the educa-
tion of native residents, to the edu-
cation of foreign residents; but in
the first the State itself is destroyed.
"That our Constitution should
carefully guard and limit the legisla-
tive power of the Federal Govern-
ment is most natural. The regula-
tion of interstate, not state com-
merce; protection to the United
States as a nation, not regulations of
§ 155]
CONSTRUCTION OF TREATIES, ETC.
178
volved, unless it was the question settled by the adoption of the
Constitution. To use his own language :
"Legislative power is distributed; upon some subjects the
National Legislature has authority ; upon other subjects the State
the internal affairs of 'the States, are
objects of the union. General legis-
lative power in the Federal Govern-
ment was unnecessary to accomplish
the ends in view. But the power to
deal with foreign nations as a unit;
to secure as a unit in time of peace
the best commercial treaties possible;
as a unit to make war, if war was
necessary; and as a unit to make the
best peace possible, if peacB was
necessary; all these were prime ob-
jects of the Union, and they are ob-
jects which cannot be obtained by
conferring a treaty-making power
limited and fettered in the way it
was both wise and feasible that the
Federal legislative power should be
fettered. Take even the power to
part by treaty with the territory of i
State. The probability that the new
nation would sooner or later be en-
gaged in war was present to the
minds of those who adopted our Con-
stitution. Wars are ended by treaties
of peace. The spectacle of a nation
being obliged to purchase peace by
the cession of territory is not rare.
Before, as well as since, the adoption
of our Constitution, other nations
have often had to purchase peace by
the cession of territory. Germany
demanded Alsace and Lorraine as
the price of withdrawing their troops
from Paris. The experience of
France is not unique. Though we
are now a powerful nation removed
probably for many decades to come
from the fear of foreign invasion,
we have in the course of our short
history seen a foreign power in pos-
session of our national capital. If
by entering a union with other States,
a State renders it legally possible
for the Central Government to sacri-
fice Tier territory or her complete con-
trol over her police arrangements to
protect the territory of other States,
she also gains the reciprocal advan-
tage of being able to save herself
and the great majority of the other
States by sacrificing the territory of
a sister State. Such an arrangement
is not one-sided.
' ' Take the specific case under con-
sideration. The power, to admit or
exclude aliens from the territory of
a State unquestionably resides in our
Federal Government. The Federal
Government has the exclusive power
of naturalization. When the States
have already given to the Central
Government the power to admit aliens
and make them citizens, entitled to
all the rights and privileges of citi-
zenship, there is nothing unreasonable
in their also conferring on that gov-
ernment the power to give aliens,
after admission to a State and be-
fore naturalization, the right to be
admitted to her public schools
' ' If these conclusions are correct,
our Federal Government has under
the Constitution power to make a
treaty with Japan or any other for-
eign nation, giving to the subjects
or citizens of the foreign nation re-
siding in one of the States the right
to attend the public schools of the
State on the same terms as native
or naturalized citizens. In the Con-
stitution itself we find nothing to re-
strain the President from negotiat-
ing, with two-thirds of the Senate
179 NO QUESTION OP STATE RIGHTS INVOLVED. [§ 155
Legislature has authority. Judicial power is distributed; in
some cases the Federal courts have jurisdiction ; in other cases the
State courts have jurisdiction. Executive power is distributed;
in some fields the National Executive is to act ; in other fields the
State Executive is to act. The treaty-making power is not dis-
tributed ; it is all vested in the National Government ; no part of
it is vested in or reserved to the States. In international affairs
there are no States; there is but one nation, acting in direct re-
lation to and representation of every citizen in every State.
Every treaty made under the authority of the United States is
made by the National Government, as the direct and sole repre-
sentative of every citizen of the United States residing in Cali-
fornia equally with every citizen of the United States residing
elsewhere. It is, of course, conceivable that, under pretense of
exercising the treaty-making power, the President and Senate
might attempt to make provisions regarding matters which are
not proper subjects of international agreement, and which would
be only a colorable — not a real — exercise of the treaty-making
power; but so far as the real exercise of the power goes, there
can be no question of State rights, because the Constitution itself,
in the most explicit terms, has precluded the existence of any
such question. ' ' 90
from ratifying such a treaty. It is " It is not the purpose of this
not opposed to the fundamental char- paper to discuss the merits of this
acteristics of free republican govern- controversy. In its present stages it
ment; it does not interfere with the is important only because it points
liberty of the citizens of the United out that the limitations upon the
States; and finally, there is nothing treaty-making power have never been
in the nature of our Federal State authoritatively defined and that the
from which we may imply any liniita- precedents are so few as to leave the
tion on the treaty-making power not question an open one as to whether
found in the words of the Constitu- there are any limitations at all,
tion. ' ' other than those imposed upon the
90 Address before the American treaty-making power of most other
Society of International Law at countries. If, however, owing to the
Washington, April 19, 1907. In the peculiar structure of our political
Columbia Law Review of March, 1907, system, such limitations do exist, it
Vol. VII, No. 3, appeared an article is plain that the consequences may
written by Arthur K. Kuhn, entitled be serious; for the Federal Govern-
"The Treaty-making Power and the ment may either find itself incapable
Reserved Sovereignty of the States." of maintaining the integrity of a
Among other things he said: compact regularly entered into with
§ 156]
CONSTRUCTION OF TREATIES, ETC.
180
§ 156. Implied limitations upon treaty-making power. — While
Mr. Root claimed that there were no express limitations upon the
treaty-making power granted to the national government, he ad-
some foreign power for the benefit of
citizens or subjects of that power re-
siding or sojourning in the United
States, or as a corollary, it may find
that it is powerless to enforce recip-
rocal provisions protective of or bene-
ficial to our own citizens residing or
sojourning within the territory of
that power.
"An example of the first case was
presented by the incident known as
that of the Mafia Eiots, which oc-
curred in 1891, and which resulted in
a withdrawal from Washington of the
Italian Minister accredited to the
United States. In that year, a num-
ber of Italians then confined in New
Orleans were forcibly taken from jail
and hanged by a large number of citi-
zens. None of the participants was
tried, though the then existing treaty
(November 23d, 1871) guaranteed to
the citizens of either nation in the
territory of the other 'the most con-
stant protection and security for
their persons and property. ' Neither
was any compensation possible under
the laws of the State of Louisiana
owing to the fact that the common
civil law prevailed in that State pur-
suant to which no action lay for in-
jury to a person, resulting in his
death. Under the position taken by
Mr. Elaine, then Secretary of State,
the Federal Government was power-
less to 'do more than urge upon the
State officers, the duty of promptly
bringing the offenders to trial/ . . . .
"We think that the issue was thus
very clearly brought out, but it was
not settled at the time because, fol-
lowing the usual practice, the Federal
courts evaded the question of the ca-
pacity of the treaty-making power
to impress upon the laws of a State
a provision within its police powers,
and therefore otherwise reserved, in
favor of aliens, in exchange for re-
ciprocal benefits to our own citizens
within the territory of the foreign
state. Instead, the decision went off
on a point of the interpretation of
the treaty. Furthermore, the Federal
Government finally avoided further
conflict with Italy by offering to her
a sum of money to be distributed
among the families of the victims,
though the letter offering this indem-
nity disclaimed any liability on the
part of the United States Govern-
ment
1 1 These examples from the diplo-
matic relations of the United States
with other powers are cited to show
the situation presented by the pecu-
liarity of our organic law. The war
spirit which pervaded both countries
at the time of the incident with Italy
and the energetic measures employed
in the President's recent message to
Congress to quell a recurrence of it
on either side of the Pacific because
of the incident with Japan, indicate
the importance of having a clear defi-
nition of the treaty-making power
under our Constitution. A strongly
centralized nation such as Italy or
France, or as we have seen even our
own government when in the position
of the complainant, will never submit
without a struggle to the avoidance of
treaty obligations on the plea of ultra
vires. Neither will the opportunist
methods of diplomacy forever prove
adequate. Mr. Blaine adopted the
attitude of the overzealous attorney
181 IMPLIED LIMITATIONS UPON TREATY-MAKING POWER. [§ 156
mitted that there were certain implied limitations arising from
the nature of the federal government and from other provisions
of the Constitution, but he asserted that these limitations did not
defending his client from a money
claim for injuries and finally com-
promised on the best basis possible.
This will not do, for, as the case of
the Monti jo proves, the shoe has been,
and again may be on the other foot.
' ' In 'respect of categories of legis-
lation enumerated in the Constitution,
there can be no dispute as between
the authority of the treaty-making
organs and the States. Here at most
there may arise the question whether
there has been a usurpation of the
legislative powers of Congress.
Though not within the limitations of
the present paper, we may say that
even as far back as 1840 Mr. Calhoun
recognized that even the exclusive
delegation of a power to Congress
does not exclude it from being the
subject of treaty stipulations. Of
this the power of appropriating
money furnishes a striking example.
If the contrary should be maintained,
it might truly be said that the exer-
cise of the treaty-making powers has
been 'one continual series of habitual
and uninterrupted infringements of
the Constitution.'
1 ' Of all the movements toward cen-
tralization by construction and inter-
pretation, which have been progress-
ing since the formation of the Fed-
eral Union, none would seem more
necessary for the preservation of the
whole than the tendence toward a
liberal construction of Article VI of
the Constitution. Even in the Con-
vention, the necessity for the widest
delegation of these powers was recog-
nized. Madison pointed out that the
violation by the States, as separate
entities, of treaties passed under the
old Articles of Confederation had al-
ready resulted in complaints from al-
most every nation with which treaties
had been formed. It is plain from
the discussion which ensues that the
provision was adopted in its present
form in order to prevent any part of
the nation from causing a rupture be-
tween a foreign nation and the whole.
It is significant that after a full dis-
cussion in the Convention, the only
restraints placed upon a treaty-mak-
ing power were as to the method in
which treaties must be made and rati-
fied, and that those restrictions re-
lated only to the method of exercising
the power and not to its scope or su-
premacy.
"From the very nature of our gov-
ernment, the treaty-making power
must reside centrally or nowhere. If
there be a limitation upon the power
of the President and Senate to enter
into a particular treaty, the power of
the entire nation has been by so much
cut down.
"For all practical purposes of ne-
gotiation with a foreign nation, there
is no residue of such power left any-
where. Adopting the reasoning of
Mr. Butler, now Eeporter of the Su-
preme Court of the United States,
we may say that as to those subjects
over which it was neither proper not
practical, for a State to exercise
sovereignty, but which required na-
tional action for the joint or equal
benefit of every State, it was impossi-
ble for any State separately, or all
the States collectively, either to dele-
gate or reserve elements of sover-
eignty which none of them possessed.
§ 156]
CONSTRUCTION OF TREATIES, ETC.
182
to the slightest extent affect the execution of treaty stipulations
relating to the treatment of aliens within the United States. He
referred to the declaration of the supreme court of the United
States that the treaty-making power extends to all proper sub-
jects of negotiation between our government and the govern-
ments of other nations, and that, as expressed in the Constitu-
tion, it is in terms unlimited except by those restraints which
are found in that instrument against the action of the govern-
ment or of its departments, and those arising from the nature of
the government itself , and of that of the states, and that with the
exception of not authorizing what the Constitution forbids, nor
authorizing a change in the character of the government, or in
that of one of the states, or a cession of any portion of the ter-
ritory of a state without its consent, "it is not perceived that
there is any limit to the questions which can be adjusted touch-
ing any matter which is properly the subject of negotiation with
a foreign country."91
1 1 Whatever may have been the in-
tention of the framers of the Con-
stitution in respect of the reserved
powers of the States within the cate-
gory of national or State law, it
could never have been (and the de-
bates in the Convention so prove) to
limit the central government in the
exercise of its international power as
a sovereign to protect and benefit the
citizens of all of the States in foreign
countries, and for that purpose, to
assure reciprocal rights to aliens in
all of the States. It is clear that as
a practical matter the one power fol-
lows as a corollary of the other. If
it has the power to obtain the right
in behalf of our own citizens, it has
the power to pledge the faith and
honor of the nation for the perform-
ance of the quid pro quo as an obli-
gation upon all of the States. If it
be said that thus a treaty may be
made the subterfuge for imposing un-
desired legislation upon the States, it
may be answered that besides the
numerous political checks provided for
in our system, the Supreme Court has
ample authority to review the exer-
cise of the constitutional prerogative
just as it does in respect to an excess
by Congress and the President, in the
exercise of one of the expressly dele-
gated powers.
"But with these exceptions, the un-
restricted exercise of the treaty power
is essential to the Central Government
as representing the nation and its
sovereignty over and against foreign
nations. It is wholesome because it
tends to prevent war. It is consistent
because Article I, Section 10, ex-
pressly denies all treaty power to the
States without the consent of Con-
gress and further because all of the
States are equally represented in the
ratifying body, wherein two-thirds
must concur. International, not mu-
nicipal, standards of law should de-
termine its scope and the limitations
of its use. ' '
81 In De Geofroy v. Eiggs, 133 U.
S. 258, 10 Sup. Ct. Eep. 295, 33 L.
ed. 642, Mr. Boot's Address before
183 IMPLIED LIMITATIONS UPON TREATY-MAKING POWER. [§ 157
§ 157. Same subject— Mr. Root's views.— Mr. Root stated that
among the most familiar, ordinary and unquestioned exercises of
the treaty-making power are reciprocal agreements between na-
tions relative to the treatment which the citizens of each nation
American Society of International
Law, April 19, 1907. Judge Schac-
kleford Miller, of Louisville, Ken-
tucky, delivered a lecture before the
Jefferson School of Law, in which,
after citing the clause in the treaty
relating to residence, he said: "It
will no doubt readily be conceded
that the right of the Japanese stu-
dents to attend the public schools must
be founded upon this treaty right of
residence or it does not exist. There
is no other right or privilege men-
tioned in the treaty which could even
be remotely claimed to embrace the
right of attending the public schools.
It would seem, however, that a fair
construction of the treaty would
scarcely extend the privileges of the
public schools of a State to unnatur-
alized foreigners. If the Federal
Government had so intended, it is but
reasonable to assume that the treaty
would have so provided in express
terms. It was careful to cover the
rights of entry, travel, residence, the
succession of personalty, and the dis-
position of property of all kinds, but
it nowhere appears that school privi-
leges were ever considered.
''Under the present treaty, there-
fore, it would seem reasonably clear
that the Japanese residents of Cali-
fornia have no right to have them-
selves and their children educated at
the public schools and at the public
expense. ' '
In an article entitled ' ( The Segre-
gation of Japanese Students by the
School Authorities of San Francis-
co," by Charles Cheney Hyde, pub-
lished in the Green Bag, Vol. XIX,
No. 1, January, 1907, it is said: "It
is a benefit to the alien resident in the
United States that whenever he may
believe that his rights under a treaty
are infringed by the act of a single
state he may secure a judicial inter-
pretation of the treaty by a compe-
tent tribunal. The fact that such ^n
inquiry may be made by a court which
is independent of the political de-
partment of the government, and free
to consider the question of infringe-
ment on its merits, is a means of pro-
tection to the foreigner. If his con-
tention is sustained, the court, in pur-
suance of a constitutional provision,
will pronounce null and void, and
therefore inoperative, any local ordi-
nance or state law which it finds to
be in violation of the treaty. Be-
cause this means of redress is open to
the alien, the United States is justi-
fied in requiring that an alleged viola-
tion of a treaty by the act of a state
should be made the subject of judicial
inquiry in an American court before
being asserted as a ground for diplo-
matic intervention. Such has been
our constant practice.
11 In a note to the Chinese Minister,
May 27, 1890, the Secretary of State,
Mr. Blaine, in reply to a protest from
the Chinese government against an
ordinance of San Francisco, requiring
Chinese subjects there residing to re-
move from their existing homes and
places of business to a particular part
of that city, as a violation of Article
III of the treaty of 1880 said:
" 'Meanwhile, may I ask your at-
tention to the sixth article of the Con-
stitution of the United States, which
157]
CONSTRUCTION OF TREATIES, ETC.
184
shall receive in the territory of the other. "To secure the citi-
zens of one's country against discriminatory laws and discrim-
inatory administration in the foreign countries where they may
travel or trade or reside is, and always has been, one of the chief
places treaties on the same juridical
basis as laws and makes them the su-
preme law of the land, anything in
the constitution or laws of any State
to the contrary notwithstanding. By
the second section of the third article
the judicial power of the United
States is made to extend to all cases
arising under the treaties. Under
these provisions, and the statutes of
the United States passed to give them
effect, it is believed that the Chinese
who are said to have been arrested
under the order in question may, in
an application to the courts for re-
lease from imprisonment or deten-
tion, speedily obtain a decision as to
their rights and the legality of the
order. '
11 Advantageous as it may be from
every point of view, both to the alien
and to our own government, that an
American tribunal should determine
whether a foreigner residing in the
United States has been prevented
from enjoying the exercise of a treaty
right, it cannot be said that the de-
cision of such a question by such a
tribunal can fully determine the right-
fulness of the claim advanced. When
the decision of the court denies the
contention of the alien, his govern-
ment is not bound by the judicial in-
terpretation of the treaty. If, for
example, the federal courts should de-
cide that the action of the school au-
thorities of San Francisco was not in
contravention of the treaty of 1894
with respect to Japanese subjects
there residing, the Emperor of Japan
would not be under any obligation to
accept the decision as decisive of the
rights of his subjects. This exact
situation was forcibly commented on
by Mr. Elaine in writing to Mr.
Comly in Hawaii, June 30, 1881:
" 'I am not aware whether or not
a treaty, according to the Hawaiian
Constitution is, as with us, a supreme
law of the land, upon the construction
of which — the proper case occurring —
every citizen would have the right to
the judgment of the courts. But,
even if it be so, and if the judicial de-
partment is entirely independent of
the executive authority of the Hawai-
ian government, then the decision of
the court would be the authorized in-
terpretation of the Hawaiian govern-
ment, and however binding upon that
government would be none the less a
violation of the treaty. In the event,
therefore, that a judicial construction
of the treaty should annul the privi-
leges stipulated and carried into prac-
tical execution, this government would
have no alternative and would be com-
pelled to consider such action as the
violation by the Hawaiian government
of the express terms and conditions
of the treaty, and, with whatever re-
gret, would be forced to consider what
course in reference to its own inter-
ests had become necessary upon the
manifestation of such unfriendly
feeling. '
"It is not unreasonable for a state
to feel itself free from any obligation
to yield to the interpretation given to
the provisions of a treaty by a local
tribunal of the other contracting
party. The right of a court to do jus-
tice between nations — to render, for
example, a decision as to the meaning
185 IMPLIED LIMITATIONS UPON TREATY-MAKING POWER. [§ 157
objects of treaty making, and such provisions always have been
reciprocal. During the entire history of the United States, pro-
visions of this description have been included in our treaties of
friendship, commerce, and navigation with practically all the
other nations of the world. Such provisions had been from time
immemorial the subject, of treaty agreements among the nations
of Europe before American independence; and the power to
make such provisions was exercised without question by the
Continental Congress in the treaties which it made prior to the
adoption of our Constitution." He said that it was not open to
doubt that when the delegates from the thirteen states "conferred
the power to make treaties upon the new National Government in
the broadest possible terms and without any words of limitation,
the subjects about which they themselves had been making
treaties then in force were included in the power."92
of a treaty, and which shall be legally
binding on the signatories thereto,
must be founded on their mutual con-
sent. This fact is now generally ap-
preciated by civilized states. It is
one of the reasons why nations are
willing to agree that disputes concern-
ing the interpretation of treaties, and
which cannot be adjusted through
diplomatic channels, may be referred
to international courts of arbitration,
such as the permanent Tribunal at
The Hague.
"On the other hand, by reason of
the learning and integrity of the Su-
preme Court of the United States,
and, therefore, on account of the
strong probability that its interpreta-
tion of the treaty of 1894 would be
the true interpretation, and such as an
international court of arbitration
would render under similar circum-
stances, it is not unlikely that the
Japanese Government would yield to
the decision of that tribunal and ad-
mit the correctness of its views. In
the present controversy, therefore, it
is not to be anticipated that a decision
by the highest court of the United
States adverse to the contentions of
Japan would be regarded by that
government as arbitrary or unreason-
able, or as not decisive of the rights
of the high contracting parties. ' '
92 He called attention to the treaties
of 1778 with France and of 1782 with
the States-General of the United
Netherlands, and of 1785 with Prus-
sia, ratified by the continental Con-
gress on May 17, 1786. He quoted
the language of Mr. Bancroft Davis,
summarizing the provisions of the
Prussian treaty: "The favored na-
tion clause put Prussia on the best
footing in the ports of Charleston,
Boston, Philadelphia, and New York,
no matter what the legislatures of
South Carolina, Massachusetts, Penn-
sylvania, or New York might say.
Aliens were permitted to hold per-
sonal property and dispose of it by
testament, donation, or otherwise, and
the exaction of State dues in excess
of those exacted from citizens of the
State in like cases were forbidden.
The right was secured to aliens to
frequent the coasts of each and all
the States, and to reside and trade
§ 158] CONSTRUCTION OF TREATIES, ETC. 186
§ 158. Distribution of governmental powers. — Mr. Root took
the view that inasmuch as the rights, privileges and immunities to
be given to foreign subjects in the United States and to Amer-
ican citizens in foreign countries form a proper subject of treaty
provision within the limits of the treaty-making power, and in-
asmuch as such rights, privileges and immunities may be accorded
in contravention of the laws of any state, it necessarily follows
that the treaty-making power alone has the authority to deter-
mine what shall be those rights, privileges and immunities.
"No state," said he, "can set up its laws as against the grant of
any particular right, privilege, or immunity any more than
against the grant of any other right, privilege or immunity. No
State can say a treaty may grant to alien residents equality of
treatment as to property, but not as to education, or as to the
exercise of religion and as to burial, but not as to education, or
as to education, but not as to property or religion. That would
be substituting the mere will of the State for the judgment of
the President and Senate in exercising a power committed to
them and prohibited to the States by the Constitution.
"There was, therefore, no real question of power arising under
this Japanese Treaty and no question of State rights.
"There were, however, questions of policy, questions of national
interests and of State interests, arising under the administration
of the treaty and regarding the application of its provisions to
the conditions existing on the Pacific coast.
"In the distribution of powers under our composite system of
government the people of San Francisco had three sets of inter-
ests committed to three different sets of officers — their special
interest as citizens of the principal city; and commercial port of
the Pacific coast represented by the city government of San
Francisco; their interest in common with all the people of the
State of California represented by the Governor and Legislature
at Sacramento ; and their interests in common with all the people
of the United States represented by the National Government at
Washington. 'Each one of these three different governmental
agencies had authority to do certain things relating to the treat-
there. Eesident aliens were assured ship; and when dying, they were
against State legislation to prevent guaranteed the right of decent burial
the exercise of liberty of conscience and undisturbed rest for their bod-
and the performance of religious wor- ies."
187
DISTRIBUTION OF GOVERNMENTAL POWERS.
158
ment of Japanese residents in San Francisco. These three inter-
ests could not be really in conflict; for the best interest of the
whole country is always the true interest of every State and city,
and the protection of the interests of every locality in the coun-
try is always the true interests of the Nation. ' ' 93
93 Speaking of the conference with
the officials of San Francisco, he said:
' ' There was, however, a supposed or
apparent clashing of interests, and, to
do away with this, conference, com-
munication, comparison of views, ex-
planation of policy and purpose were
necessary. Many thoughtless and
some mischievous persons have spoken
and written regarding these confer-
ences and communications as if they
were the parleying and compromise
of enemies. On the contrary, they
were an example of the way in which
the public business ought always to
be conducted; so that the different
public officers respectively charged
with the performance of duties affect-
ing the same subject-matter may work
together in furtherance of the same
public policy and with a common pur-
pose for the good of the whole coun-
try and every part of the country.
Such a concert of action with such a
purpose was established by the con-
ferences and communications between
the national authorities and the au-
thorities of California and San Fran-
cisco which followed the passage of
the Board of Education resolution.
"There was one great and serious
question underlying the whole subject
which made all questions of construc-
tion and of scope and of effect of the
treaty itself — all questions as to
whether the claims of Japan were well
founded or not; all questions as to
whether the resolution of the school
board was valid or not — seem tem-
porary and comparatively unimpor-
tant. It was not a question of war
with Japan. All the foolish talk
about war was purely sensational and
imaginative. There was never even
friction between the two Governments.
The question was, What state of feel-
ing would be created between the
great body of the people of the United
States and the great body of the
people of Japan as a result of the
treatment given to the Japanese in
this country?
"What was to be the effect upon
that proud, sensitive, highly civilized
people across the Pacific, of the dis-
courtesy, insult, imputations of in-
feriority and abuse aimed at them in
the columns of American newspapers
and from the platforms of American
public meetings? What would be the
effect upon our own people of the re-
sponses that natural resentment for
such treatment would elicit from the
Japanese?
' ' The first article of the first treaty
Japan ever made with a western
power provided:
1 ' ' There shall be a perfect, perma-
nent, and universal peace and a sin-
cere and cordial amity between the
United States of America on the one
part, and the empire of Japan on the
other part, and between their people
respectively, without exception of per-
sons or places.'
"Under that treaty, which bore the
signature of Matthew Calbraith Perry,
we introduced Japan to the world of
western civilization. We had always
been proud of her wonderful develop-
ment— proud of the genius of the race
that in a single generation adapted
§ 159]
CONSTRUCTION OF TREATIES, ETC.
188
§ 159. Suits by the government. — For the purpose of enforc-
ing what it deemed to be the rights of the Japanese under the
treaty, the United States filed a bill in equity in the circuit
court of the United States, in which it alleged that the acts of
the school authorities of San Francisco constituted a violation
of the treaty, and prevented the United States "from carrying
out its treaty obligations to the Empire of Japan and to its
citizens and subjects, as is the right and duty of the United
States, and imperatively demanded by the national interests."
The right of the United States to maintain such a proceeding was
based upon the principles announced in the Debs case,94 holding
that a court of equity has jurisdiction to issue an injunction for
the purpose of aiding the power and duty of the general govern-
ment to prevent a forcible obstruction of commerce and of the
transportation of the mails. In this case the principle was rec-
ognized that while the government may use force to prevent any
an ancient feudal system of the Far
East to the most advanced standards
of modern Europe and America. The
friendship between the two nations
had been peculiar and close. Was
the declaration of that treaty to be
set aside? At Kurihama, in Japan,
stands a monument to Commodore
Perry, raised by the Japanese in
grateful appreciation, upon the site
where he landed and opened negotia-
tions for the treaty. Was that monu-
ment henceforth to represent dislike
and resentment? Were the two peo-
ples to face each other across the Pa-
cific in future years with angry and
resentful feelings? All this was in-
evitable if the process which seemed
to have begun was to continue, and
the Government of the United States
looked with the greatest solicitude
upon the possibility that the process
night continue.
"It is hard for democracy to learn
the responsibilities of its power; but
the people now, not governments,
make friendship or dislike, sympathy
or discord, peace or war, between
nations. In this modern day, through
the columns of the myriad press and
messages flashing over countless wires,
multitude calls to multitude across
boundaries and oceans in courtesy or
insult, in amity or in defiance. For-
eign officers and ambassadors and
ministers no longer keep or break the
peace, but the conduct of each people
toward every other. The people who
permit themselves to treat the people
of other countries with discourtesy
and insult are surely sowing the wind
to reap the whirlwind, for a world of
sullen and revengeful hatred can
never be a world of peace. Against
such a feeling treaties are waste
paper and diplomacy the empty rou-
tine of idle form. The great ques-
tion which overshadowed all discus-
sion of the Treaty of 1894 was the
question: Are the people of the
United States about to break friend-
ship with the people of Japan? That
question, I believe, has been happily
answered in the negative. ' '
94 158 U. S. 564, 15 Sup. Ct. Kep.
900, 39 L. ed. 1092.
189 COLORED CHILDREk AND THE PUBLIC SCHOOLS. [§ 160
unlawful interference with interstate commerce and the trans-
portation of the mails, this right did not prevent it from appeal-
ing to the courts for a judicial determination of its powers, and
for the prevention of a threatened or continuous act, and that
the fact that the government has no pecuniary interest in the
matter is not a sufficient answer to an appeal for any proper
assistance in the exercise of its powers and the discharge of its
duties.95 As said by Mr. Justice Brewer: " Every government,
entrusted by the very terms of its being with powers and duties
to be exercised and discharged for the general welfare, has a
right to apply to its own courts for any proper assistance in the
exercise of the one and the discharge of the other, and it is no
sufficient answer to its appeal to one of these courts that it has
no pecuniary interest in the matter. The obligation which it is
under to promote the interest of all and to prevent the wrong-
doing of one resulting in injury to the general welfare is often
of itself sufficient to give it a standing in court. " 96 A proceed-
ing in mandamus was also brought by the father of a Japanese
child who had been excluded from all but the Oriental school,
asking that a writ issue reinstating him in the school which he
formerly attended. When the controversy was settled by the
withdrawal of the resolution objected to, the suits were dismissed.
§ 160. Colored children and the public schools. — The question
involved in the Japanese school controversy did not touch the
power of the state to legislate for its own citizens and to make
distinctions based upon color where equality of rights in sub-
stance was not denied. It may be said to be settled law that no
constitutional right is violated by the establishment of separate
schools for white and colored children.97 The privileges granted
by the law of a state to a child to attend the public schools is not
93 In re Debs, 158 U. S. 564, 15 Sup. Maryland Institute, 87 Md. 643, 41
Ct. Eep. 900, 39 L. ed. 1092. Atl. 126; Koberts v. City of Boston,
96 In re Debs, 158 U. S. 564, 15 Sup. 5 Gush. 198; State v. McCann, 21
Ct. Eep. 900, 39 L. ed. 1092. Ohio St. 198 ; Martin v. Board of Edu-
97 People v. Gallagher, 93 N. Y. cation, 42 W. Va. 514, 26 S. E. 348;
438, 45 Am. Rep. 232, affirming 11 Lehew v. Brummell, 103 Mo. 546, 23
Abb. N. C. 187; Cory v. Carter, 48 Am. St. Rep. 895, 15 S. W. 765, 11
Ind. 327, 17 Am. Rep. 738; McMillan L. R. A. 828; Ward v. Flood, 48 Cal.
v. School Committee, 107 N. C. 609, 49, 17 Am. Rep. 405.
12 S. E. 330, 10 L. R. A. 823; State v.
§ 161] CONSTRUCTION OF TREATIES, ETC. 190
a privilege that a citizen of the United States possesses as such,
and a person on the mere status of citizenship has no right to
demand admission into such schools. Still the privilege of an
education, in obedience to the provisions of a state constitution,
is a legal right to the same extent as a vested right in property.98
§ 161. Same facilities for education to be afforded. — The legis-
lature, in creating a system of education for the children of the
state, cannot exclude colored children from the lienefits of such
system because of their African descent merely, but a law which
provides for the education of children of African descent in sepa-
rate schools is not in conflict with the Constitution. The sepa-
rate schools, however, should afford the same facilities for educa-
tion."
The question in the Japanese school case was (assuming that a
privilege of residence included the right of education), Could
the national government, by treaty, guarantee that the subjects
of the treaty-making power should be placed on the ground of
equality with other aliens and not discriminated against on the
assumption of racial inferiority? In this connection it might be
urged that an alien would have a better right or a different right
than one native-born, because the latter, on account of color,
might be sent to a different school. But even if this were so, it
all comes back to the proposition whether a treaty may not sus-
pend the powrer of the state to legislate in any manner obnoxious
to the treaty.
A state court may refuse, on grounds of public policy, to apply
the doctrine of comity so as to subject by attachment to the pay-
ment of an indebtedness due a German corporation from a German
subject a fund within the state to which one of its own citizens as-
serts a claim, where the effect of such action would be to remove
the fund to a foreign country, to be administered in favor of the
foreign creditors.100
98 Ward v. Flood, 48 Cal. 36, 17 10° Discontento Gesellschaft v. Urn-
Am. Eep. 405. breit, decided February 24, 1908, 9
99 Ward v. Flood, 48 Cal. 36, 17 Advance Sheets, U. S. Sup. Ct. Opin-
Am. Eep. 405. ions, 337.
191 CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. [§ 162
CHAPTER VIII.
CONFLICT BETWEEN TREATIES AND ACTS OF CONGEESS.
§ 162. Treaties supreme law of land.
§ 163. History of clause.
§ 164. • Pre-existing treaties.
§ 165. Under the authority of the United States.
§ 166. Construction of clause.
§ 167. Treaty is equivalent to an act of Congress.
§ 168. Treaty is a contract.
§ 169. Tariff laws and treaties.
§ 170. Acts admitting states to Union.
§ 171. Treaties with Indians.
§ 172. Acts of admission affecting navigable waters.
§ 173. Damages for temporary inconvenience.
§ 174. Building bridges.
§ 175. Head money cases.
§ 176. Reconciling act and treaty.
§ 177. Absurd conclusion to be avoided.
§ 178. Repeal by implication.
§ 179. Fair construction not permitting arrest on prior conviction.
§ 180. Reasoning of the court.
§ 181. Extension of treaty by doubtful construction.
§ 182. Abrogation must clearly appear.
§ 183. Dissenting views of Justices Field and Bradley.
§ 184. Same rule as to repeal of statutes by implication.
§ 185. Self -executing treaties.
§ 186. Chinese exclusion cases.
§ 187. Chinese children born in the United States.
§ 188. Application of fourteenth amendment.
§ 189. Right to return.
§ 190. Power of state to exclude.
§ 191. Construction of exclusion laws.
§ 192. Conclusiveness of decision of department.
§ 193. Hearing arbitrarily denied.
§ 162. Treaties supreme law of land. — The Constitution de-
clares that treaties shall be the supreme law of the land. The
clause on this subject is: "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
§ 163] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 192
judges in every state shall be bound thereby, anything in the
Constitution or laws of any state to the contrary notwithstand-
ing."1
§ 163. History of clause. — When the constitutional convention
had assembled, Governor Kandolph, of Virginia, on May 29th
offered a series of resolutions for the consideration of the con-
vention, which became known as the "Virginia plan," and in
relation to treaties contained this clause: "The national legisla-
ture ought to be empowered .... to negative all laws passed by
the several states, contravening in the opinion of the national
legislature, the Articles of Union, or any treaty subsisting under
the authority of the Union. ' ' Much discussion took place in the
convention over this clause, it being objected that the states would
become disgusted, and Luther Martin stated that he considered the
clause improper, and inquired whether the laws of the states
were to be transmitted to the general legislature before they
could become operative. By others the provision was thought
necessary, and it was urged that unless a negative power existed,
the propensity of the states to disarrange and embarrass the sys-
tem could not be restrained. The clause was defeated by a vote
of seven to three, and then the following resolution introduced by
Luther Martin was adopted: "That the legislative acts of the
United States, made by virtue and in pursuance of the Articles of
Union, and all treaties made and ratified under the authority of
the United States, shall be the supreme law of the respective
states, so far as these acts or treaties shall relate to the said
states, or their citizens and inhabitants ; and that the judiciaries
of the several states shall be bound thereby in their decisions,
anything in the respective laws of the individual states to the
contrary notwithstanding. ' ' 2 The proposition, although adopted,
was referred to the Committee on Detail, who reported the pro-
vision thus :
"Article VIII. The acts of the legislature of the United States
made in pursuance of this Constitution, and all treaties made un-
der the authority of the United States, shall be the supreme law
of the several states, and of their citizens and inhabitants; and
the judges in the several states shall be bound thereby in their
1 Art. VI, cl. 2. 2 1 Elliot, 207, V, 322.
193 PRE-EXISTING TREATIES. [§ 164
decisions, anything in the constitutions or laws of the several
states to the contrary notwithstanding."
When the convention took up the clause for consideration, it
amended it by inserting the word, "Constitution," and by chang-
ing the words "acts of the legislature" to "laws," so that in its
amended form it read: "This Constitution, and the laws of the
United States made in pursuance thereof, and all the treaties made
under the authority of the United States, shall be the supreme
law of the several states, and of their citizens and inhabitants;
and the judges of the several states shall be bound thereby in
their decisions, anything in the Constitutions or laws of the sev-
eral states to the contrary notwithstanding."3
§ 164. Pre-existing treaties. — Later the clause was amended
by inserting the words "or which shall be made" after the words
"all treaties made," for the purpose of removing any doubt that
might exist as to the application of the clause to pre-existing
treaties, by using language that covered both past and future
treaties. The clause was then referred to the "Committee on
Style," who struck out the words "in their decisions" after the
words "bound thereby"; substituted the words "in every state"
for the words "of the several states"; before the word "made"
after the words "United States" inserted the words "which shall
be," and substituted the phrase "supreme law of the land" for
the phrase "supreme law of the several states, and of their
citizens and inhabitants." This left the clause in the form in
which it now appears in the Constitution. The convention re-
jected a proposition that "no treaty should be binding on the
United States unless ratified by law. " 4
Mr. George Ticknor Curtis, speaking of the amendment to this
clause, to make the Constitution, and the laws passed in pur-
suance of it, the supreme law of the land, binding upon all judicial
officers, says: "It is a remarkable circumstance that this pro-
vision was originally proposed by a very earnest advocate of the
rights of the States — Luther Martin. His design, however, was
to supply a substitute for a power over State legislation, which
had been embraced in the Virginia plan, and which was to be
8 5 Marshall 'a Life of Washington, 4 5 Marshall 's Life of Washington,
654. 654-658.
Treaties — 13
§ 165] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 194
exercised through, a negative by the national legislature upon all
laws of the States contravening, in their opinion, the Articles of
Union or the treaties subsisting under the authority of the Union.
The purpose of the substitute was to change a legislative into a
judicial power, by transferring from the national legislature to
the judiciary the right of determining whether a state law sup-
posed to be in conflict with the Constitution, laws, or treaties
of the Union should be inoperative or valid. By extending the
obligation to regard the requirements of the national Constitu-
tion and laws to the judges of the state tribunal, their supremacy
in all the judicatures of the country was secured. This obliga-
tion was enforced by the oath or affirmation to support the Con-
stitution of the United States ; and, as we shall see hereafter, lest
this security should fail, the final determination of questions of
this kind was drawn to the national judiciary, even when they
might have originated in a state tribunal. ' ' 5
§ 165. Under the authority of the United States.— It will be
observed that in this clause of the Constitution it is declared that
all laws which shall be made "in pursuance" of the Constitution
shall be the supreme law of the land, but that as to treaties, the
language is, "All treaties made, or which shall be made, under
the authority of the United States shall be the supreme law of the
land." The explanation given for this difference of phraseology
is that at the time the Constitution was adopted, certain treaties
were in existence which had been entered into by Congress under
the confederation, and it was desired to declare their continuing
obligation. By using the phrase "under the authority of the
United States," treaties previously made were placed on the
same footing as those that might be made after the adoption of
the Constitution, as such former treaties could not properly be
described as made pursuant to a Constitution which had not yet
been adopted.6
"The power to make treaties and to send ambassadors and
other public ministers and consuls are essential attributes of
national sovereignty, and of that international equality which
the interests of every sovereignty require it to preserve. Both
5 Curtis' Constitutional History of tion of the United States, 1st ed.,
the United States, 2d ed., p. 554. p. 58, 2d ed., p. 65.
6 Bawle's A View of the Constitu-
195 CONSTRUCTION OF CLAUSE. [§ 166
powers were possessed by Congress under the Confederation, but
not to the extent to which they are now enjoyed; for then the
former power was embarrassed by an exception, under which
treaties might be substantially frustrated by regulations of the
States, and the latter did not comprehend ' other public ministers
and consuls.'
"As treaties with France and Holland, and especially the treaty
of peace with Great Britain, existed, it became necessary to vary
its terms in regard to treaties, from those relative to the laws of
the United States; the declaration it contains in respect to the
supremacy of the latter operating only in future, while in refer-
ence to the former the terms are, 'All treaties made, or which shall
be made, under the authority of the United States, shall be the
supreme law of the land.' These terms were intended to apply
equally to previously existing treaties, as well as to those made
subsequently to the Constitution; and it has, accordingly, been
adjudged by the Supreme Court that they effectually repeal so
much of the State laws and Constitutions as are repugnant to
them."7
§ 166. Construction of clause. — The Constitution declares that
all treaties made under the authority of the United States shall
be the supreme law of the land. In an early case the supreme
court of the United States was called upon to construe this
clause. In 1796 it decided that by the treaty of peace made be-
tween Great Britain and the United States, on September 3,
1783, the law of Virginia sequestering British property was nul-
lified. Under this statute a debt due before the war from an
American to a British subject was, during the progress of the
war, paid into the loan office of Virginia. The treaty, it was
held, destroyed the payment made under the statute, revived the
debt, and gave a right of recovery against the principal debtor.8
It was conceded that the legislature of Virginia had power to
enact such a law because from the 4th of July, 1776, to the forma-
tion of the confederation, the American states possessed and
exercised all the rights of independent governments, but the
T William A. Duer's A Course of 8 Ware v. Hylton, 3 Dall. 235, 1 L.
Lectures on the Constitutional Juris- ed. 568.
prudence of the United States, 2d
ed., Lect. VIII, p. 227.
§§ 167, 168] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 196
treaty under the provisions of the Constitution declaring treaties
to be the supreme law of the land, it was decided, superseded
the act.9
§ 167. Treaty is equivalent to an act of Congress. — While it
is true that a treaty is the supreme law of the land, it is not su-
preme in the same sense as is the Constitution itself. A treaty
is equivalent in legal effect to a law of Congress, and a subsequent
act of Congress will repeal or annul a prior treaty, as will a
subsequent treaty annul a prior act of Congress, where there is
a conflict. From the very nature of the Constitution a treaty
cannot alter it, nor can a treaty be valid if it violates any of its
provisions. The Constitution does not attempt to settle the effect
of treaties when they conflict with acts of Congress, but the
courts have uniformly announced the rule that a treaty may
supersede a prior act of Congress, or an act of Congress may
supersede a prior treaty.10
§ 168. Treaty is a contract. — A treaty is essentially a contract
between two independent nations. If one of the contracting par-
ties violates the stipulations of the treaty, a remedy for the vio-
lation must be sought by the party injured by reclamations upon
the other, and the courts cannot determine whether the nation
alleging a breach of treaty obligations has just cause of com-
plaint. The validity of a law clear in its provisions cannot be
assailed before the courts on the ground that it does not conform
to the stipulations of a prior treaty.11 No superior efficacy can
9 Ware v. Hylton, 3 Call. 235, 1 L. 10 The Cherokee Tobacco, 11 Wall,
ed. 568. Said Mr. Justice Chase: "I 616, 20 L. ed. 227; Ward v. Eace
apprehend that the treaty of peace Horse, 163 U. S. 511, 16 Sup. Ct,
abolishes the subject of the war, and 1078, 41 L. ed. 246; North etc. S. S.
that after peace is concluded neither Co. v. Hedden, 43 Fed. 22; Clark v.
the matter in dispute nor the conduct Bates, 1 Dak. 50, 46 N. W. 512; Bar-
pf either party, during the war, can tram v. Eobertson, 21 Blatchf. 214, 15
ever be revived or brought into con- Fed. 214; Minnesota Canal & Power
test again. All violences, injuries, or Co. v. Pratt (Minn.), 112 N. W.
damages, sustained by the govern- 395.
ment, or people of either, during the " Whitney v. Kobertson, 124 U. S.
'war are buried in oblivion; and all 194, 8 Sup. Ct. Eep. 456, 31 L. ed.
these things are implied in the very 386.
treaty of peace; and therefore not
necessary to be expressed."
197 TARIFF LAWS AND TREATIES. [§ 169
be given to a treaty over an act of Congress. It is the endeavor
of the courts, if they both relate to the same subject, to give
them a construction that will make both effective, if this can be
accomplished without violating the language of either. If, how-
ever, there is an inconsistency between them, the one last in date
will control the other, if the stipulation on the subject in the
treaty is self-executing. If the action taken by the legislative
department is not satisfactory to the country with which the
treaty has been made, it may adopt such measures as it deems
proper for the protection of its interests, but it is beyond the
powers of the courts to give any redress. The courts cannot
determine whether the legislation of Congress was justified or
whether the nation complaining has just cause to complain. The
decision of questions of this character belong to the diplomatic
and legislative departments of the government and not to the
judiciary.12 ' ' So far as a treaty made by the United States with
any foreign nation can be the subject of judicial cognizance in
the courts of this country, it is subject to such acts as Congress
may pass for its enforcement, modification or repeal."13 An
act of Congress imposing taxes on distilled spirits and tobacco
applies to the country of the Cherokee Nation, and prevails over
the treaty with that nation.14
§ 169. Tariff laws and treaties. — The question as to the effect
of tariff laws upon treaty stipulations has frequently arisen, and
it has been uniformly held that treaty stipulations, when a con-
flict arises, are annulled, or perhaps, more correctly speaking,
suspended, by the later acts of Congress. The legislative de-
partment may place restrictions and obligations upon all who
owe obedience to our laws, with the understanding, of course, that
the nation, in its character as a nation, may be responsible to
another nation for any breach of treaty obligations. The legis-
12 Whitney v. Kobertson, 124 U. S. Pet. 314, 7 L. ed. 415; and a prior
194, 8 Sup. Ct. Kep. 456, 31 L. ed. treaty may be superseded by an act
386; Taylor v. Morton, 2 Curt. 454, of Congress. Taylor v. Morton, 2
Fed. Gas. No. 13,799. Curt, 454, Fed. Gas. No. 13,799; The
13 Head Money Cases, 112 U. S. 580, Clinton Bridge, 1 Woolw. 155, Fed.
5 Sup. Ct. Eep. 247, 28 L. ed. 798; Gas. No. 2900.
A treaty may supersede a prior act 14 Cherokee Tobacco v. United
of Congress. Foster v. Neilson, 2 States, 11 Wall. 616, 20 L. ed. 227.
§ 169] CONFLICT BETWEEN TREATIES AND ACTS OP CONGRESS. 198
lation of Congress, however, must be respected by the courts, and
the only question for them to decide is whether a law has been
enacted annulling or disregarding the provisions of a treaty.
Where such a law has been passed, it must, notwithstanding the
treaty, be enforced.
The fourth article of the treaty with Denmark, which was
concluded on April 26, 1826, and abrogated, but subsequently re-
vived, with the exception of one article, on the 12th of January,
1858, provided: "No higher or other duties shall be imposed
on the importation into the United States of any article, the
produce or manufacture of the dominions of His Majesty, the
King of Denmark ; and no higher or other duties shall be imposed
upon the importation into said dominions of any article the
produce or manufacture of the United States, than are or shall
be payable on the like articles being the produce or manufacture
of any other foreign country." Under a treaty made with the
Hawaiian Islands in 1875, in consideration of reciprocal conces-
sions, sugar imported into the United States was exempt from
the payment of duty. It was contended that by virtue of this
treaty sugar imported from Danish possessions should also be
admitted free of duty; but the court held that the provisions
of the treaty with Denmark were pledges that in the imposition
of duties upon goods imported into one of the countries which
were the produce or manufacture of the other, there should not
be any discrimination against them in favor of goods of a similar
character imported from any other country, and that while they
placed an obligation upon both countries to avoid hostile legis-
lation, they were not intended to prevent the special arrange-
ments with other countries based upon a concession of special
privileges.15
Likewise it was held that the treaty with the Dominican Re-
public was never intended to prevent special concessions, founded
upon sufficient consideration, permitting the importation of spe-
cific articles into this country free from duty.16 A stipulation in
15 Bartram v. Kobertson, 122 U. S. ninth article of the treaty with the
116, 7 Sup. Ct. Eep. 1115, 30 L. ed. Dominican Eepublic: "No higher or
1118. other duty shall be imposed on the
16 Whitney v. Eobertson, 124 U. S. importation into the United States of
192, 8 Sup. Ct. Eep. 457, 31 L. ed. any article the growth, produce or
387. Eeliance was placed on the manufacture of the Dominican Ee-
\ UNIVERSITY
199
OF
ITTING STATES TO UNION.
[§ 170
a treaty that no higher duties shall be imposed than are placed
on goods from other countries is a promise addressed to the
political, and not to the judicial, department of the government.17
§ 170. Acts admitting states to Union. — The right of Indians
to hunt may be revoked by an act admitting a territory to be-
come a state, so that such Indians may be punished for a viola-
tion of the laws of the state enacted after its admission.18 The
states have power to regulate matters of internal police. A state,
on its admission, is vested with all the rights of dominion and
sovereignty possessed by the original states.19 The power of
the state, however, to tax lands of Indians under patents issued
to them by virtue of treaties made with their respective tribes
may be excluded by the enabling act ;20 and taxes assessed by the
laws of a state upon Indian reservations conflicting with their
tribal rights as guaranteed to them by treaties with the United
States are illegal and void.21
public, or of her fisheries; and no
higher or other duty shall be imposed
on the importation into the Dominican
Eepublic of any article the growth,
produce or manufacture of the United
States, or their fisheries, than are or
shall be payable on the like articles
the growth, produce or manufacture
of any other foreign country or its
fisheries." Mr. Justice Field said
that ' * if there be any conflict between
the stipulations of the treaty, and the
requirements of the law, the latter
must control. A treaty is primarily
a contract between two or more inde-
pendent nations, and is so regarded
by writers on public law. For the in-
fraction of its provisions a remedy
must be sought by the injured party
through reclamations upon the other. ' '
See as to Act of Congress claimed to
be in conflict with treaty with Persia,
Powers v. Comly, 101 U. S. 789, 25
L. ed. 805; Hadden v. Collector, 5
Wall. 107, 18 L. ed. 518; Sturges v.
Collector, 12 Wall. 19, 20 L. ed. 255.
See, also, as to discriminating duties
as affected by the treaty with Por-
tugal, Oldfield v. Marriott, 10 How.
146, 13 L. ed. 364.
17 Taylor v. Morton, 2 Curt. 454,
Fed. Gas. No. 13,799. See, also,
Ropes v. Clinch, 8 Blatchf. 304, Fed.
Cas. No. 12,041; Foster v. Neilson, 2
Pet. 314, 7 L. ed. 415. Where it was
claimed that a law of Congress rela-
tive to custom duties was in conflict
with a treaty with Germany, it was
held that the act must control, be-
cause it was of equal force with the
treaty and of later date. North Ger-
man Lloyd S. S. Co. v. Hedden, 43
Fed. 17.
38 Ward v. Eace Horse, 163 U. S.
511, 16 Sup. Ct. Kep. 1078, 41 L. ed.
246, reversing same case in 70 Fed.
608.
19 Escanaba etc. Co. v. Chicago,
107 U. S. 678, 2 Sup. Ct. Kep. 185,
27 L. ed. 442.
20 The Kansas Indians, 72 U. 3.
(5 Wall.) 737, 18 L. ed. 667.
21 Fellows v. Denniston ("The New
York Indians"), 72 U. S. (5 Wall.)
761," 18 L. ed. 708.
§§ 171, 172] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 200
"Doubtless the rule that treaties should be so construed as to
uphold the sanctity of the public faith ought not to be departed
from. But that salutary rule should not be made an instrument
for violating the public faith by distorting the words of a treaty,
in order to imply that it conveyed rights wholly inconsistent
with its language and in conflict with an act of Congress, and
also destructive of one of the rights of the states."22
§ 171. Treaties with Indians. — Subsequent treaties with In-
dians were considered as modifying a prior nonintercourse law.23
The act admitting Colorado repealed the treaties with the Utes
inconsistent with the act of admission.24 Notwithstanding the
provisions of a treaty, Mexican grants of land in California are
not effective without confirmation.25 The state of Montana, by
its enabling acts, obtained jurisdiction over crimes committed by
Indians.26
The treaty exempting the Osage and Kansas Indian lands from
inclusion within any territory or state must yield to the act of
Congress creating the territory of Oklahoma, which included such
lands within its limits.27 The law of .that territory subjecting to
taxation cattle which are kept or grazed on the Indian reser-
vation is not violative of the rights of the Indians, because
such taxation is not placed upon the lands or privileges of the
Indians.28
§ 172. Acts of admission affecting navigable waters. — A clause
in the act of admission of a state declaring that the navigable
22 Ward v. Kace Horse, 163 U. S. 26 Draper v. United States, 164 U.
511, 16 Sup. Ct. Eep. 1078, 41 L. ed. S. 243, 17 Sup. Ct. Rep. 108, 41 L. ed.
246, per Mr. Justice White. In that 420. In a case arising in Oregon, the
case Mr. Justice Brown dissented, be- court conceded that an act of Congress
cause the opinion of the court seemed might repeal a treaty, but held that
to him "to imply and sanction a dis- the act of admission should not be
tinct repudiation by Congress of a construed on account of its silence on
treaty with the Bannock Indians." the subject as having the effect to
23 Clark v. Bates, 1 Dak. 50, 46 N. modify the treaty. United States v.
W. 512. Bridleman, 7 Saw. 251, 7 Fed. 902.
24 United States v. McBratney, 104 2T Thomas v. Gay, 169 U. S. 271,
U. S. 623, 26 L. ed. 870. 18 Sup. Ct. Eep. 342, 42 L. ed. 743.
-5 Botiller v. Dominguez, 130 U. S. * Thomas v. Gay, 169 U. S. 271, 18
247, 9 Sup. Ct. Eep. 527, 32 L. ed. Sup. Ct. Eep. 342, 42 L. ed. 743.
929, citing cases.
201 DAMAGES FOR TEMPORARY INCONVENIENCE. [§§ 173, 174
waters within the state shall be free to the United States does
not in any manner affect the power which the state might exer-
cise over the subject, if the clause did not exist.29
"The act admitting California," said Mr. Justice Field, "de-
clares that she is admitted into the Union on an equal footing
with the original states in all respects whatever. She was not,
therefore, shorn, by the clause as to navigable waters within her
limits, of any of the powers which the original states possessed
over such waters within her limits. ' ' 30
§ 173. Damages for temporary inconvenience. — Private per-
sons are not entitled to damages for a temporary inconvenience,
in common with the public in general, caused by the exercise
of a right given by law for the public benefit. The directions
of a state providing for the form and character of a bridge will
control irrespective of its effect upon navigation, except as
against congressional action.31
The manner in which the highways of a state, by land or by
water, shall be improved for the best interests of the public is a
matter for the state to determine, subject to the intervention of
Congress when such highways become the means of interstate and
foreign commerce. A state may exact reasonable tolls to com-
pensate for the use of artificial facilities for the improvement of
navigation.32
§ 174. Building bridges. — If a bridge is built over a navigable
stream in pursuance of a valid authorization from the state, it
cannot be adjudged a nuisance. Nor can the provision in the act
of admission "that all navigable waters within the state shall be
29 Cardwell v. American Elver 30 Cardwell v. American Eiver
Bridge Co., 113 U. S. 205, 5 Sup. Ct. Bridge Co., 113 U. S. 205, 5 Sup. Ct.
Eep. 423, 28 L. ed. 959. The clause Eep. 423, 28 L. ed. 959. See, also,
affected by the decision was that of Escanaba etc. Co. v. Chicago, 107 U. S.
the act of September 9, 1850, that 678, 2 Sup. Ct. Eep. 185, 27 L. ed.
"All the navigable waters within the 442; Pound v. Turck, 95 U. S. 459,
said state shall be common highways 24 L. ed. 525.
and forever free, as to the inhabitants 31 Hamilton v. Vicksburg etc. E. E.
of said state, and as to the citizens Co., 119 U. S. 285, 7 Sup. Ct. Eep.
of the United States, without any 208, 30 L. ed. 395.
tax, impost or duty therefor." 9 32 Huse v. Glover, 119 U. S. 547, 7
Stats, at Large, 454. Sup. Ct. Eep. 315, 30 L. ed. 490.
§ 175] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 202
highways forever," impair the power of the state to grant au-
thority for the construction of bridges over navigable streams.33
It is not a violation of the act of Congress admitting Oregon
as a state to build a bridge over the Willamette river. Nor can
it be assumed that Congress has exercised police power over a
navigable river because it has expended money in improving its
navigation.34 The act of Congress of March 3, 1899,35 authoriz-
ing the construction of bridges over navigable waters, and the
obstruction of such waters by the construction of bridges, is not
in conflict with the Ashburton treaty of 1842, although a sub-
stantial diversion of the water might be a violation of the treaty.36
§ 175. Head money cases. — A treaty, while primarily a com-
pact between independent nations, may also confer private rights
on citizens or subjects of the contracting powers, enforceable by
the courts. The treaty during its existence is the supreme law
of the land, in all courts where such rights are to be adjudicated,
but such treaty may be annulled or suspended by an act of Con-
gress. The supreme court of the United States has frequently
decided statutes of a state imposing a tax on immigrants to
be void, because the power to enact such statutes was vested ex-
clusively in Congress. But Congress has power to pass such an
act, and in 1882 did pass an act to regulate immigration, imposing
upon the owners of vessels who should bring passengers from a
foreign port into a port of the United States a duty of fifty cents
for every passenger who was not a citizen of this country. This
was held to be a valid exercise of the power to regulate com-
merce with foreign nations.37 It was contended that this act
violated provisions contained in numerous treaties with friendly
nations. The court said they were not satisfied that the act
violated any of such treaties, or any just construction of them,
33 People v. Potrerio & B. V. E. E. Hatch, 125 U. S. 1, 8 Sup. Ct. Eep.
Co., 67 Cal. 166, 7 Pac. 446. See, 811, 31 L. ed. 629.
also, Scheurer v. Columbia etc. Co., 11 33 Stats, at Large, 1151.
Saw. 575, 27 Fed. 174; State v. Dis- 36 Minnesota Canal & Power Co. v.
trict Board, 76 Wis. 207, 20 Am. St. Pratt (Minn.), 112 N. W. 395.
Kep. 58, 44 N. W. 977, 7 L. E. A. 3T Edye v. Eobertson (Head Money
340; Keator etc. Co. v. St. Croix, 72 Cases), 112 U. S. 580, 5 Sup. Ct. Eep.
Wis. 84, 7 Am. St. Eep. 850, 38 N. 247, 28 L. ed. 798. See as to state
W. 537. statutes, "The Passenger Cases," 7
34 Willamette Iron Bridge Co. v. How. (U. S.) 283, 12 L. ed 702.
203 HEAD MONEY CASES. [§ 175
but did not place the defense of the act against this objection
upon that suggestion. "We are of the opinion," said the court,
"that so far as the provisions in this act may be found to be
in conflict with any treaty with a foreign nation, they must pre-
vail in all the judicial courts of this country." The court cited
the provision of the Constitution making treaties the supreme law
of the land, and said :
"A treaty, then, is a law of the land as an Act of Congress is,
whenever its provisions prescribe a rule by which the rights of
the private citizen or subject may be determined. And when
such rights are of a nature to be enforced in a court of justice,
that court resorts to the treaty for a rule of decision for the
case before it, as it would to a statute. But even in this aspect
of the case, there is nothing in this law which makes it irrepeal-
able or unchangeable. The Constitution gives it no superiority
over an Act of Congress in this respect, which may be repealed
or modified by an Act of a later date. Nor is there anything in
its essential character or in the branches of the government by
which the treaty is made, which gives it this superior sanctity.
A treaty is made by the President and the Senate. Statutes
are made by the President, the Senate and the House of Repre-
sentatives. The addition of the latter body to the other two in
making a law certainly does not render it less entitled to respect
in the matter of its repeal or modification than a treaty made
by the other two. If there be any difference in this regard, it
would seem to be in favor of an Act in which all three of the
bodies participate. And such is, in fact, the case in a declaration
of war, which must be made by Congress, and which, when made,
usually suspends or destroys existing treaties between the Nations
thus at war. ' ' 38
So the act of Congress commonly called the "assisted immigra-
tion act " is a constitutional exercise of the power conferred upon
Congress to regulate commerce with foreign nations.39 The act
38 Edye v. Kobertson, 112 U. S. 580, v. United States, 143 U. S. 578, 12
5 Sup. Ct. Rep. 247, 28 L. ed. 798. Sup. Ct. Eep. 525, 36 L. ed. 269;
See, also, Nishimura Ekin v. United Fong Yue Ting v. United States, 149
States, 142 U. S. 659, 12 Sup. Ct. Eep. U. S. 698, 13 Sup. Ct. Eep. 1025, 37
338, 35 L. ed. 1149; The Chinese Ex- L. ed. 916.
elusion Case, 130 U. S. 600, 9 Sup. 39 United States v. Craig, 28 Fed.
Ct. Eep. 628, 32 L. ed. 1073; Homer 795.
§ 176] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 204
prohibiting the importation of alien labor under contract is :
valid exercise of constitutional power.40
§ 176. Reconciling act and treaty. — As a treaty and an act
of Congress stand on the same footing, they are both to be con-
sidered as statutes, existing on the same subject. When in con-
flict, the last in date will prevail. But courts will attempt to
reconcile them, if possible, so that both may stand and have
effect, and the rule applied in the construction of all statutes that
repeals by implication are not favored will be enforced. In other
words, so far as the courts are concerned, an act of Congress and
a treaty, when in conflict, present the ordinary question of con-
flicting laws, the last modifying or superseding the former, but
both to be made effective if it is possible to do so.41 The courts
will not impute to Congress an intention to violate an important
provision of a treaty. It must clearly and unequivocally appear
that such was the intention, and when it is claimed that Congress
so intended, there must be no other reasonable construction of the
language which is supposed to constitute the violation.42
40 In re Florio, 43 Fed. 115.
41 In re Ah Lung, 18 Fed. 28, 9
Saw. 306; In re Chin A On, 18 Fed.
506, 9 Saw. 343; In re Tung Yeong,
19 Fed. 185, 9 Saw. 620; In re Ho
King, 14 Fed. 726, 8 Saw. 438;
Chinese Merchant »s Case, 13 Fed. 605 ;
7 Saw. 546; Castro v. De.Uriate, 16
Fed. 93; Chew Heong v. United
States, 112 U. S. 536, 5 Sup. Ct. Eep.
255, 28 L. ed. 770; Whitney v. Rob-
ertson, 124 U. S. 195, 8 Sup. Ct. Eep.
457, 31 L. ed. 387; Ropes v. Clinch,
8 Blatchf. 309, Fed. Gas. No. 12,041;
Matter of Lobrasciano, 38 Misc.
Rep. 415, 77 N. Y. Supp. 1040; Baker
v. Newland, 25 Kan. 25.
42 In re Chin A On, 18 Fed. 506, 9
Saw. 343.
Mr. Duer, in his lectures, says:
1 i A treaty, in its general sense, is a
compact entered into with a foreign
power, and extends to all matters
which are usually the subject of com-
pact between independent nations. It
is, in its nature, a contract, and not
a legislative act; and does not, ac-
cording to general usage, effect of
itself the objects intended to be ac-
complished by it, but requires to be
carried into execution by some sub-
sequent act of sovereign power by the
contracting parties, especially in cases
where it is meant to operate within
the territories of either of them.
With us, however, a different prin-
ciple is established, in certain cases.
It has been settled by the Supreme
Court, that, inasmuch as the Consti-
tution declares a treaty to be the law
of the land, it is to be regarded in
Courts of Justice as equivalent to an
act of Legislature, whenever it oper-
ates of itself without requiring the
aid of any legislative provision.
But when the terms of any treaty
stipulation import an executory con-
tract, it addresses itself to the politi-
205
RECONCILING ACT AND TREATY.
[§ 176
"By the Constitution a treaty is placed on the same footing,
and made of like obligation, with an act of legislation. Both
are declared by that instrument to be the supreme law of the
land, and no superior efficacy is given to either over the other.
When the two relate to the same subject, the courts will always
endeavor to construe them so as to give effect to both, if that
can be done without violating the language of either, but if the
two are inconsistent, the one last in date will control the other,
provided always the stipulation of the treaty on the subject is
cal, and not to the judicial, depart-
ment for execution, and Congress
must pass a law in execution of the
compact, before it becomes a rule
for the Courts. The Constitution
does not expressly declare whether
treaties are to be held superior to the
Acts of Congress, or whether the laws
are to be deemed coequal with, or
superior to treaties; but the repre-
sentation it holds forth to foreign
powers is that the President, by and
with the advice and consent of the
Senate, may bind the nation in all
legitimate contracts; and if pre-ex-
isting laws, contrary to a treaty, could
only be abrogated by Congress, this
representation would be fallacious.
It would subject the public faith to
just imputation and reproach, and
destroy all confidence in the national
engagements. The immediate opera-
tion of a treaty must, therefore, be
to overrule all existing laws incom-
patible with its stipulations.
''Nor is this inconsistent with the
power of Congress to pass subsequent
laws, qualifying, altering or wholly
annulling a treaty; for such an au-
thority, in certain cases, is supported
on grounds wholly independent of the
treaty-making power. For, as Con-
gress possesses the sole right of de-
claring war, and as the alteration or
abrogation of a treaty tends to pro-
duce it, the power in question may be
regarded as an incident to that of
declaring war. The exercise of such
a right may be rendered necessary to
the public welfare and safety, by
measures of the party with whom the
treaty was made, contrary to its spirit,
or in open violation of its letter; and
on such grounds alone can this right
be reconciled either with the provisions
of the Constitution, or the principles
of public law. A memorable instance
has occurred in our history of the an-
nulment of a treaty by the act of the
injured party, in the year 1798,
Congress declared that the treaties
with France were no longer obliga-
tory on the United States, as they
had been repeatedly violated by the
French Government, and our just
claims for reparation disregarded.
Nevertheless, all treaties, as soon as
ratified by competent authority, be-
come of absolute efficacy, and, as
long as they continue in force, are
binding upon the whole nation. If
a treaty requires the payment of
money to carry it into effect, and the
money can only be raised or appro-
priated by an Act of the Legislature,
it is morally obligatory upon the leg-
islative power 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 with the power of
§§ 177, 178] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 206
self-executing. If the country with which the treaty is made is
dissatisfied with the action of the legislative department, it may
present its complaint to the executive head of the government,
and take such other measures as it may deem essential for the
protection of its interests. The courts can afford no redress.
Whether the complaining nation has just cause of complaint, or
our country was justified in its legislation, are not matters for
judicial cognizance. ' ' 43
§ 177. Absurd conclusion to be avoided. — In the construction
of statutes or of a statute and a treaty, an unjust or absurd
conclusion must be avoided. General terms are to be limited and
construed so as not to lead to injustice, oppression or absurd
consequences.44 Nor will an act be given a retrospective opera-
tion if thereby rights previously vested would be injuriously
affected, unless such construction is compelled by language so
clear and positive as to permit no doubt to exist that such was
the intention of the legislature.45
§ 178. Repeal by implication. — The rule prevailing in the con-
struction of statutes that repeals by implication are not favored,
and that a later statute will not impliedly repeal a former, unless
making treaties may bind the national the public domain, or other property
faith at its discretion; for the treaty- belonging to it; but if there be no
making power must be coextensive express provision of that kind, the in-
with the national exigencies, and ference is that it has confided to the
necessarily involves in it every branch department, charged with the duty
of the national sovereignty, of which and the power of making treaties, a
the operation may be necessary to give discretion commensurate with all the
effect to negotiations and compacts great interests of the nation." A
with foreign nations. If a nation Course of Lectures on the Constitu-
has conferred on its Executive de- tional Jurisprudence of the United
partment, without reserve, the right States, 2d ed., 228.
of treating and contracting with other ** Mr. Justice Field, in Whitney v.
sovereignties, it is considered as hav- Kobertson, 124 U. S. 190, 8 Sup. Ct.
ing invested it with all the power Rep. 456, 31 L. ed. 386. See, also,
necessary to make a valid contract, Taylor v. Morton, 2 Curt. 454, Fed.
because that department is the organ Cas. No. 13,799.
of the Government for the purpose, ** Case of the Chinese Merchant, 13
and its contracts are made by the Fed. 605, 7 Saw. 546.
deputed will of the nation. The fun- 45 Chew Heong v. United States, 112
damental laws of the State may with- U. S. 536, 5 Sup. Ct. Eep. 255, 28 L.
hold from it the power of alienating ed. 770.
207 REPEAL BY IMPLICATION. [§ 178
the repugnancy between them is irreconcilable, applies when it
is alleged that a treaty and an act of Congress are in conflict.
A later treaty will not be considered as repealing, by implica-
tion, an earlier statute, unless the incompatibility between the
two is so great that the enforcement of the statute will be impos-
sible without antagonizing the treaty.46
The treaty of July 12, 1889, between Great Britain and the
United States, provided in the second article: "A fugitive crim-
inal shall not be surrendered, if the offense in respect of which
his surrender is demanded be one of a political character, or if he
proves that the requisition for his surrender has in fact been
made with a view to try to punish him for an offense of a political
character, No person surrendered by either of the high contract-
ing parties to the other shall be triable or tried, or be punished
for any political crime or offense, or for any act connected there-
with, committed previously to his extradition. If any question
shall arise as to whether a case comes within the provisions of this
article, the decision of the authorities of the government in whose
jurisdiction the fugitive shall be at the time shall be final."
The third article declared that: "No person surrendered by
or to either of the high contracting parties shall be triable or be
tried for any crime or offense, committed prior to his extradition,
other than the offense for which he was surrendered, until he
shall have had an opportunity of returning to the country from
which he was surrendered."
The sixth article provided that: "The extradition of fugitives
under the provisions of this convention and of the said tenth
article shall be carried out in the United States and in Her
Majesty's dominions, respectively, in conformity with the laws
regulating extradition for the time being in force in the sur-
rendering State."
The seventh article stipulated that: "The provisions of the
said tenth article and of this convention shall apply to persons
convicted of crimes therein respectively named and specified,
whose sentence therefor shall not have been executed. In a
case of a fugitive criminal alleged to have been convicted of
the crime for which his surrender is asked, a copy of the rec-
46 Johnson v. Browne, 205 U. S. 185 U. S. 213, 22 Sup. Ct. Eep. 629
309, 27 Sup. Ct. Kep. 539, 51 L. ed. 46 L. ed. 878.
816; United States v. Lee Yen Tai,
§ 179] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 208
ord of the conviction and of the sentence of the court before
which such convention took place, duly authenticated shall be
produced, together with the evidence proving that the prisoner
is the person to whom such sentence refers."
The second article, it will be observed, declares that no person
surrendered shall be triable or tried or be punished for any politi-
cal crime or offense. But in the third article it is provided that
no person surrendered shall be triable or be tried for any offense
committed prior to the extradition, other than the offense for
which he was surrendered, until he shall have had an oppor-
tunity of returning to the country from which he was surren-
dered. It will be noticed that this article uses the words " triable
or tried," and omits the words "or be punished.7' A prisoner
sued out a writ of habeas corpus, and it appeared that two indict-
ments had been found against him, on one of which he was tried
and convicted. He appealed, the conviction was affirmed, and
then he made application for a certiorari to the supreme court of
the United States to review the judgment of conviction, and
pending a review of his case, he having been released on bail,
fled to Canada. Extradition proceedings were instituted to pro-
cure his return upon the judgment of conviction, but it was de-
cided by the British tribunals that the crime set out in the indict-
ment was not provided for by the treaty. His extradition was
then sought upon the second indictment, and granted. He w^as
surrendered to an agent of the United States, and taken to New
York, where he was arrested upon a warrant based upon the
prior indictment and conviction. It was decided that he could
not be punished for an offense other than that for which his
extradition had been demanded, although he had been convicted
and sentenced for such offense prior to his extradition.
§ 179. Fair construction not permitting arrest on prior con-
viction.— The case involved the construction of the treaty, and
it was contended that as the third article did not in so many
words expressly prohibit the punishment for another offense for
which a person had been convicted, a requisition might be ob-
tained for one crime under that article, and when possession oJ
the person is obtained by this means, he might be punished for
another and totally different crime of which he had been con-
victed prior to his extradition.
209 REASONING OF THE COURT. [§ 180
The court said that if the question had arisen under the
former treaty of 1842, known as the Ashburton treaty,47 and the
sections of the Revised Statutes relating to extradition,48 his im-
prisonment would clearly have been illegal. The court observed
that if the words "or be punished" were contained in the third
article, the question would not arise, but that it was satisfied that
the whole treaty, taken in connection with that of 1842, fairly con-
strued, would not permit his imprisonment upon the former
charge.49
§ 180. Reasoning of the court. — The court, in passing upon
the point, said that the mere failure to use the words "or be
punished" in the third article of the treaty did not so far change
and alter "the manifest scope and object" of the two treaties as
to render legal the imprisonment on the former conviction. The
opinion of the court was delivered by Mr. Justice Peckham, who
said: "The general scope of the two treaties makes manifest an
intention to prevent a State from obtaining jurisdiction of ;:an
individual whose extradition is sought on one ground, and for
one express purpose, and then having obtained possession of his
person to use it for another and different purpose. Why, the
words were left out in the third article of the convention of 1889,
when their insertion would have placed the subject entirely at
rest, may perhaps be a matter of some possible surprise, yet their
absence cannot so far alter the otherwise plain meaning of the
two treaties as to give them a totally different construction.
"In addition to the provisions of the treaty of 1889, we find
still in existence the already mentioned sections of the Revised
Statute, which prohibit a person's arrest or trial for any other
offense than that with which he was charged in the extradition pro-
ceedings, until he shall have had a reasonable time to return
unmolested from the country to which he was brought.
"It is argued, however, that the sections in question have
been repealed by implication of the treaty or convention of 1889,
and that the respondent, therefore, cannot obtain any benefit
from them. We see no fair or reasonable ground upon which to
base the claim of repeal. Repeals by implication are never
47 8 Stats, at Large, 572, 576. 49 Johnson v. Browne, 205 TJ. S. 309,
48 Kev. Stats., sees. 5272, 5275. 27 Sup. Ct. Eep. 539, 51 L. ed. 816.
Treaties — 14
§ 181] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 210
favored, and later treaty will not be regarded as repealing an
earlier statute by implication, unless the two are absolutely in-
compatible, and the statute cannot be enforced without antag-
onizing the treaty.50 If both can exist, the repeal by implica-
tion will not be adjudged. These sections are not incompatible
with the treaty or in any way inconsistent therewith. We find
nothing in the treaty which provides that a person shall be
surrendered for one offense, and then that he may be punished
for another, such as is the case here. The most that can be as-
serted is that an inference to that effect perhaps might be drawn
from the absence in article III of positive language preventing
such punishment. But that slight and doubtful inference, resting
on such an insufficient foundation is inadequate to overcome the
positive provisions of the statute and the otherwise general scope
of both treaties, which are inconsistent with the existence of
such right."
§ 181. Extension of treaty by doubtful construction. — The
court declared that it was essential that in the construction of
treaties, the highest good faith should be observed, and that in
case of extradition, its effect should not be extended by doubt-
ful construction. Mr. Justice Peckham, referring to the conten-
tion that the construction contended for was exceedingly tech-
nical, and tended "to the escape of criminals on the fine subtle-
ties of statutory construction, and should not, therefore, be
adopted," observed: "While the escape of criminals, of course,
is to be very greatly deprecated, it is still most important that
a treaty of this nature between sovereignties should be con-
strued in accordance with the highest good faith, and that it
should not be sought by doubtful construction of some of its pro-
visions to obtain the extradition of a person for one offense, and
then punish him for another and different offense. Especially
should this be the case where the government surrendering the
person has refused to make the surrender for the other offense on
the ground that such offense was not one covered by the treaty.
"Our attention has been directed to various other treaties
between this government and other nations, where provision is
60 Citing United States v. Lee Yen Tai, 185 U. S. 213, 22 Sup. Ct. Eep.
629, 46 L. ed. 878.
211 . ABROGATION MUST CLEARLY APPEAR. [§ 182
expressly made in regard to punishment. They frequently pro-
vide that no person shall be triable or tried 'or be punished' for
any other offense than that for which he was delivered up, until
he has had an opportunity of returning to the country from which
he was surrendered. But because in some of the treaties the
words 'or be punished' are contained, we are not required to
hold that in the case before us the absence of those words per-
mits such punishment, when that construction is, as we have said,
contrary to the manifest meaning of the whole treaty, and also
violates the statutes above cited."51
§ 182. Abrogation must clearly appear. — While there can be
no question that a later statute may abrogate a treaty, "never-
theless the purpose by statute to abrogate a treaty or any des-
ignated part of a treaty, or the purpose by treaty to supersede
the whole or a part of an act of Congress, must not be lightly as-
sumed, but must appear clearly and distinctly from the words
used in the statute or in the treaty. ' ' 52 The supreme court of
the United States has decided that a treaty with China and an
act of Congress prescribing the certificate to be produced by a
Chinese laborer as the only evidence permissible to establish his
right of re-entry into the United States could both stand.53 Mr.
Justice Harlan, who delivered the opinion of the court, said:
''Aside from the duty imposed by the Constitution to respect
treaty stipulations when they become the subject of judicial pro-
ceedings, the court cannot be unmindful of the fact that the
honor of the Government and people of the United States is in-
volved in every inquiry whether rights secured by such stipula-
tions shall be recognized and protected. And it would be want-
ing in proper respect for the intelligence and patriotism of a co-
ordinate department of the Government were it to doubt, for a
moment, that these considerations were present in the minds of
its members when the legislation in question was enacted."54
31 Johnson v. Browne, 205 U. S. 53 Chew Heong v. United States,
309, 27 Sup. Ct. Eep. 539, 51 L. eel. 112 U. S. 536, 5 Sup. Ct. Eep. 225,
816. 28 L. ed. 770.
52 United States v. Lee Yen Tai, M Chew Heong v. United States,
185 U. S. 213, 22 Sup. Ct. Eep. 629, 112 U. S. 536, 5 Sup. Ct. Eep. 225,
46 L. ed. 878. 28 L. ed. 770.
§ 183] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 212
The court said that the utmost that could be asserted was that
there appeared to be an apparent conflict between the mere
words of the statute and the treaty, and that by implication the
treaty was in a measure abrogated. But after referring to the
rule that repeals by implication are not favored, and that if by
any reasonable construction the two statutes can stand together,
they must be enforced, the court proceeded to say: "When the
Act of 1882 was passed, Congress was aware of the obligation
this Government had recently assumed, by solemn Treaty, to ac-
cord to a certain class of Chinese laborers the privilege of going
from and coming to this country at their pleasure. Did it in-
tend, within less than a year after the ratification of the Treaty
and without so declaring in unmistakable terms, to withdraw that
privilege by the general words of the 1st and 2nd sections of that
Act? Did it intend to do what would be inconsistent with the
inviolable fidelity with which, according to the established rules
of international law, the stipulations of treaties should be ob-
served? These questions must receive a negative answer. The
presumption must be indulged that the broad language of these
sections was intended to apply to those Chinese laborers whose
coming to this country might, consistent with the Treaty, be rea-
sonably regulated, limited or suspended, and not to those who,
by the express words of the same Treaty, were entitled to go and
come of their own free will, and enjoy such privileges and im-
munities as were accorded to the citizens and subjects of the
most favored Nation. ' ' 55
§ 183. Dissenting views of Justices Field and Bradley. — Mr.
Justice Field dissented from the opinion of the majority of the
court construing the act of Congress, restricting the immigration
of Chinese laborers. He said that the construction adopted by
the majority of the court appeared to be in conflict with the
language of the act, "and to require the elimination of entire
clauses and the interpolation of new ones. It renders nugatory
whole provisions which were inserted with sedulous care. The
change thus produced in the operation of the act is justified on
the theory that to give it any other construction would bring it
in conflict with the treaty; and that we are not at liberty to
55 Chew Heong, 112 U. S. 536, 5 Sup. Ct. Eep. 225, 28 L. ed. 770.
213 DISSENTING VIEWS OF JUSTICES FIELD AND BRADLEY. [§ 183
suppose that Congress intended by its legislation to disregard any
treaty stipulations."
He adverted to the language of the circuit court that the act
of Congress, construed according to the natural meaning of
its terms, violates the treaty and the national faith, and that the
majority of the court adopting a similar construction of the
treaty had narrowed the meaning of the act so as measurably
to frustrate its intended operation, and thus proceeded: "If,
however, the Act of Congress be in conflict with the Treaty
upon the immigration of Chinese laborers, it must control as
being the last expression of the sovereign will of the country.
And while I agree with all that is said in the opinion of the
Court, as to the sanctity of the public faith, I must be permitted
to suggest that, if the legislative department sees fit for any
reason to refuse, upon a subject within its control, compliance
with the stipulations of a Treaty, or to abrogate them entirely,
it is not for this court or any other court to call in question the
validity or wisdom of its action and impute unworthy motives
to it. It should be presumed that good and sufficient reasons con-
trolled and justified its conduct. If the Nation with which the
Treaty is made objects to the legislation, it may complain to the
executive head of our Government and take such measures as it
may deem advisable for its interests. But whether it has just
cause of complaint, or whether, in view of its action, adverse leg-
islation on our part be or be not justified, is not a matter for
judicial cognizance or consideration. A treaty is, in its nature,
a contract between two or more Nations, and is so considered
by writers on public law ; and by the constitution it is placed
on the same footing and made of like obligation as a law of the
United States. Both are declared in that instrument to be the
supreme law of the land, and no paramount authority is given to
either over the other.
' * Some treaties operate in whole or in part by their own force,
and some require legislation to carry their stipulations into effect.
If that legislation imposed duties to be discharged in the future,
it may be repealed or modified at the pleasure of Congress. If
the Treaty relates to a subject within the powers of Congress,
and operates by its own force, it can only be regarded by the
courts as equivalent to a legislative Act. Congress may, as with
an ordinary statute, modify its provisions or supersede them alto-
§ 183] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 214
gether. The immigration of foreigners to this country, and the
conditions upon which they shall be permitted to come or re-
main, are proper subjects both of legislation and of treaty stipu-
lation. The power of Congress, however, over the subject can
neither be taken away nor impaired by any treaty."56
He said that if the construction which he gave worked a hardship
to any persons, it was for Congress, and not for the court, to afford
the remedy. "This court has no dispensing power over the pro-
visions of an act of Congress. It is itself only the servant of the
law; bound to obey it, not to evade or make it."
Mr. Justice Bradley concurred with Mr. Justice Field in dis-
senting from the judgment, and remarked: "It may be that this
view of the law makes it conflict with the treaty , though Justice
Field has shown strong reasons to the contrary, but whether it
does so or not, I think it is the true construction; and the rule
is now settled that Congress may, by law, overrule a treaty
stipulation, although, of course, it should not be done without
strong reasons for it; and an act of Congress should not be con-
strued as having that effect unless such be its plain meaning. ' ' 57
If it is alleged that a conflict exists between a treaty requiring
ratification and a legislative act of amendment, the courts, in
their construction, will endeavor to give effect to both, but if
they cannot be reconciled, will give effect preferably to the
legislative enactment.58
88 Chew Heong v. United States, is investigated with care, and con-
supra, sidered in its full extent. Other
57 Chew Heong v. United States, principles which may serve to illus-
supra. trate it are considered in their rela-
As said by Chief Justice Marshall: tion to the case decided, but their
' l It is a maxim not to be disregarded, possible bearing on all other cases
that general expressions, in every is seldom completely investigated."
opinion, are to be taken in connec- Cohens v. Virginia (1821), 19 U. S.
tion with the case in which those ex- (6 Wheat.) 264, 399, 5 L. ed. 257,
pressions are used. If they go be- 290. The above language was quoted
yond the case, they may be respected, with approval in United States v.
but ought not to control the judg- Wong Kim Ark, 169 U. S. 679, 18
ment in a subsequent suit when the Sup. Ct. Eep. 456, 42 L. ed. 901.
very point is presented for decision. " Wadsworth v. Boysen, 148 Fed.
The reason of this maxim is obvious. 771.
The question actually before the court
215 REPEAL OF STATUTES BY IMPLICATION. [§§ 184, 185
§ 184. Same rule as to repeal of statutes by implication. — As
a treaty and an act of Congress are entitled to equal considera-
tion, and neither is in itself paramount to the other, the rule
for their construction, when in conflict, or for determining
whether one is repealed by the other by implication, is the same
as if the treaty and act of Congress were both statutes. It will
not be necessary to enter into detail as to the rule of construc-
tion recognized when it is claimed that a statute is repealed by
implication, but it will be sufficient to quote Mr. Justice Story,
who, in speaking of a repeal of a statute by implication, in de-
livering the opinion of the court, said: "That it has not been
expressly or by direct terms repealed is admitted; and the
question resolves itself into the narrow inquiry whether it has
been repealed by necessary implication. We say by necessary
implication, for it is not sufficient to establish that subsequent
laws cover some, or even all, of the cases provided for by it, for
they may be merely affirmative or cumulative or auxiliary. But
there must be a positive repugnancy between the provisions of
the new laws and those of the old, and even- then the old law is
repealed by implication only pro tanto, to the extent of the repug-
nancy. ' ' 59
"It must appear that the later provision is certainly and clearly
in hostility to the former. If by any reasonable construction, the
two statutes can stand together, they must so stand. If harmony
is impossible, and only in that event, the former law is repealed
in part, or wholly, as the case may be."60
§ 185. Self-executing treaties.— A treaty which requires no
further legislation to make it effective becomes, after its ratifi-
cation, the law of the land, and will be enforced by the courts as
a law of Congress.61 But where the treaty is not complete in
59 Wood v. United States, 16 Pet. ed. 812; Harford v. United States, 8
362, 10 L. ed. 993. Cranch, 109, 3 L. ed. 504.
60 State v Stoll. 17 Wall. 425, 21 61 United States v. Forty-three Gal-
L. ed. 654. 'See, also, Ex parte Yer- Ions of Whisky, 93 U. S. 188, 23 L.
ger, 8 Wall. 105, 19 L. ed. 339; Ex ed. 846; Chew Heong v. United
par e Crow Dog 109 U. S. 570, 3 States, 112 U. S 536, 5 Sup Ct. Eep
Sup. Ct. Kep. 396, 27 L. ed. 1035; ^ 28 L. ed. 770; In re Meter 17
Afl TT Q 1 A(\ 0/LT Fed" CaS- N0>
Arthur v. Homer, 96 U. S. 140, 24 L. ^ ^ g
§ 186] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 216
itself, but requires further legislation to make it effective, it
cannot, of course, be enforced by the courts until such legislation
is had.62 A familiar instance is where an appropriation of money
is necessary to carry a treaty into effect. Until such appropria-
tion is made, the treaty is not perfect, as under the Constitution
money cannot be appropriated by the treaty-making power.63
Where, by the treaty with Spain, the island of Porto Rico was
ceded to the United States, although it had not been formally em-
braced by Congress within the customs union of the states, it
ceased to remain foreign territory within the meaning of the
tariff act providing for the imposition of duties upon articles im-
ported from foreign countries.64
§ 186. Chinese exclusion cases. — As showing that an act of
Congress in contravention of the terms of a treaty must be
upheld when the language of the act is clear and explicit, refer-
ence may be made to the legislation providing for the exclusion
of Chinese from the United States. It is the inherent and in-
alienable right of every sovereign and independent nation to
exclude or expel aliens or any class of aliens. This right may be
exercised in war or in peace, and either absolutely or upon speci-
fied conditions. This power under the Constitution of the United
States is vested in the political department of the government,
and may be exercised either by a treaty or by an act of Con-
gress, and is to be carried into effect by the executive authority
according to the regulation established, except so far as inter-
vention by the judicial department is authorized by treaty or
by statute, or is required by the Constitution. Congress may ex-
ercise its power to expel or exclude aliens entirely through execu-
tive officers or may call in the assistance of the judiciary to
ascertain any contested facts, on the existence of which the right
of an alien to remain is, by the act of Congress, dependent.65
62 Foster v. Neilson, 2 Pet. 253, 7 1, 21 Sup. Ct. Kep. 743, 45 L. ed.
L. ed. 415; Whitney v. Eobertson, 124 1041.
U. S. 190, 8 Sup. Ct. Eep. 457, 31 » ±'ong Yue Ting v. United States,
L. ed. 387. 149 U. S. 698, 13 Sup. Ct. Rep. 1016,
63 Turner v. American Baptist Mis- 37 L. ed. 905; United States v. Ngum
sionary Union, 5 McLean (U. S.), Lun May, 153 Fed. 209. See as to
347, Fed. Cas. No. 14,251. other cases, Chae Chan Pang v. United
64 De Lima v. Bidwell> 182 U. S. States, 130 U. S. 581, 9 Sup. Ct.
217 CHINESE CHILDREN BORN IN THE UNITED STATES. [§§ 187, 188
§ 187. Chinese children born in the United States. — The acts
excluding Chinese from the United States do not apply to a per-
son born within the United States of Chinese parents, who reside
therein and who are not engaged in any diplomatic or official
capacity under the Emperor of .China. Such a person is a cit-
izen of the United States.66 Under the common law a child born
within the jurisdiction of the United States is born a subject or
citizen thereof, without consideration of the political status of its
parents.67 Except for punishment of crime, no citizen can be
excluded from the United States.68 An act of Congress that
would attempt to inflict on a citizen of the United States the pun-
ishment of banishment or exile, on account of his race or color,
or for any cause, would be a bill of attainder within the pro-
hibition of the federal Constitution, and invalid.69
§ 188. Application of fourteenth amendment. — By the four-
teenth amendment to the Constitution of the United States, the
laws providing for the exclusion of Chinese laborers have no ap-
plication to a person born in the United States and subject to its
jurisdiction, notwithstanding that his parents, who were Chinese,
Eep. 623, 32 L. ed. 1068 ; In re Lau sending out of the country such aliens
Ow Beu, 141 U. S. 583, 12 Sup. Ct. as come here in violation of law, and
Rep. 43, 35 L. ed. 868, 144 U. S. 47, commit the enforcement of such pro-
12 Sup. Ct. Rep. 517, 36 L. ed. 340; visions, conditions and regulations ex-
Chew Heong v. United States, 112 clusively to executive officers, with-
U. S. 536, 5 Sup. Ct. Rep. 255, 28 out judicial intervention, are prin-
L. ed. 770; Lem Moon Sing v. United ciples firmly established by the de-
States, 158 U. S. 538, 15 Sup. Ct. cisions of this court."
Rep. 967, 39 L. ed. 1082 ; Wong Wing €6 In re Yung Sing Hee, 36 Fed.
v. United States, 163 U. S. 228, 16 437, 13 Saw. 482; In re Look Tin
Sup. Ct. Rep. 977, 41 L. ed. 140; Sing, 21 Fed. 905, 10 Saw. 353; In
United States v. Gue Lim, 176 U. re Wy Shing, 36 Fed. 553, 13 Saw.
S. 459, 20 Sup. Ct. Rep. 415, 44 L. ed. 530 ; Ex parte Chin King, 35 Fed.
544. 354, 13 Saw. 333.
It was said in the Japanese immi- CT McKay v. Campbell, 2 Saw. 118,
grant case, Yamataya v. Fisher, 189 Fed. Gas. No. 8840; In re Look Tin
U. S. 86, 23 Sup. Ct. Rep. 611, 47 Sing, 21 Fed. 905, 10 Saw. 353;
L. ed. 721 : " That Congress may ex- Lynch v. Clarke, 1 Sand. Ch. 583.
elude aliens of a particular race from 68 In re Wy Shing, 36 Fed. 553,
the United States, prescribe the terms 13 Saw. 530.
and conditions upon which certain * In re Yung Sing Hee, 36 Fed.
classes of aliens may come to this 437, 13 Saw. 482.
country, establish regulations for
§ 189] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 218
were not permitted by the naturalization laws to become citi-
zens.70 The interpretation of the Constitution of the United
States should be made in the light of the common law, by which
every child born in England of alien parents was a natural-born
subject, unless it was the child of an ambassador or other diplo-
matic agent of a foreign state, or of an alien enemy occupying
in hostility the place of birth of the child. At the time when
the fourteenth amendment to the Constitution was adopted there
did not exist any settled and definite rule of international law
inconsistent with the ancient rule that citizenship arose by birth
within the dominion. This amendment did not impose any new
restrictions upon citizenship, but affirmed existing law, and de-
clared existing rights, so far as citizenship was concerned, and
was intended to allay doubts and to settle controversies which
had arisen. It follows, therefore, that the Chinese exclusion acts
passed after the adoption of this amendment cannot control its
meaning or lessen its effect, but their construction and execution
must be in subordination to its provisions. While Congress has
power to regulate naturalization, the fourteenth amendment con-
fers upon it no power to restrict the effect of birth, which by the
Constitution is declared to be a sufficient right to citizenship.71
§ 189. Right to return. — The act of exclusion, unless required
by its language, will not be given a retrospective operation.72
Hence, Chinese laborers who at the date of the treaty with China
10 Lem Hing Dun v. United States, against a person claiming that he
49 Fed. 148, 1 C. C. A. 210, 7 U. S. was born in San Francisco should
App. 31; Gee Fook Sing v. United not be disturbed on appeal, Gee Fook
States, 49 Fed. 146, 1 C. C. A. 211, Sing v. United States, 49 Fed, 146,
7 U. S. App. 27. 1 C. C. A. 211, 7 U. S. App. 27; Lem
71 United States v. Wong Kim Ark, Hing Dun v. United States, 49 Fed.
169 U. S. 649, 18 Sup. Ct. Eep. 456, 148, 1 C. C. A. 210, 7 U. S. App. 31;
42 L. ed. 891. See, where it was Lee Foo v. United States, Id. For
held that the evidence was not a proceeding for deportation of a
sufficient to establish the citizenship Chinese in which the evidence was
of a Chinese person sixteen years held to be insufficient to show that
of age, who claimed that he was born such person was born in the United
in the United States, and therefore a States, see Ho Ngen Jung v. United
citizen, Quock Ting v. United States, States, 153 Fed. 232.
140 U. S. 417, 11 Sup. Ct. Eep. 733, " Chew Heong v. United States,
35 L. ed. 501. See, also, the case 112 U. S. 536, 5 Sup. Ct. Rep. 255,
where it was held that a finding 28 L. ed. 770.
219 POWER OF STATE TO EXCLUDE. [§ 190
were in the United States, but who departed before the exclusion
act took effect, are entitled to land without producing the certifi-
cate required by the act.73 Chinese subjects, shipping on an
American vessel, at an American port, for a round voyage, and
who do not land at any foreign port, are not considered as de-
parting from the United States.74 A person, by neglecting to ap-
ply for the certificate required by the statute, renounces the right
of return secured to him by the treaty.75
§ 190. Power of state to exclude.— In the exercise of its
police power, a state may exclude foreigners who are dangerous,
such as convicts and lepers, but it cannot discriminate against
the citizens as a class of a country possessing treaty rights.76
The power of exclusion by the state extends to paupers, vaga-
bonds, criminals and sick, diseased, infirm and disabled persons,
who will probably become a public charge. The state has power
to impose such terms on their admission as will prevent the
placing of the burden of their support upon the state. But where
persons are in full possession of their faculties, sound in body,
and are not paupers, vagabonds nor criminals, and in all respects
are competent to earn a livelihood, they cannot be excluded by
73 In re Tung Yeong, 19 Fed. 184, intention of returning, Lau Ow Bew
9 Saw, 620. A laborer who leaves v. United States, 144 U. S. 47, 12
the United States temporarily may, Sup. Ct. Kep. 517, 36 L. ed. 340;
under the exclusion act, return on United States v. Chin Quong Look,
obtaining a certificate of identifica- 52 Fed. 203; United States v. Gee
tion. Case of the Chinese Waiter, Lee, 50 Fed. 271, 1 C. C. A. 516, 7 U.
13 Fed. 286, 7 Saw. 536. S. App. 183; In re Ah Ping, 23 Fed.
74 In re Jack Sen, 36 Fed. 441, 13 329. For other cases involving right
Saw. 510; In re Tong Wah Sick, 36 to return, see In re Chae Chan Ping,
Fed. 440, 13 Saw. 497. See, also, 36 Fed. 431, 13 Saw. 486; United
United States v. Lee Yung, 63 Fed. States v. Jung Ah Lung, 124 U. S.
520. 621, 8 Sup. Ct. Eep. 663, 31 L. ed.
75 In re Pong Ah Chee, 18 Fed. 591; Lew Jim v. United States, 66
527; In re Tong Ah Chee, 23 Fed. Fed. 953, 14 C. C. A. 281, 29 U.
441. The prescribed certificate is S. App. 513; Lai Moy v. United
necessary. Wan Shing v. United States, 66 Fed. 955, 14 C. C. A. 283,
States, 140 U. S. 424, 11 Sup. Ct. 29 U. S. App. 517.
Rep. 729, 35 L. ed. 503. But see 76 In re Ah Fong, 3 Saw. 144, Fed.
as to Chinese merchant leaving the Cas. No. 102.
country for temporary purposes with
§ 191] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 220
the state, even in the absence of legislation of Congress on the
subject.77
§ 191. Construction of exclusion laws. — It is not our purpose
to consider at any length the force and effect of the various ex-
clusion acts, as our purpose is only to show that their validity
is not affected by the fact that they are in conflict with prior
treaties, but it may be observed that the proceedings provided
by these laws are in no sense a trial or sentence for crime, and,
hence, the constitutional provisions requiring due process of law
and trial by jury, and prohibiting unreasonable searches and
seizures, do not apply.78 The provision that a Chinese person ad-
judged to be not lawfully entitled to remain in the United States
shall be imprisoned at hard labor is unconstitutional.79 Placing
the burden of proof upon the Chinese person accused of unlaw-
ful residence does not conflict with the Constitution.80 He
may be removed by summary proceedings instead of indictment.81
The prevention of the further immigration of Chinese laborers,
and not the expulsion of those in the United States, was the
object of the Chinese exclusion act.82 The term " laborer" is
used in its popular sense.83 A certificate from the Chinese gov-
" State v. The Constitution, 42 29 U. S. App. 513; In re Ah Yow,
Cal. 578, 10 Am. Eep. 303. 59 Fed. 561; United States v. Doug-
78 Fong Yue Ting v. United States, las, 17 Fed. 634; United States v.
149 U. S. 698, 13 Sup. Ct. Kep. 1016, Sing Lee, 71 Fed. 680; In re Ah
37 L. ed. 905; United States v. Wong Kee, 22 Fed. 519, 22 Blatchf. 520;
Dep Ken, 57 Fed. 206. In re Shong Toon, 21 Fed. 386;
79 Wong Wing v. United States, 163 United States v. Ah Fawn, 57 Fed.
U. S. 228, 16 Sup. Ct. Eep. 977, 41 591 ; United States v. Wong Ah Hung,
L. ed. 40; United States v. Wong 62 Fed. 1005; In re Moncan, 14 Fed.
Dep Ken, 57 Fed. 206. 44, 8 Saw. 350; In re Ah Lung, 9
80 United States v. Wong Dep Ken, Saw. 306, 18 Fed. 28. As to mer-
57 Fed. 206; In re Sing Lee, 54 chants, see Lee Kan v. United States,
Fed. 334. 62 Fed. 914, 10 C. C. A. 669, 15 U.
81 United States v. Wong Sing, 51 S. App. 516; United States v. Loo
Fed. 79. Way, 68 Fed. 475 ; Lai Moy v. United
82 Case of the Chinese Cabin Waiter, States, 66 Fed. 955, 14 C. C. A. 283,
13 Fed. 286, 7 Saw. 536. 29 U. S. App. 517 ; In re Tung Yeong,
83 In re Ho King, 14 Fed. 724, 8 19 Fed. 184, 9 Saw. 620; In re Quan
Saw. 438. For other decisions as to Gin, 61 Fed. 395. See, also, Case
who are laborers, see In re Fook, 65 of the Chinese Wife, 21 Fed. 785 j
How. Pr. 404; Lew Jim v. United In re Lum Lin Ying, 59 Fed. 682.
States, 66 Fed. 953, 14 C. C. A. 281,
221 CONCLUSIVENESS OF DECISION OF DEPARTMENT. [§ 192
ernment is prima facie evidence of the mercantile character of
the holder.84 The certificates of identity are merely licenses.85
A Chinaman who has lost his certificate by theft may prove his
identity.86 That a merchant is such may be established by parol
evidence.87 Any pertinent and convincing testimony may be re-
ceived.88 But the only evidence of the right of a Chinese laborer
who departed from the United States after the act of 1882 is the
certificate.89
§ 192. Conclusiveness of decision of Department. — Many of
the questions that arose and would arise under the exclusion acts
will not, in the future, come before the courts, for the reason that
the supreme court of the United States has determined that the
decision of the Secretary of Commerce and Labor, affirming the
denial of the immigration officers, after examination of the right
of a person of Chinese descent to enter the United States, is
conclusive on the courts. In habeas corpus proceedings, the de-
cision of the secretary is just .as conclusive when the ground on
which the right of entry is claimed is citizenship as when the
ground is any one of those excepted from the exclusion acts. The
provision of the statute declaring that the decision of the appro-
priate department on the right of a person of Chinese descent
84 In re Tung Yeong, 19 Fed. 184, victed of felony is not entitled to reg-
9 Saw. 620. ister. United States v. Chew Cheong,
85 Chae Chan Ping v. United States, 61 Fed. 200. A Chinaman who came
130 U. S. 581, 9 Sup. Ct. Eep. 623, from Canada may be returned to that
32 L. ed. 1068. country. In re Mah Wong Gee, 47
86 United States v. Jung Ah Lung, Fed. 433; United States v. Chong Sam,
124 U. S. 621, 8 Sup. Ct. Eep. 663, 47 Fed. 478; United States v. Don On,
31 L. ed. 591. 49 Fed. 569. For various cases re-
81 Case of the Chinese Merchant, lating to Chinese exclusion acts, see
13 Fed. 605. United States v. Trumbull, 46 Fed.
88 In re Ho King, 14 Fed. 724, 8 755; In re Mah Wong Gee, 47 Fed.
Saw. 438; In re Leong Yick Dew, 433; United States v. The Geo. E. Wil-
19 Fed. 490; In re Ah Quan, 21 Fed. ton, 43 Fed. 606; In re Leo Hew Bow,
182. 47 Fed. 302; United States v. Chung
89 Case of the Limited Tag, 21 Fung Sun, 63 Fed. 261 ; United States
Fed. 789. See, also, In re Tom Mun, v. Lee Hoy, 48 Fed. 825; In re Chow
47 Fed. 722; In re Wo Tai Li, 48 Goo Pooi, 25 Fed. 77; In re Ah Yuk,
Fed. 668. But see as to a merchant, 53 Fed. 781; United States v. Hing
Lau Ow Bew v. United States, 144 Quong Chow, 53 Fed. 233 ; United
U. S. 47, 12 Sup. Ct. Kep. 517, 36 States v. Chong Sam, 47 Fed. 878.
L. ed. 340. A Chinese laborer con-
§ 193] CONFLICT BETWEEN TREATIES AND ACTS OF CONGRESS. 222
who seeks entry into the United States shall be conclusive on the
courts in habeas corpus proceedings does not infringe the con-
stitutional guaranty of due process of law, where there is no
abuse of authority, notwithstanding that the ground on which
the right of entry is based is citizenship of the United States.90
§ 193. Hearing arbitrarily denied. — Recently the supreme
court of the United States declared that the decision of the
Department of Commerce and Labor, in refusing to allow a
Chinaman to enter, was final and conclusive, but that this prin-
ciple was based on the supposition that the decision was reached
after a hearing had in good faith, although it might be summary
in character. In the petition for a writ of habeas corpus, it was
alleged that the petitioner was born in the United States of
parents domiciled there; that he was denied the right to land;
that he was prevented by the officials from obtaining testimony,
including that of witnesses named by him, and that if he had
been given a proper opportunity, he could have produced over-
whelming evidence that he was born in the United States. The
allegations substantially were to the effect that he was arbi-
trarily denied such a hearing and such an opportunity to prove
his right of entrance as it was intended by the statute that he
should have. The court said that the case could proceed no
further, if the petitioner was not denied a fair opportunity to pro-
duce the evidence in his behalf that he desired, or if he had a fair
though summary hearing. The court held that these facts are
the foundation for the jurisdiction of the court, but that such
jurisdiction would not be established simply by proving that
the officials did not accept the truth of sworn statements, even
if no contradicting or impeaching testimony was produced.
"The statutes," said Mr. Justice Holmes, delivering the opinion
of the court, "purport to exclude aliens only. They create or
recognize, for present purposes, it does not matter which, the
right of citizens outside the jurisdiction to return to the United
States. If one alleging himself to be a citizen is not allowed a
chance to establish his right in the mode provided by those
statutes, although that mode is intended to be exclusive, the stat-
90 United States v. Ju Toy, 198 U. Brewer filed a dissenting opinion, in
S. 253, 25 Sup. Ct. Rep. 644, 49 L. which Mr. Justice Peckham concurred,
ed. 1040. In this case Mr. Justice Mr. Justice Day also dissented.
223 HEARING ARBITRARILY DENIED. [§ 193
utes cannot be taken to require him to be turned back without
more. The decision of the Department is final, but that is on the
presupposition that the decision was after a hearing in good faith,
however summary in form. As between the substantive right of
citizens to enter, and of persons alleging themselves to be citi-
zens to have a chance to prove their allegation on the one side
and the conclusiveness of the commissioner's fiat on the other,
when one or the other must give way, the latter must yield. In
such a case something must be done, and it naturally falls to
the courts." He closed by saying: "But unless and until it is
proved to the satisfaction of the judge that a hearing properly
so-called was denied, the merits of the case are not open, and we
may add, the denial of a hearing cannot be established that the
hearing was wrong." 91 It is to be observed that in the case just
cited the decision was based upon the allegations contained in the
petition, which, if true, showed that a hearing was arbitrarily
denied, but the decision in no manner alters the rule that the de-
cision is conclusive when a hearing of some kind in good faith in
reality has taken place.
81 Chin Yow v. United States (decided January 6, 1908), 28 Sup. Ct. Eep.
201.
TREATIES, STATE CONSTITUTIONS AND STATUTES. 224
CHAPTER IX.
STATE CONSTITUTIONS AND STATUTES IN CONFLICT WITH
TEEATIES.
§ 194. Comments.
§ 195. Fourteenth amendment applies to aliens.
§ 196. Procedure in criminal cases.
§ 197. Judicial trial necessary.
§ 198. Employment of Chinese by corporation.
§ 199. Cpmments.
§ 200. Property includes right to labor.
§ 201. Employment of aliens on public works.
§ 202. Eight to administration.
§ 203. Power of court to appoint attorney for absent heirs displaced by treaty.
§ 204. State pilotage laws.
§ 205. Trademarks protected by treaty.
§ 206. Persons adding to the prevalence of disease.
§ 207. Views of majority of court.
§ 208. Dissenting views.
§ 209. South Carolina dispensary act.
§ 210. Treaty devesting state of right to tax.
§ 211. Criminal procedure.
§ 212. Consuls acting as judges.
§ 213. Municipal ordinances.
§ 214. Special rights to American citizens.
§ 215. Eight of nonresident aliens to damages for death of relative.
§ 216. Prevention of intrusion on Indian lands a police regulation.
§ 217. Covenant not to rent property to a Chinaman.
§ 218. Aliens suing in courts.
§ 219. Transitory actions.
§ 220. Eights of aliens to inherit affected by treaty — Comments.
§ 221. Disability of aliens.
§ 222. Title in aliens when treaty made.
§ 223. Taking by devise.
§ 224. Foreign corporation purchasing stock of local corporation.
§ 225. Constitutional legislation.
§ 226. Alien acquiring title by descent.
§ 227. Taking by dower or curtesy.
§ 228. Alien has no inheritable blood.
§ 229. Eight of alien to take personal property.
§ 230. Treaties removing disability of aliens to inherit.
§ 231. Treaty admitting of two constructions.
§ 232. Contention of state.
§ 233. Euling of court.
§ 234. Other decisions of supreme court of United States.
225 COMMENTS. [§ 194
§ 235. Same subject.
§ 236. Same subject — Treaties of 1783 and 1794.
§ 237. Expression of executive department of government.
§ 238. Dissent from these views.
§ 239. In California.
§ 240. Constitutionality of statutes.
§ 241. Eule recognized that treaty may regulate rights,
§ 242. In Delaware.
§ 243. In Illinois.
§ 244. Existence of treaty.
§ 245. Statute not unconstitutional as special law.
§ 246. Construction of words.
§ 247. Allowance of time to sell.
§ 248. In Iowa.
§ 249. Goods not including lands.
§ 250. Treaty contemplating one step of transmission.
§ 251. In Kentucky.
§ 252. Lapse of time precluding claim.
§ 253. In Maryland.
§ 254. In Massachusetts.
§ 255. In Michigan.
§ 256. In New York.
§ 257. Limitation on time to sell.
§ 258. Existence of title at time of treaty.
§ 259. Same rights as resident heir.
§ 260. In North Carolina.
§ 261. Confiscation acts annulled.
§ 262. In Pennsylvania.
§ 263. In South Carolina.
§ 264. In Tennessee.
§ 265. In Texas.
§ 266. In Virginia.
§ 194. Comments. — The Constitution places treaties and acts
of Congress on the same plane. Both are the supreme law of the
land, and one may abrogate or modify the other. The most
solemn treaty may be violated by an act of Congress, and al-
though it may be freely conceded that the national faith has been
broken, this question is one that concerns the political depart-
ment of the government, and not the judicial. It is the duty of
the courts to declare and enforce the law, and they must enforce
acts of Congress even if they conflict with treaties. But in the
case of constitutions and statutes of states, no such questions
arise. The treaty, whenever it conflicts with a provision of the
Constitution or statute of a state or of its common law, will
Treaties — 15
§ 195] TREATIES, STATE CONSTITUTIONS AND STATUTES. 226
supersede it. Both cannot stand when in conflict, and the treaty
must be held to be the supreme law. We shall now consider
some of the cases in which this conflict has arisen.
§ 195. Fourteenth amendment applies to aliens. — The four-
teenth amendment to the Constitution of the United States is not
confined to the protection of citizens. The language used in the
amendment is comprehensive and universal in its application to
all persons within the territorial jurisdiction of the United States,
irrespective of any differences that may exist with respect to
race, color, or nationality.1 By the third article of the treaty
between the United States and China, it was provided that "if
Chinese laborers or Chinese of any other class, now either per-
manently or temporarily residing in the territory of the United
States, meet with ill-treatment at the hands of any other persons,
the government of the United States will exert all its powers
to devise measures for their protection, and to secure to them the
same rights, privileges, immunities and exemptions as may be
enjoyed by the citizens or subjects of the most favored nation,
and to which they are entitled by treaty. ' ' 2
Referring to this provision, and speaking of an ordinance mak-
ing arbitrary and unjust discriminations founded on race between
persons otherwise in similar circumstances, Mr. Justice Matthews,
in delivering the opinion of the court, said: "When we consider
the nature and the theory of our institutions of government, the
principles upon which they are supposed to rest, and review the
history of their development, we are constrained to conclude that
they do not mean to leave room for the play and action of purely
personal and arbitrary power. Sovereignty itself is, of course,
not subject to law, for it is the author and source of law; but in
our system, while sovereign powers are delegated to the agencies
of government, sovereignty itself remains with the people, by
whom and for whom all government exists and acts. And the
law is the definition and limitation of power. It is, indeed, quite
true that there must always be lodged somewhere, and in some
person or body, the authority of final decision; and in many
cases of mere administration the responsibility is purely political,
1 Yick Wo v. Hopkins, 118 U. S. 2 22 Stats, at Large, 827.
.ft56, 6 Sup. Ct. Eep. 1064, 30 L. ed.
227 PROCEDURE IN CRIMINAL CASES. [§ 196
no appeal lying except to the ultimate tribunal of the public
judgment, exercised either in the pressure of opinion or by means
of the suffrage. But the fundamental rights to life, liberty, and
the pursuit of happiness, considered as individual possessions,
are secured by those maxims of constitutional law which are
the monuments showing the victorious progress of the race in
securing to men the blessings of civilization under the reign of
just and equal laws, so that, in the famous language of the
Massachusetts Bill of Rights, the government of the common-
wealth 'may be a government of laws and not of men.' For
the very idea that one man may be compelled to hold his life, or
the means of living, or any material right essential to the enjoy-
ment of life, at the mere will of another, seems to be intolerable
in any country where freedom prevails, as being the essence of
slavery itself. ' ' 3
§ 196. Procedure in criminal cases. — Aliens who are within
the territory of the United States are entitled to the full protec-
tion guaranteed by the fifth and sixth amendments relative to
procedure in criminal cases. This proposition was very fully
discussed in the cases in which the laws providing for the ex-
clusion of Chinese came before the courts. The acts of Con-
gress providing for the exclusion of Chinese laborers from the
United States were held to be a constitutional exercise of legis-
lative power, and that so far as they were in conflict with treaties
with China, they operated to that extent as an abrogation of the
municipal law of the United States.4 So it was held that the
3 Yick Wo v. Hopkins, 118 U. S. to hinder the employment of foreign-
356, 6 Sup. Ct. Eep. 1064, 30 L. ed. born unnaturalized male persons over
220. A statute was passed in Penn- 21 years of age. The act is hostile to
sylvania which imposed a tax on em- and discriminates against such per-
ployers of foreign-born unnaturalized sons. It interposes to the pursuit by
male persons of a tax of three cents them of their lawful avocations ob-
a day for each day that such persons stacles to which others, under like
might be employed, and authorized the circumstances, are not subjected."
deduction of that sum from the wages An unequal tax upon laundries not
of such persons. This statute was run by steam cannot be upheld. In
held to be in violation of the four- re Yot Sang, 75 Fed. 984.
teenth amendment, in that it deprived * Chae Chan Ping v. United States
such employees of the equal protection (Chinese Exclusion Case), 130 U. S.
of the laws. Fraser v. McConway & 581, 9 Sup. Ct. Eep. 623, 32 L. ed.
Forley Co., 82 Fed. 257. Said the 1069.
court: "Evidently the act is intended
§ 196] TREATIES, STATE CONSTITUTIONS AND STATUTES. 228
right to exclude aliens, either absolutely or upon conditions, in
war or in peace, was an inherent right of every sovereign nation.5
Admitting that it was competent for Congress to prevent aliens
from coming to the United States and to provide for the deporta-
tion of those who were unlawfully within its territory, and to
submit the enforcement of the laws enacted for that purpose to
executive officers, a question arose as to the constitutionality of
a section of a subsequent act declaring that "any such Chinese
person or person of Chinese descent convicted and adjudged to
be not lawfully entitled to be or remain in the United States
shall be imprisoned at hard labor for a period not exceeding one
year, and thereafter removed from the United States. ' ' The con-
tention was made that this section authorized the infliction of an
infamous punishment, and, therefore, was in conflict with the
fifth and sixth amendments to the Constitution declaring that no
person shall be held to answer for a capital or otherwise infamous
crime, unless on a presentment or indictment of a grand jury,
and that in all criminal prosecutions the accused shall have the
right to a speedy and public trial, by an impartial jury of the
state and district in which the crime shall have been committed.
The court said that it thought it clear "that detention or tem-
porary confinement as part of the means necessary to give effect
to the provisions for the exclusion or expulsion of aliens would
be valid. Proceedings to exclude or expel would be vain if
those accused could not be held in custody pending the inquiry
into their true character and while arrangements were being
made for their deportation. Detention is a usual feature
of every case of arrest in a criminal charge, even when an in-
nocent person is wrongfully accused; but it is not imprisonment
in a legal sense. So, too, we think it would be plainly compe-
tent for Congress to declare the act of an alien in remaining un-
lawfully within the United States to be an offense punishable by
fine or imprisonment, if such offense were to be established by a
judicial trial." The court said, however, that the evident inten-
tion of the section was that the detention provided for was im-
prisonment at hard labor to be suffered before the sentence of
deportation should be effectuated, and that such imprisonment
was to be adjudged upon a summary hearing.6
5 Fong Yue Ting v. United States, 6 Wong Wing v. United States, 163
149 U. S. 698, 13 Sup. Ct. Kep. 1016, U. S. 228, 16 Sup. Ct. Rep. 977, 41
37 L. ed. 905. L. ed. 140.
229 JUDICIAL TRIAL NECESSARY. [§§ 197, 198
§ 197. Judicial trial necessary. — The court adverted to its
previous decisions to the effect that the United States, as a mat-
ter of public policy, might forbid the coming of aliens or expel
those within its territory, and might devolve the power and duty
of identifying and arresting such persons and procuring their
deportation upon subordinate officials. "But," said Mr. Justice
Shiras, delivering the opinion of the court, "when Congress
sees fit to further promote such a policy by subjecting the per-
sons of such aliens to infamous punishment at hard labor, or by
confiscating their property, we think such legislation, to be valid,
must provide for a judicial trial to establish the guilt of the ac-
cused. No limits can be put by the courts upon the power of
Congress to protect, by summary methods, the country from the
advent of aliens whose race or habits render them undesirable
as citizens, or to expel such if they have already found their way
into our land and unlawfully remain therein. But to declare un-
lawful residence within the country to be an infamous crime,
punishable by deprivation of liberty and property, would be to
pass out of the sphere of constitutional legislation, unless provi-
sion were made that the fact of guilt should first be established
by a judicial trial. It is not consistent with the theory of our
government that the legislature should, after having defined an
offense as an infamous crime, find the fact of guilt and adjudge
the punishment by one of its own agents. ' ' 7
§ 198. Employment of Chinese by corporation. — The Con-
stitution of California adopted in 1879 contains the following
clause: "No corporation now existing, or hereafter formed un-
der the laws of this State, shall, after the adoption of this Con-
stitution, employ, directly or indirectly, in any capacity, any
Chinese or Mongolian. The legislature shall pass such laws as
may be necessary to enforce this provision."8 In pursuance of
this constitutional provision an act was passed by the legislature
of California declaring that any officer of a corporation who
should employ "in any manner, or capacity, upon any work or
business of such corporation, any Chinese or Mongolian is guilty
7 Wong Wo v. United States, 163 trial, see In re Tsu Tse Mee, 81 Fed.
U. S. 228, 16 Sup. Ct. Rep. 977, 41 565.
L. ed. 140. That an order of deporta- 8 Cal. Const. 1879, art. XIX, sec. 2.
tion may be made without a jury
§ 198] TREATIES, STATE CONSTITUTIONS AND STATUTES. 230
of a misdemeanor," punishable by fine or imprisonment, or
both.9 An officer of a corporation convicted and imprisoned for
a violation of this act obtained a writ of habeas corpus from the
United States circuit court, alleging that this provision of the
Constitution and law passed in pursuance of it were void, because
they were in violation of the fourteenth amendment to the
Constitution of the United States, and the civil rights law, and
also of the treaty between the United States and China. Upon
the latter point the court held that the treaty-making power had
been surrendered by the states to the national government, and
that the provisions of the treaty made with China in 1868, recog-
nizing the right of the citizens of China to emigrate to the United
States for purposes of curiosity, trade and permanent residence,
and providing that Chinese subjects residing in the United States
shall enjoy the same privileges, immunities and exemptions in
respect to residence and travel as may be enjoyed by the citi-
zens or subjects of the most favored nations, were within the
treaty-making power. It was contended that even if the treaty
in terms should apply, the provision was not within the treaty-
making power, but Judge Sawyer said that he had no doubt
that the provision was within this power, and continued : "As to
the point whether the provision in question is within the treaty-
making powers, I have as little doubt as upon the point already
discussed.10 Among all civilized nations, in modern times at
least, the treaty-making power has been accustomed to determine
the terms and conditions upon which the subjects of the parties to
the treaty shall reside in the respective countries, and the treaty-
making power is conferred by the Constitution in unlimited
9 Cal. Pen. Code, sees. 178, 179. which is open, without limit, let or
10 In re Tiburcio Parrott, 6 Saw. hindrance, to all citizens, and all other
349, 1 Fed. 481. Speaking of the foreigners, without regard to nation,
right of the Chinese to the equal pro- race or color. Yet in the face of
tection of the laws, Judge Sawyer these plain provisions of the national
said : "It would seem that no argu- constitution and statutes, we find,
ment should be required to show that both in the constitution and laws of
the Chinese do not enjoy the equal a great state and member of this
benefit of the laws with citizens, or Union, just such prohibitory provi-
'the equal protection of the laws,' sions and enactments discriminating
where the law forbids their laboring, against the Chinese. Argument and
or making and enforcing contracts to authority, therefore, seem still to be
labor, in a very large field of labor necessary, and fortunately we are
231
EMPLOYMENT OF CHINESE BY CORPORATION. [§ 198
terms. Besides, the authorities cited on the first point fully cover
and determine this question. If the treaty-making power is au-
thorized to determine what foreigners shall be permitted to come
into and reside within the country, and who shall be excluded, it
must have the power generally to determine and prescribe upon
what terms and conditions such as are admitted shall be per-
mitted to remain. If it has authority to stipulate that aliens re-
siding in a state may acquire and hold property, and on their
death transmit it to alien heirs who do not reside in the state,
against the provisions of the laws of the state, otherwise valid —
and so the authorities already cited hold — then it certainly must
be competent for the treaty-making power to stipulate that aliens
residing in a state in pursuance of the treaty may labor in or-
der that they may live and acquire property that may be so held,
enjoyed, and thus transmitted to alien heirs. The former must
include the latter — the principal, the incidental power."
It was accordingly held that these provisions of the Constitu-
tion of California and the statute providing a penalty for their
violation were void, because they were in conflict with the treaty.11
not without either. From the cita-
tions already made, and from many
more that might be made from Jus-
tices Field, Bradley, Swayne and
other judges, it appears that to de-
prive a man of the right to select
and follow any lawful occupation —
that is, to labor or contract to labor,
if he so desires and can find employ-
ment— is to deprive him of both lib-
erty and property, within the mean-
ing of the fourteenth amendment and
the act of Congress." In re Tibur-
cio Parrott, 1 Fed. 481, 6 Saw. 349.
11 In re Tiburcio Parrott, 6 Saw.
349, 1 Fed. 48. In that case Judge
Hoffman, United States District
Judge, said: "The end proposed to
be attained by this extraordinary
article is clearly and even ostenta-
tiously avowed. Its title proclaims
that it is directed against the Chinese.
It forbids their employment by any
but private individuals, and when
through the operation of the laws
they shall have become, or be liable
to become, vagrants, paupers, mendi-
cants, or criminals, the legislature is
directed to provide for their removal
from the state if they fail to com-
ply with such conditions as it may
prescribe for their continued resi-
dence.
' ' The f ramers of the article do not
seem to have relied upon the effi-
cacy of the provisions imposing such
extensive restrictions upon the rights
of the prescribed race to labor for
their living, to reduce them to the
condition of vagrants, paupers, men-
dicants, or criminals, or persons who
'may become' such. The legislature
is directed to impose conditions of
residence, and provide for the re-
moval of 'aliens otherwise dangerous
or detrimental to the well-being or
peace of the State,' and lest any
doubt or hesitation should be felt as
§ 199] TREATIES, STATE CONSTITUTIONS AND STATUTES.
232
§ 199. Comments. — While, confessedly, the police power of
a state is very broad, and it is impossible to define it, so as to
describe and fix its exact limits, yet it is beyond all doubt that
an unconstitutional object cannot be accomplished because it is
pretended that the statute, seeking to secure this end, was passed
in the legitimate exercise of the police power. It is always corn-
to the propriety of including wealthy
and respectable Chinese in this class,
the fourth section declares 'the pres-
ence of foreigners ineligible to be-
come citizens of the United States'
(i. e., the Chinese) to be 'dangerous
to the well-being of the state.' And
the legislature is directed to 'dis-
courage their immigration by all the
means within its power.'
"Would it be believed possible, if
the fact did not sternly confront us,
that such legislation as this could be
directed against a race whose right
freely to emigrate to this country,
and reside here with all 'the privi-
leges, immunities, and exemptions of
the most favored nation,' has been
recognized and guaranteed by a
solemn treaty of the United States,
which not only engages the honor of
the national government, but is by
the very terms of the constitution
the supreme law of the land?
"Ther legislature has not yet at-
tempted to carry into effect the man-
date of the first section by imposing
conditions upon which aliens who are
or may become vagrants, paupers,
mendicants, or criminals, may reside
in the state, or by providing for
their removal. Its action thus far
had been limited to forbidding the
employment of Chinese, directly or
indirectly, by any corporation formed
under the laws of this state. The
validity of this law is the only ques-
tion presented for determination in
the present case. In considering this
question we are at liberty to look
not merely to the language of the law,
but to its effect and purpose.
" ' In whatever language a statute
may be framed, its purpose may be
determined by its natural and rea-
sonable effect; and if it is apparent
that the object of this statute, as
judged by that criterion, is to com-
pel the owners of vessels to pay a
sum of money for every passenger
brought by them from a foreign shore
and landed at the port of New York,
it is as much a tax on passengers if
collected from them, or a tax on the
vessel or owners for the exercise of
the right of landing their passen-
gers in that city, as was the stat-
ute held void in the passenger cases. '
Henderson v. Mayor etc., 92 U. S.
268, 23 L. ed. 543.
" 'If, as we have endeavored to
show, in the opinion in the preced-
ing cases, we are at liberty to look
to the effect of a statute for the
test of its constitutionality, the ar-
gument need go no further. ' Chy
Lung v. Freeman, 92 U. S. 279, 23
L. ed. 550.
"If the effect and purpose of the
law be to accomplish an unconstitu-
tional object, the fact that it is
passed in the pretended exercise of
the police power, or a power to regu-
late corporations, will not save it.
If a law of the state forbidding the
Chinese to labor for a living, or re-
quiring them to obtain a license for
doing so, would have been plainly
in violation of the constitution and
treaty, the state cannot attain the
233
COMMENTS.
§ 199
petent for the courts to decide what its purpose is, by consider-
ing its natural and reasonable effect, no matter in what language
the statute may be phrased. It is not possible, by any form in
which it may be attempted, to nullify those provisions of the
federal Constitution, the object of which is to secure and pre-
serve the liberty of the citizen. If it would be a violation of
same end by addressing its prohibi-
tion to corporations.
"In Cummings v. State of Mis-
souri, Mr. Justice Field, speaking
for the court, observes: 'Now, as the
state, had she attempted the course
supposed, would have failed, it must
follow that any other mode of procur-
ing the same result must equally fail.
The provisions of the federal consti-
tution intended to secure the liberty
of the citizen cannot be evaded by
the form in which the power of the
state is exerted. If this were not so,
if that which cannot be accomplished
by means looking directly to the end
can be accomplished by indirect
means — the inhibition may be evaded
at pleasure. No kind of oppression
can be named, against which the
framers of the constitution intended
to guard, which may not be effected.'
4 Wall. 320, 18 L. ed. 356.
' ' The application of these preg-
nant words to the case at bar is ob-
vious. Few will have the hardihood
to deny the purpose and effect of the
article of the constitution which has
been cited. It is in open and seem-
ingly contemptuous violation of the
provisions of the treaty which give
to the Chinese the right to reside here
with all the privileges, immunities
and exemptions of the most favored
nation. It is in fact but one, and
the latest, of a series of enactments
designed to accomplish the same end.
The attempt to impose a special li-
cense tax upon Chinese for the privi-
lege of mining, the attempt to sub-
ject them to peculiar and exceptional
punishments commonly known as the
Queue Ordinance, have been frus-
trated by the judgments of this court.
The attempt to extort a bond from
ship-owners, as a condition of being
permitted to land those whom a com-
missioner of immigration might choose
to consider as coming within certain
enumerated classes, has received the
emphatic and indignant condemna-
tion of the supreme court. Chy Lung
v. Freeman, 92 U. S. 275, 23 L. ed.
550. But the question which now
concerns us is: Does the law under
consideration impair or destroy the
treaty rights of Chinese residents?
For it may be a part of a system ob-
viously designed to effect that pur-
pose, and yet not of itself be produc-
tive of that result. Its practical
operation and effect must, therefore,
be adverted to.
' ' The advantages of combining
capital, and restricting individual lia-
bility, by the formation of corpora-
tions, have, from the organization of
this state, been recognized by its laws.
That method, now universal through-
out the civilized world, in the prosecu-
tion of great enterprises, has in this
state received an unprecedented de-
velopment. Its laws permit the form-
ation of corporations for any pur-
pose for which individuals may law-
fully associate, and the corporations
already formed cover almost every
field of human activity. The num-
ber of certificates on file in the clerk 's
office of this county alone was stated
§ 200] TREATIES, STATE CONSTITUTIONS AND STATUTES.
234
the federal Constitution absolutely to forbid Chinese to labor
to obtain a living, the state cannot procure the same result by
prohibiting corporations from employing them, as that would
be to accomplish indirectly what it cannot do directly.
§ 200. Property includes right to labor. — Property includes
everything which has an exchangeable value, and consequently,
in a legal sense, labor is property. Next in importance to the
at the hearing to be 8,397. The num-
ber in the entire state is of course
far greater. They represent a very
large proportion of the capital and
industry of the state. The employ-
ment of Chinese, directly or indi-
rectly, in any capacity by any of
these corporations is prohibited by
the law. No enumeration would, I
think, be attempted of the privileges,
immunities, and exemptions of the
most favored nation, or even of man
in civilized society, which would ex-
clude the right to labor for a living.
It is as inviolable as the right of
property, for property is the offspring
of labor. It is as sacred as the right
to life, for life is taken if the means
whereby we live be taken. Had the
labor of the Irish or Germans been
similarly prescribed, the legislation
would have encountered a storm of
just indignation. The right of per-
sons of those or other nationalities
to support themselves by their labor
stands on no other or higher ground
than that of the Chinese. The lat-
ter have even the additional advan-
tage afforded by the express and
solemn pledge of the nation.
' ' That the unrestricted immigration
of the Chinese to this country is a
great and growing evil, that it presses
with much severity on the laboring
classes, and that, if allowed to con-
tinue in numbers bearing any con-
siderable proportion to that of the
teeming population of the Chinese
Empire, it will be a menace to our
peace and even to our civilization,
is an opinion entertained by most
thoughtful persons. The demand,
therefore, that the treaty shall be re-
scinded or modified is reasonable and
legitimate. But while that treaty ex-
ists, the Chinese have the same rights
of immigration and residence as are
possessed by any other foreigners.
Those rights it is the duty of the
courts to maintain, and of the gov-
ernment to enforce.
"The declaration that 'the Chinese
must go, peaceably or forcibly' is an
insolent contempt of national obliga-
tions and an audacious defiance of
national authority. Before it can be
carried into effect by force the au-
thority of the United States must
first be not only defied, but resisted
and overcome. The attempt to effect
this object by violence will be crushed
by the power of the government. The
attempt to attain the same 'object
indirectly by legislation will be met
with equal firmness by the courts;
no matter whether it assumes the
guise of an exercise of the police
power, or of the power to regulate
corporations, or of any other power
reserved by the state; and no mat-
ter whether it takes the form of a
constitutional provision, legislative
enactment, or municipal ordinance. ' '
235 EMPLOYMENT OF ALIENS ON PUBLIC WORKS. [§ 201
right to life and liberty is the right to make labor available and
exchangeable for other things of value. The treaty with China
guarantees to the subjects of that country certain privileges and
immunities, which they are entitled to enjoy to the same extent
as the subjects of the most favored nation. They include all
those rights which are fundamental and of right belong to the citi-
zens of all free governments. Among these is the right to labor
and the right to follow any lawful employment in a lawful man-
ner.12
§ 201. Employment of aliens on public works. — While a state
has the general power to say to whom it or its contractors will
give employment, still the state, as the state, is a member of the
Union, and subordinate in the exercise of its general power to
treaties made pursuant to the Constitution; it cannot exercise
such power where it will conflict with a treaty. The state of
Oregon enacted a law providing that: "It shall be unlawful to
employ any Chinese laborers on any street, or part of street, of
any city or incorporated town of this state, or on any public
works or public improvement of any character, except as a
punishment for crime, and all contracts which any person or cor-
poration may have for the improvement of any such street, or
part of street, or public works or improvement of any character,
shall be null and void from and after the date of the employment
of any Chinese laborers thereon by the contractor." 13 A bill in
equity was filed to obtain an injunction to enjoin the city of
Portland from enforcing the act, and while a demurrer was
sustained upon other grounds, the court held that the act of the
legislature was void, because in conflict with the treaty which
secured to the Chinese residents of the United States the same
right to be employed and labor for a living as the subjects of
any other nation.14 Judge Deady referred to the treaty be-
tween China and the United States and said: "This treaty, until
12 In re Tiburcio Parrott, 6 Saw. Field in the 'Queue Ordinance Case'
349, 1 Fed. 48. lately decided in the circuit court for
13 Sess. Laws 1872, p. 9. the district of California (Ho Ah
14 Baker v. Portland, 5 Saw. 566, Kow v. Nunan, Case No. 6546, 5 Saw.
2 Fed. Gas. No. 777. In the course 552), to the national government 'be-
of the opinion it was said by Judge long exclusively the treaty-making
Deady: "As was said by Mr. Justice power and the power to regulate
§ 201] TREATIES, STATE CONSTITUTIONS AND STATUTES.
236
it is abrogated or modified by the political department of the
government, is the supreme law of the land, and the courts are
bound to enforce it fully and fairly. An honorable man keeps
commerce with foreign nations, which
includes intercourse as well as traffic.
.... That government alone can de-
termine what aliens shall be per-
mitted to land within the United
States and upon what conditions they
shall be permitted to land.'
"It will be observed that the
treaty recognizes the right of the
Chinese to change their home and al-
legiance and to visit this country and
become permanent residents thereof,
and as such residents it guarantees
to them all the privileges and im-
munities that may be enjoyed, here
by the citizens or subjects of any
nation. Therefore, if the state can
restrain and limit the Chinese in their
labor and pursuits within its limits,
it may do the same by the subjects
of Great Britain, France, or Ger-
many.
' ' True, this act does not undertake
to exclude the Chinese from all kinds
and fields of employment. But if
the state, notwithstanding the treaty,
may prevent the Chinese or the sub-
jects of Great Britain from working
upon street improvements and pub-
lic works, it is not apparent why it
may not prevent them from engaging
in any kind of employment or work-
ing at any kind of labor.
"Nor can it be said with any show
of reason or fairness that the treaty
does not contemplate that the Chinese
shall have the right to labor while
in the United States. It impliedly
recognizes their right to make this
country their home, and expressly
permits them to become permanent
residents here; and this necessarily
implies the right to live and to labor
for a living. It is difficult to con-
ceive a grosser case of keeping the
word of promise to the ear and break-
ing it to the hope than to invite
Chinese to become permanent resi-
dents of this country upon a direct
pledge that they shall enjoy all the
privileges here of the most favored
nation, and then to deliberately pre-
vent them from earning a living, and
thus make the proffered right of resi-
dence a mere mockery and deceit. In
Chapman v. Toy Long (Case No.
2610, 4 Saw. 28), this court in
considering these provisions of this
treaty, said : ' The right to reside in
the country, with the same privi-
leges as the subjects of Great Britain
or France, implies the right to fol-
low any lawful calling or pursuit
which is open to the subjects of these
powers. '
"Whether it is best that the
Chinese or other people should be
allowed to come to this country with-
out limit and engage in its indus-
trial pursuits without restraint is a
serious question, but one which be-
longs solely to the national govern-
ment. Upon it there has always been
a difference of opinion, and prob-
ably will be for years to come.
1 ' But so far as this court and the
case before it is concerned, the treaty
furnishes the law, and with that treaty
no state or municipal corporation
thereof can interfere. Admit the
wedge of state interference ever so
little, and there is nothing to pre-
vent its being driven home and de-
stroying the treaty and overriding
the treaty-making power altogether. ' '
Baker et al. v. Portland, 2 Fed. Cas.
No. 777, 5 Saw. 5(56.
237 RIGHT TO ADMINISTRATION. [§ 202
his word under all circumstances, and an honorable nation abides
by its treaty obligations, even to its own disadvantage. The
state cannot legislate so as to interfere with the operation of
this treaty or limit or deny the privileges or immunities guar-
anteed loy it to the Chinese residents in this country."
The provision of the New York statute making it a crime for
a contractor with a municipal corporation for the construction of
public works to employ an alien as laborer on such works is
void not only because it is an unlawful interference with the
personal liberty of the citizen, and a denial of due process of law,
but also of treaties providing that foreign citizens residing in the
United States shall enjoy the same rights and privileges in re-
spect to their persons and property as are secured to American
citizens.15
§ 202. Right to administration. — A consul of a foreign coun-
try is entitled to administer upon the estate of subjects of his
country dying intestate, and the clause in a treaty giving him
"the right to intervene in the possession, administration, and
judicial liquidation of the estate of the deceased" will have the
effect of superseding a state law giving the right of administra-
tion to a local officer. The power conferred upon the consul
by the words above quoted is not limited by the succeeding words
* ' conformably with the laws of the country for the benefit of the
creditors and legal heirs." These words relate merely to the
procedure of administration and not to the right to administer.
The fact that a treaty cannot be reconciled with a state law is
no reason why a state court should not enforce it.16
In the treaty with Italy, the right to administer was not spe-
cially mentioned, but the treaty contained a clause to the effect
that the respective consuls shall enjoy in both countries "all the
rights, prerogatives, immunities and privileges which are now or
may hereafter be granted to the officers of the same grade of the
most favored nation." But the ninth article of the treaty with
15 People v. Warren, 13 Misc. Rep. constitution, and is inalienable.
615, 34 N. Y. Supp. 942. Among the Greenhood's Pub. Pol., rule CCCIII;
rights of personal liberty is that of In re Baker, 29 How. Pr. 485.
making contracts, of laboring for 16 Matter of Lobrasciano, 38 Misc.
others, and of employing others to Eep. 415, 77 N. Y. Supp. 1040.
labor. Such right is secured by the
§ 203] TREATIES, STATE CONSTITUTIONS AND STATUTES. 238
the Argentine Republic provided that "If any citizen of the two
contracting parties shall die without will or testament in any of
the territories of the other, the consul-general, or consul of the
nation to which the deceased belonged, or the representatives of
such consul-general or consul in his absence shall have the right
to intervene in the possession, administration and judicial liquida-
tion of the estate of the deceased, conformably for the benefit
of the creditors and legal heirs." It was held in the surrogate's
court of New York that under the most favored nation clause in
the treaty with Italy, the privileges granted to consuls of the
Argentine Eepublic were also granted to those of Italy, and
hence the consuls of that country had the paramount right to
take possession of the estates of Italian subjects dying intestate
within his consulor jurisdiction and administer them.17
Under the treaty of 1832 between the United States and Rus-
sia 18 the two contracting powers have the liberty of having con-
suls in their respective ports, who are to enjoy the privileges
and powers granted to those of the most favored nation. As
the most favored nation clause of the treaty of 1853 with the
Argentine Republic 19 provides that if any citizen of either of
the two contracting parties should die without will or testa-
ment in the territory of the other, the consul-general or consul
of the nation to which the deceased belonged, or his representa-
tive, shall have the right to intervene in the possession, adminis-
tration and liquidation of the estate of the deceased, it follows
that where a Russian subject dies intestate, leaving personal
property, the Russian vice-consul is entitled to the appointment
of administrator of the estate to the exclusion of the public ad-
ministrator, who, in the absence of such a provision, would be
entitled to administer.20
§ 203. Power of court to appoint attorney for absent heirs
displaced by treaty. — The power of a court to appoint an attor-
17 Matter of Fattosini, 33 Misc. 18 8 Stats. 848.
Rep. 18, 67 N. Y. Supp. 119. The 19 10 Stats. 1001.
correctness of this decision was ques- 20 In re Wyman, 191 Mass. 276, 114
tioned by Surrogate Thomas in Matter Am. St. Eep. 601, 77 N. E. 379.
of Logiorato, 34 Misc. Eep. 31, 69 But see Succession of Thompson, 9
N. Y. Supp. 507, but it was ap- La. Ann. 96; Sturgis v. Slacum, 35
proved in Matter of Lobrasciano, 38 Mass. (18 Pick.) 36; Ferrie v. Public
Misc. Eep. 415, 77 N. Y. Supp. 1040. Administrator, 3 Bradf. Sur. 249.
239 STATE PILOTAGE LAWS. [§ 204
Dey for absent heirs authorized by a provision of the code is
displaced by a treaty providing that upon the death of a citi-
zen of a foreign country in the United States, without any testa-
mentary executor appointed by him, the consul shall have the
right to appear personally or by delegate in all proceedings on
behalf of the absent or minor heirs.21 As to this provision being
within the scope of the 'treaty-making power, Mr. Justice Miller,
speaking for the court, said: "It is idle to call in question the
competency of the treaty-making power, nor do we think any
question can be raised that the subject of this treaty under dis-
cussion here is properly within the scope of the power. That
subject is the rights of French subjects to be represented here
by the consul of their country. On that subject4he treaty pro-
vision is plain. The treaty by the organic law is the supreme
law of the land, binding all courts, state and federal. ' ' 22
§ 204. State pilotage laws. — A provision in a treaty that "no
higher or other duties or charges shall be imposed in any ports
of the United States on British vessels than those payable in
the same ports by vessels of the United States" will not super-
sede state pilotage laws as applied to a British vessel coming
from a foreign port, because of the exemption of coastwise ves-
sels of the United States from pilotage under the Revised Stat-
utes of the United States, or on account of any lawful exemption
of coastwise vessels created by the laws of the state.23
The regulations of a state providing for the appointment of
pilots and restricting the right to pilot to those who may re-
ceive such appointment do not infringe any inherent rights
guaranteed by the federal Constitution, nor do they creat a
monopoly or combination forbidden by the federal anti-trust
laws.24
21 Succession of Eobasse, 47 La. purpose is accomplished by placing
Ann. 1452, 49 Am. St. Rep. 433, 17 the delegate before the court, as
South. 867. representing the absent heirs, and
22 Succession of Robasse, 47 La. ' precluding any attorney to repre-
Ann. 1452, 49 Am. St. Rep. 433, 17 sent them."
South. 867. Said the court further: 23 Olsen v. Smith, 195 U. S. 332,
"The treaty discloses no purpose to 25 Sup. Ct. Rep. 52, 49 L. ed. 224.
require our courts to appoint as the 24 Olsen v. Smith, 195 U. S. 332,
attorney for the absent heirs the 25 Sup. Ct. Rep. 52, 49 L. ed. 224.
delegate of the French consul. Its
§§ 205, 206] TREATIES, STATE CONSTITUTIONS AND STATUTES. 240
§ 205. Trademarks protected by treaty. — Treaties frequently
provide for the protection of trademarks. But what constitutes
a trademark may be a subject of discussion. Under the laws of
Germany, words alone, and apart from some symbol or design,
are not the subject of appropriation for a trademark. The pro-
vision, however, in the treaty with Germany that citizens of that
country .shall enjoy in the United States the same protection as
native citizens in matters of trademarks will not prevent a citi-
zen of Germany from acquiring by prior use in the United States
a trademark in a particular word.25 Nor will the provision in
a treaty that if a trademark has become public property in the
country of its origin, it shall likewise be free in the territory of
the other party, interfere with the appropriation in this country
by prior use of a word which cannot be made the subject of ap-
propriation in the other country, party to the treaty.26
§ 206. Persons adding to the prevalence of disease. — A stat-
ute of Louisiana empowered the state board of health in its dis-
cretion to " prohibit the introduction into any infected portion
of the state of persons acclimated or unacclimated or said to be
immune, when in its judgment the introduction of such persons
would add to or increase the prevalence of the disease." It was
held that this statute was not unconstitutional as infringing upon
the right and power of Congress to regulate commerce, nor was
it in contravention of the treaties with France and Italy.27 This
case came before the supreme court of the United States. By a
divided court the statute was held not to be in conflict either
with the Constitution or with any treaty. As to the claim
that it conflicted with treaty provisions, Mr. Justice White, who
delivered the opinion of the court, said that, assuming that the
treaties were applicable, they were not intended to, and did not,
deprive the government of the United States of those powers
whose exercise was necessary for the health and safety of the
people, and that if the treaties were to have the effect claimed,
23 Baltz Brewing Co. v. Kaiser- 2T Compagnie Francaise etc. v. State
brauerei, 74 Fed. 222, 20 C. C. A. Board of Health, 51 La. Ann. 645, 72
402. Am. St. Eep. 458, 25 South. 591, 56
26 Baltz Brewing Co. v. Kaiser- L. E. A. 795.
brauerei, 74 Fed. 222, 20 C. C. A.
402.
241 VIEWS OF MAJORITY OF COURT. [§ 207
they would be equally operative against a quarantine established
by the United States as by a state government. Mr. Justice
Brown, with whom was Mr. Justice Harlan, dissented, and stated
that while efficient quarantine laws were necessary, there was no
authority in the states to enact such laws as would conflict with
treaties with foreign nations.28
§ 207. Views of majority of court. — On the point urged that
the statute as applied and construed was void because it was in
conflict with the treaties with Italy and France guaranteeing cer-
tain rights, privileges and immunities to the citizens of those
countries, Mr. Justice White, voicing the opinion of the court,
said:
"Reliance is placed, to sustain this proposition, on the provi-
sions of a treaty concluded with the Kingdom of Italy on Feb-
ruary 26, 1871; on the terms of a treaty with Great Britain on
July 3, 1815, as also a treaty between the United States and the
Kingdom of Greece, concluded December 22, 1837, and one con-
cluded with the Kingdom of Sweden and Norway on July 4, 1827.
The treaties of other countries than Italy are referred to upon
the theory that as by the treaty concluded with France on April 30,
1803, by which Louisiana was acquired, it was provided that
France should be treated upon the footing of the most favored
nation in the ports of the ceded territory, therefore the treaties
in question made with other countries than France were ap-
plicable to the plaintiff in error, a French subject.
"Conceding, arguendo, this latter proposition, and therefore
assuming that all the treaties relied on are applicable, we think it
clearly results from their context that they were not intended to,
and did not, deprive the government of the United States of those
powers necessarily inhering in it and essential to the health and
safety of its people. We say the United States, because if the
treaties relied on have the effect claimed for them, that effect
would be equally as operative and conclusive against a quarantine
establishment by the government of the United States as it would
be against a state quarantine operating upon and affecting for-
eign commerce by virtue of the inaction of Congress. Without
28 Compagnie Francaise v. State Board of Health, 186 U. S. 380, 22
Sup. Ct. Eep. 811, 46 L. ed. 1209.
Treaties — 16
§ 207] TREATIES, STATE CONSTITUTIONS AND STATUTES. 242
reviewing the text of all the treaties, we advert to the provisions
of the one made with Greece, which is principally relied upon.
"It is apparent that it provides only the particular form of
document which shall be taken by a ship of the Kingdom of
Greece and reciprocally by those of the United States for the
purpose of establishing that .infectious or contagious diseases did
not exist at the point of departure. But it is plain from the face
of the treaty that the provision as to the certificate was not in-
tended to abrogate the quarantine power, since the concluding
section of the article in question expressly subjects the vessel
holding the certificate to quarantine detention, if, on its arrival,
a general quarantine had been established against all ships com-,
ing from the port whence the vessel holding the certificate had
sailed. In other words, the treaty having provided the certifi-
cate and given it effect under ordinary conditions, proceeds to
subject the vessel holding the certificate to quarantine, if, on its
arrival, such restriction had been established in consequence of
infection deemed to exist at the port of departure. Nothing in
the text of the treaty, we think, gives even color to the sug-
gestion that it was intended to deal with the exercise by the
government of the United States of its power to legislate for the
safety and health of its people or to render the exertion of such
power nugatory by exempting the vessels of the Kingdom of
Greece, when coming to the United States, from the operation of
such laws. In other words, the treaty was made subject to the
enactment of such health laws as the local conditions might evoke
not paramount to them. Especially where the restriction imposed
upon the vessel is based, not upon the conditions existing at the
port of departure, but upon the presence of an infectious or con-
tagious malady at the port of arrival within the United States,
which, in the nature of things, could not be covered by the cer-
tificate relating to the state of the public health at the port whence
the ship had sailed."29
29 Compagnie Francaise v. State ' ' Article 15. It is agreed that
Board of Health, Louisiana, 186 U. vessels arriving directly from the
S. 380, 22 Sup. Ct. Kep. 811, 46 L. United States of America at a port
ed. 1216. The language of article 15 within the dominions of His Majesty
of the treaty with Greece referred to the King of Greece, or from the
in the above opinion is as follows: Kingdom of Greece, at a port of
243 DISSENTING VIEWS. [§ 208
§ 208. Dissenting views. — Mr. Justice Brown, in his dissent-
ing opinion, said on the point of the construction of the treaty
stipulation :
"I am also unable to concur in the construction given in the
opinion of the court to the treaty stipulation with France and
other foreign powers. The treaty with France of 1803 provides
that 'the ships of France shall be treated upon the footing of the
most favored nations in the ports above mentioned' of Louisiana.
Article 15 of the treaty with Greece of December 22, 1837, set
forth in the opinion, provides that vessels arriving directly from
the Kingdom of Greece at any port of the United States of
America, 'and provided with a bill of health granted by an of-
ficer having competent power to that effect at the port whence
such vessel shall have sailed, setting forth that no malignant or
contagious diseases prevailed in that port, shall be subjected to
no other quarantine than such as may be necessary for the visit
of the health officer of the port where such vessels shall have ar-
rived, after which said vessels shall be allowed immediately to
enter and unload their cargoes: Provided always, That there shall
be on board no person, who, during the voyage, shall have been
attacked with any malignant or contagious diseases; that such
vessels shall not, during their passage, have communicated with
any vessel liable itself to undergo a quarantine; and that the
country whence they came shall not at that time be so far in-
fected or suspected that, before their arrival, an ordinance had
been issued in consequence of which all vessels coming from that
the United States of America, and person who, during the voyage, shall
provided with a bill of health granted have been attacked with any malig-
by an officer having competent power nant or contagious disease; that such
to that effect at the port whence such vessels shall not, during the passage,
vessel shall have sailed, setting forth have communicated with any vessel
that no malignant or contagious liable itself to undergo a quarantine;
diseases prevailed in that port, shall and that the country whence they
be subjected to no other quarantine came shall not at that time be so
than such as may be necessary for far infected or suspected that, before
the visit of the health officer of the their arrival, an ordinance had been
port where such vessel shall have issued in consequence of which all
arrived, after which said vessels shall vessels coming from that country
be allowed immediately to enter and should be considered as suspected,
unload their cargoes; Provided, al- and consequently subject to quaran-
ways, that there shall be on board no tine." 8 Stats, at Large, 506.
§ 209] TREATIES, STATE CONSTITUTIONS AND STATUTES. 244
country should be considered as suspected, and consequently sub-
ject to quarantine.'
"If the law in question in Louisiana, excluding French ships
from all access to the port of New Orleans, be not a violation of
the provision of the treaty that vessels 'shall be subjected to no
other quarantine than such as may be necessary for the visit of
the health officer of the port where such vessels shall have ar-
rived, after which said vessels shall be allowed immediately to
enter and unload their cargoes,' I am unable to conceive a state
of facts which would constitute a violation of that provision.
Necessary as efficient quarantine laws are, I know of no author-
ity in the states to enact such as are in conflict with our treaties
with foreign nations. ' ' 30
§ 209. South Carolina Dispensary Act.— In 1892 a statute
was passed in South Carolina prohibiting the manufacture or sale
of intoxicating liquors as a beverage in that state, but providing
for the appointment of a commissioner who was authorized to
purchase all intoxicating liquors for lawful sale in the state,
and to furnish the same to certain persons designated as dis-
pensers, who in turn should sell them on the conditions pre-
scribed by the act. It was declared in the statute that "the
manufacture, sale, barter, or exchange, or the keeping or offer-
ing for sale, barter, trade or exchange, within this state of any
spirituous, malt, vinous, fermented or other intoxicating liquors,
or any compound or mixtures thereof, by whatever name called,
which will produce intoxication, by any person, business, firm,
corporation or association, shall be regulated and conducted as
provided in this act." A bill in equity was filed by certain
Italian subjects against the governor and treasurer of the state,
to enjoin them from carrying out the provisions of this law, and
among other grounds urged, it was contended that the act was
in conflict with the treaty with Italy. The court stated that the
complainants had under the treaty the same rights as citizens
of the United States, and that it would be absurd to say that
they had greater rights. The court declared that the right to
sell intoxicating liquors is within the police power of the states,
and that "The police power is a right reserved by the states, and
30 Compagnie Francaise v. State S. 380, 22 Sup. Ct. Kep. 811, 46 L.
Board of Health of Louisiana, 186 U. .ed. 1209.
245 TREATY DEVESTING STATE OF RIGHT TO TAX. [§ 210
has not been delegated to the general government. In its law-
ful exercise, the states are absolutely sovereign. Such exercise
cannot be affected by any treaty stipulations. ' ' 31
§ 210. Treaty devesting state of right to tax. — A treaty may
exempt a foreign citizen from the payment of a succession tax,
either by direct language or by implication under the favored
nation clause. The statute of Louisiana provided that "every
person not domiciled in this state, and not being a citizen of
any state or territory of the Union, who shall be entitled, whether
as heir, legatee, or donee, to the whole or any part of the suc-
cession of a person deceased, whether such person shall have
died in this state or elsewhere, shall pay a tax for the benefit
of the Charity Hospital of ten per cent on all sums due, on the
value of all property which may have actually been received from
said succession, or so much thereof as is situated in this state,
after deducting all debts due by the said succession." Re-
sistance to a demand for the payment of this tax was based on
the provisions of the Italian treaty of 1871 that: "The citizens
of each of the contracting parties shall have power to dispose
of their personal goods within the jurisdiction of the other, by
sale, donation, testament, or otherwise; and their representatives,
being citizens of the other party, shall succeed to their personal
goods, whether by testament or ab intestato, and they may
take possession thereof, either by themselves, or others acting for
them, and dispose of the same at their will, paying such duties
only as the inhabitants of the country wherein such goods are
31 Cantini v. Tillman, 54 Fed. 969, submitting themselves to the laws
per Simonton, District Judge. The there established.
language of the treaty relied on in "Art. 3. The citizens of each
that case was: of the high contracting parties shall
' ' Art. 2. The citizens of each receive in the states and territories
of the high contracting parties shall of the other the most constant pro-
have liberty to travel in the states tection and security for their persons
"and territories of the other; to carry and property, and shall enjoy in this
on trade, wholesale and retail; to hire respect the same rights and privileges
and occupy houses and warehouses ; to as are or shall be granted to the
employ agents of their choice; and natives, on their submitting them-
generally to do anything incident to selves to the conditions imposed upon
or necessary for trade, upon the same the natives."
terms as the natives of the country,
§ 211] TREATIES, STATE CONSTITUTIONS AND STATUTES. 216
shall be subject to pay in like cases. As for the case of real
estate, the citizens and subjects of the two contracting parties
shall be treated on the footing of the most favored nation."
For the purpose of determining what rights were conferred by
the clause that the citizens of the foreign country should, in the
case of real estate, "be treated on the footing of the most favored
nation," the court proceeded to examine treaties made with
other nations, and as in some other treaties provisions existed
declaring that foreign citizens might enjoy real property in the
same manner as citizens of the United States, and should not be
subjected to taxes on transfer or inheritance different from those
paid by American citizens, or to taxes which should not be
equally imposed, the court held that subjects of Italy were ex-
empt from the payment of this tax levied against foreign heirs.32
Likewise, it was held that foreign citizens were exempt from the
payment of this tax under the treaty with France 33 and Bavaria.34
But where the tax has become vested in the state before the
conclusion of a treaty, a treaty subsequently made cannot devest
the right to the tax.35 This is true, not only where the words
of the treaty are doubtful, but also even if the words of the treaty
had imported such an intention.36
It was held in Louisiana that the words "personal goods" in
the treaty of 1795 between the United States and Spain refer
to movable property only, and that the only action taken by
the two governments respecting real estate was to provide for
the consequences of the special case where foreign citizens should
be prohibited from inheriting real estate. Hence a succession or
inheritance tax may be charged on foreign heirs and legatees.37
§ 211. Criminal procedure. — While a foreign citizen is en-
titled to the equal protection of the laws, he cannot claim more.
32 Succession of Rixner, 48 La. Ann. 412. See Amat 's Succession, 18 La.
563, 19 South. 601, 32 L. B. A. 189. Ann. 403.
In Succession of Eobasse, 49 La. 34 Crusui's Succession, 19 La. Ann.
Ann. 1413, 22 South. 767, the author- 369.
ities are reviewed, and Succession of "5 Prevost v. Greenaux, 19 How.
Kixner, 48 La. Ann. 558, 19 South. (TJ. S.) 1, 15 L. ed. 572.
597, 32 L. E. A. 177, affirmed. 36 Prevost v. Greenaux, 19 How.
33 Dufour's Succession, 19 La. Ann. (U. S.) 1, 15 L. ed. 572.
391; Prevost ;s Succession, 12 La. 37 Succession of Sala, 50 La. Ann.
Ann. 577; Marquis de Circe's Sue- 1009, 24 South. 674.
cession, Manning's Unreported Cases,
247 CONSULS ACTING AS JUDGES. [§ 212
In the "Anarchist Cases" of Chicago it was claimed in the su-
preme court of the United States that certain federal questions
were involved, and among other suggestions made in behalf of
two of the petitioners — one of whom was born in Germany and
the other in Great Britain — was that they had been denied by
the state court rights guaranteed to them by treaties between
the United States and their respective countries. The court
said that as to this contention it was sufficient to say that no such
questions were made or decided in the courts below, and they
could not be raised in the supreme court of the United States for
the first time. While of course it is a dictum, not necessary to
the decision, yet it should be observed that Mr. Chief Justice
Waite, in delivering the opinion of the court, added: "Besides, we
have not been referred to any treaty, neither are we aware of
any, under which such a question could be raised. ' ' 38
§ 212. Consuls acting as judges. — Courts of a state may be
deprived by a treaty of jurisdiction exercised by them over a cer-
tain class of actions or proceedings. The treaty between the
United States and Norway provides that "the consuls, vice-con-
suls, or commercial agents, or the persons duly authorized to
supply their places, shall have the right as such to sit as judges
and arbitrators on such differences as may arise between the
captains and crews of the vessels belonging to the nation, whose
interests are committed to their charge, without the interference
of the local authorities, unless the conduct of the crews or, of
the captain should disturb the order or tranquility of the
38 Ex parte Spies, 123 U. S. 131, 8 Sup. Ct. Kep. 195, 32 L. ed. 642;
Sup. Ct. Kep. 21, 31 L. ed. 80. Manning v. French, 133 U. S. 191,
That to authorize a writ of error 10 Sup. Ct. Eep. 260, 33 L. ed. 585;
to a state court, the question involved Northern Pac. Ey. Co. v. Austin, 135
must have been decided in the court U. S. 318, 10 Sup. Ct. Eep. 759, 34 L.
below, see Chappell v. Bradshaw, 128 ed. 219; Brown v. Massachusetts, 144
U. S. 134, 9 Sup. Ct. Eep. 40, 32 L. U. S. 579, 12 Sup. Ct. Eep. 759, 36
eu. 370; Brooks v. Missouri, 124 U. S. L. ed. 550; McNulty v. California, 149
394, 8 Sup. Ct. Eep. 443, 31 L. ed. U. S. 648, 13 Sup. Ct. Eep. 960, 37
456 ; Leeper v. Texas, 139 U. S. 467, L. ed. 884 ; Schuyler Nat. Bank v.
11 Sup. Ct. Eep. 579, 35 L. ed. 227; Bollong, 150 U. S. 88, 14 Sup. Ct.
French v. Hopkins, 124 U. S. 524, 8 Eep. 25, 37 L. ed. 1009; Morrison
Sup. Ct. Eep. 589, 31 L. ed. 537 ; v. Watson, 154 U. S. 115, 14 Sup. Ct.
Baldwin v. Kansas, 129 U. S. 57, 9 Eep. 997, 38 L. ed. 929.
§ 212] TREATIES, STATE CONSTITUTIONS AND STATUTES.
248
country, or the said consuls, vice-consuls, or commercial agents
should require their assistance to cause their decisions to be
carried into effect or supported. It is, however, understood,
that this species of judgment or arbitration shall not deprive the
contending parties of the right they have to resort, on their
return, to the judicial authority of their country."39 It is
almost uniformly decided that such a treaty takes away all
right of action for wages in the courts of the United States by
a seaman coming within the purview of the treaty, regardless
of the question whether the action is in rem or in personam.40
A libel for wages brought by an American seaman against a
German vessel, where he had shipped on board and claimed to
be entitled to a discharge, was dismissed, although the judge
stated that if the fact had been proved that a discharge had
been granted, he would have been inclined to assume jurisdic-
tion.41
A citizen of the United States brought a libel against a Nor-
wegian steamship for damages and for wages. He alleged that
he shipped on the vessel at Mobile for a round voyage to Tampico,
and that when he arrived in Mobile Bay, on the return trip.
39 8 U. S. Stats. 346, 352.
40 Tellefsen v. Fee, 168 Mass. 188,
60 Am. St. Eep. 379, 46 N. E. 562,
45 L. E. A. 481; The Elwine Kreplin,
9 Blatchf. 438, Fed. Gas. No. 4426;
Norberg v. Hillgren, 5 N. Y. Leg.
Obs. 177; The Salomon!, 29 Fed. 534;
The Burchard, 42 Fed. 608; The
Marie, 49 Fed. 286; The Welhaven,
55 Fed. 80.
In Tellefsen v. Fee, supra, the
court said: "An examination of the
treaty and authorities above cited
makes it plain that the court has
no discretion in the matter, and that
the local authorities have no right to
interfere. Where jurisdiction is given
by a treaty to a consul, vice-consul, or
a commercial agent, he alone has
authority to act in determining in
the first instance whether wages are
due and the amount. It is to be
remembered that the United States
government has the same right by the
treaty in regard to its vessels in
Norway; and this right is insisted
upon by our government. In the
United States Consular Eegulations of
1888, page 25, paragraph 66, under
the title ' Jurisdiction over Disputes
Between Masters, Officers and Crews/
appears the following: 'Exclusive
jurisdiction over such disputes in the
vessels of the United States, including
question of wages, is conferred by
treaties or conventions with7 several
governments named, and among them
Sweden and Norway. And on page
92, paragraph 273, is also the follow-
ing: 'In many instances, by treaty
and consular convention, the United
States have secured to their consular
officers jurisdiction over question of
wages, shipment and discharge of sea-
men.' "
41 The Burchard, 42 Fed. 608.
249
MUNICIPAL, ORDINANCES.
[§ 213
he was put ashore, manacled and finally discharged without full
pay. The Norwegian consul intervened, asserting jurisdiction,
and his position was sustained and the libel dismissed.42 The
United States district court in Maine, however, entertained
jurisdiction of a libel against a Swedish vessel on the ground
that Sweden has no consular representative in that district.43
§ 213. Municipal ordinances. — The supreme court of the
United States has had before it several cases in which it was
called upon to consider the extent of the police power of the states
in the prescription of regulations for the promotion of the
health, peace, morals, education and good order of the people.
It is recognized that the state possesses supreme power over
police regulations.44 Thus, a municipal ordinance which prohibits
the carrying on of public laundries and washhouses within cer-
tain defined limits of a city, between certain hours during the
night, is a police regulation. Such an ordinance is within the
power of the city to make, and it cannot be supervised by a federal
tribunal.45 Such an ordinance is not void on the ground that it
creates a discrimination between those engaged in the laundry
42 The Welhaven, 55 Fed. 80. In
The Elwine Kreplin, 9 Blatchf. 438,
Fed. Gas. No. 4426, the question is
considered fully.
43 The Amalia, 3 Fed. 652. .
44 Commonwealth v. Alger, 7 Cush.
(Mass.) 84; Taunton v. Taylor, 116
Mass. 254; Watertown v. Mayo, 109
Mass. 315, 12 Am. Eep. 694;
Slaughter-house Cases, 83 U. S. (16
Wall.) 36, 21 L. ed. 394; Lake View
v. Eose Hill Cemetery, 70 111. 191, 22
Am. Eep. 71; Daniels v. Hilgard, 77
111. 640; Boston Beer Co. v. Massa-
chusetts, 97 U. S. 25, 24 L. ed. 989.
It is competent for the state to
forbid the carrying of concealed
weapons (State v. Wilforth, 74 Mo.
528, 41 Am. Eep. 330) ; or to require
professional graduates to possess cer-
tain qualifications. State v. Hayward,
3 Eich. 389; Eegents v. Williams, 9
Gill & J. 365, 31 Am. Dec. 72.
A state has the right, under its police
power, to prohibit by a subsequent
statute the transportation of dead
animals under a charter which per-
mits their use as fertilizers, as the
police power of a state is adequate
to give an effectual remedy against
nuisances. Northwestern Fertilizing
Co. v. Hyde Park, 97 U. S. 659, 24
L. ed. 1036; S. C., 70 111. 634. Under
this power regulations may be imposed
for the protection of markets against
the sale of commodities unfit for com-
merce. New Haven etc. T. B. Co. v.
Bunnell, 4 Conn. 59; State v. Fosdick,
21 La. Ann. 256.
45 Barbier v. Connolly, 113 U. S.
27, 5 Sup. Ct. Eep. 357, 28 L. ed.
923. Mr. Justice Field, in delivering
the opinion of the court, said that
neither the fourteenth amendment
nor any other amendment "was de-
signed to interfere with the power
214] TREATIES, STATE CONSTITUTIONS AND STATUTES.
250
business and those in other classes, nor on the ground that it
deprives a person of his right to labor at all times or that it is
unreasonable.46
If, however, a law be impartial in its appearance, yet if it is
administered unequally and with partiality, so as to cause illegal
discriminations between persons similarly situated, such admin-
istration will constitute a denial ,of equal justice within the pro-
hibition of the Constitution.47
§ 214. Special rights to American citizens. — A treaty which
provides that the citizens of a foreign country shall have free
access to the tribunals in their affairs of litigation on the same
terms which are granted by the law and usages of the country
to native citizens and subjects refers only to ordinary litigation.
It does not prevent the government from subsequently be-
stowing special rights of action on its own citizens against itself
of the state, sometimes termed its
'police power' to prescribe regula-
tions to promote the health, peace,
morals, education and good order of
the people, and to legislate so as to
increase the industries of the state,
develop its resources and add to its
wealth and prosperity. From the
very necessities of society, legisla-
tion of a special character, having
these objects in view, must often be
had in certain districts, such as for
draining marshes and irrigating arid
plains. Special burdens are often
necessary for general benefits, for
supplying water, preventing fires,
lighting districts, cleaning streets,
opening parks, and many other ob-
jects. Eegulations for these purposes
may press with more or less weight
upon one than upon another, but they
are designed, not to impose unequal
or unnecessary restrictions upon any-
one, but to promote, with as little
inconvenience as possible, the general
good. Though in many respects nec-
essarily special in their character, they
do not furnish just ground of com-
plaint, if they operate alike upon all
persons and property under the same
circumstances and conditions. Class
legislation, discriminating against
some and favoring others, is prohib-
ited; but legislation which, in carry-
ing out a public purpose, is limited
in its application, if within the sphere
of its operation it affects all persons
similarly situated, is not within the
amendment. ' '
46 Soon King v. Crowley, 113 U. S.
703, 5 Sup. Ct. Eep. 730, 28 L. ed.
1145.
47 Yick Wo v. Hopkins, 118 U. S.
356, 6 Sup. Ct. Eep. 1064, 30 L. ed.
221. Mr. Justice Matthews, in de-
livering the opinion of the court, said:
"When we consider the nature and
the theory of our institutions of
government, the principles upon which
they are supposed to rest, and re-
view the history of their develop-
ment, we are constrained to conclude
that they do not mean to leave room
for the play and action of purely
personal and arbitrary power. ' '
251 DAMAGES FOR DEATH OP RELATIVE. [§ 215
to the exclusion of aliens. Hence such foreign subjects are not
entitled to maintain an action in the court of claims for Indian
depredations under an act of Congress giving this court juris-
diction of claims for property of citizens of the United States
taken or destroyed by an Indian tribe or nation.48
§ 215. Right of nonresident aliens to damages for death of
relative. — Statutes have been passed in many of the states giv-
ing a right of action to the husband or wife or next of kin of a
person who has been killed by the negligence of another. There
is a diversity of opinion upon the question whether a nonresident
alien may claim the benefits of such statutes. On the one hand
it is asserted that a construction of the statute which would in-
clude nonresident aliens is contrary to its spirit and policy.49 In
Colorado a similar construction was placed upon the statute of
that state.50 So in Wisconsin, it was held that such statutes had
no extraterritorial force, bound only those within the limits of
the state, and hence nonresident aliens could not claim the bene-
fit of the statute.51 On the other hand, it is declared that while no
duties can be imposed by statute upon persons within the limits of
another state, still, rights can be offered to such persons, and there
is nothing to prevent them from accepting the offer.52 This is
on the theory that statutes of this character are enacted for the
benefit of the employee, and this is the reason that a cause of
action is given to the next of kin. The statute is equivalent to
48 Valk v. United States, 29 Ct. of widows, children, and parents of the
Cl. 62. deceased, it is a construction so ob-
49 Deni v. Pennsylvania E. E. Co., viously opposed to the spirit and
181 Pa. 525, 59 Am. St. Eep. 676, policy of the statute that we cannot
37 Atl. 558. "Our statute," said adopt it."
the court, "was not intended to con- 50 Brannigan v. Union G. M. Co.,
fer upon nonresident aliens rights of 93 Fed. 164.
action not conceded to them or to 51 McMillan v. Spider Lake Saw-
us by their own country, or to put mill etc. Co., 115 Wis. 332, 95 Am.
burdens on our own citizens to be St. Eep. 947, 91 N. W. 979, 60 L.
discharged for their benefit. It has E. A. 589.
no extraterritorial force, and the 52 Mulhall v. Fallon, 176 Mass. 266,
plaintiff is not within the purview of 79 Am. St. Eep. 309, 57 N. E. 386,
it. While it is possible that the 54 L. E. A. 934. "In all cases/'
language of the statute may admit said Mr. Chief Justice Holmes, "the
of a construction which would in- statute has the interests of the em-
elude nonresident aliens, husbands, ployees in mind. It is on their ac-
§ 216] TREATIES, STATE CONSTITUTIONS AND STATUTES. 252
a penalty placed upon the employer for his negligence, and its
primary object is to secure the protection of the life of the em-
ployee. It may be said that the weight of authority is in favor
of the proposition that the statute is intended to protect the
laboring man by enforcing the observance by the employer of
the rule requiring him to furnish his servant with a safe place
in which to work, and there can be no valid reason for limiting
the right to recover damages to resident aliens.53
§ 216. Prevention of intrusion on Indian lands a police regula-
tion.— As an instance of a police regulation not inconsistent with
a treaty, attention may be called to a statute of New York
which authorized the summary removal of persons other than
Indians, settling or residing upon lands belonging to or occupied
by any nation or tribe of Indians. This statute, it was con-
tended among other grounds, was invalid, because in conflict
with a treaty made with an Indian tribe. The court upheld it,
however, as a police regulation for the protection of Indians from
intrusion and for the preservation of the peace, and remarked:
"The power of a state to make such regulation to preserve the
peace of the community is absolute, and has never been surren-
dered. ' ' 54 The state can exercise its police power over an Indian
reservation.55 An Indian may be indicted under the criminal laws
of a state for a murder committed out of the reservation.56
count that an action is given to the 53 Alfson v. Bush Company, 182 N.
widow or next of kin. Whether the Y. 393, 108 Am. St. Eep. 815, 75 N.
action is to be brought by them or E. 230; Kellyville Coal Co. v. Pe-
by the administrator the sum to be trayis, 195 111. 215, 88 Am. St. Eep.
recovered is to be assessed with refer- 191, 63 N. E. 94; Eenlund v. Commo-
ence to the degree of culpability of dore Min. Co., 89 Minn. 47, 99 Am.
the employer or negligent person. St. Eep. 534, 93 N. W. 1057; Eomano
In other words, it is primarily a pen- v. Capital City Brick Co., 125 Iowa,
alty for the protection of the life 591, 106 Am. St. Eep. 323, 101 N.
of a workman in this state. We can- W. 437; Pittsburgh etc. Ey. Co. v.
not think that workmen were intended Naylor, 73 Ohio St. 115, 112 Am.
to be less protected if their mothers St. Eep. 701, 76 N. E. 505, 3 L. E.
happen to live abroad, or less pro- A., N. S., 473.
tected against sudden than against M State of New York v. Dibble,
lingering death. In view of the very 21 How. (U. S.) 366, 16 L. ed. 149.
large amount of foreign labor em- 55 Benson v. United States, 44 Fed.
ployed in this state, we cannot be- 182.
lieve that so large an exception was M United States v. Sa-coo-da-cot, 1
silently left to be read in." Abb. (U. S.) 383, Fed. Cas. No.
253 COVENANT NOT TO RENT PROPERTY TO A CHINAMAN. [§ 217
§ 217. Covenant not to rent property to a Chinaman. — A
covenant not to rent property to a Chinaman is an infraction of
the treaty with China, guaranteeing to its subjects in the United
States all the rights, privileges and immunities accorded to cit-
izens and subjects of the most favored nation. A suit was
brought to enjoin the execution of a lease in alleged violation of
a covenant in a deed of this character. Many decisions have been
made by the federal courts, nullifying hostile and discriminating
legislation aimed at Chinese residents, but it was contended that
the question as to the legality of the covenant in the deed did
not present a case of legislation at all, and hence was not affected
by these decisions. The court held that the covenant was in
conflict with the fourteenth amendment providing, among other
things, that no state shall "deny to any person the equal protec-
tion of the laws," and declared that it would be a very narrow
construction of this constitutional amendment and the decisions
based upon it to hold that while state and municipal legislatures
cannot discriminate against the Chinese in their legislation, a
citizen of the state may lawfully do so by contract enforceable
by the courts. "Such a view," said Judge Ross, "is, I think,
entirely inadmissible. Any result inhibited by the Constitution
can no more be accomplished by contract of individual citizens
than by legislation, and the courts should no more enforce the
one than the other. This would seem to be very clear. ' ' 57
With relation to the clause in the treaty, the court referred to
the case where it was sought to enforce a contract made in the
United States, after Texas had declared its independence, but
before the acknowledgment of independence by this country,
in which the complainants agreed to furnish, and pursuant to
which they did furnish, money to a general in the Texan army,
to enable him to raise and equip troops to be used against Mexico.
Chief Justice Taney in that case said that a citizen was "bound
to be at war with the country against which the war-making
power has declared war, and equally bound to commit no act
of hostility against a nation with which the Government is in
16,212, 1 Dill. 276. See, also, as to 8T Uandolfo v. Hartman, 49 Fed.
application of the criminal laws of a 181, 16 L. E. A. 277.
state to an Indian reservation, State
v. Doxtater, 47 Wis. 287, 2 N. W.
443.
§ 218] TREATIES, STATE CONSTITUTIONS AND STATUTES. 254
amity and friendship And when that authority has
plighted its faith to another nation that there shall be peace
and friendship between the citizens of the two countries, every cit-
izen of the United States is equally and personally pledged.
The compact is made by the Department of the Government upon
which he himself has agreed to confer the power. It is his own
personal compact as a portion of the sovereignty in whose be-
half it is made. And he can do no act nor enter into any agree-
ment to promote or encourage revolt or hostilities against the
territories of a country with which our Government is pledged
by a treaty to be at peace, without the breach of his duty as a
citizen, and a breach of the faith pledged to the foreign nation.
And if he does so, he cannot claim the aid of a court of justice
to enforce it. ' ' 58 This is a brief extract from the opinion of
Judge Taney, from which Judge Ross quoted at greater length,
and he stated his conclusion to be that "the principle governing
the case is, in my opinion, equally applicable here, where it
is sought to enforce an agreement made contrary to the public
policy of the Government, in contravention of one of its treaties,
and in violation of a principle embodied in its Constitution. Such
a contract is absolutely void, and should not be enforced in any
court — certainly not in a court of equity of the United States. ' ' 59
§ 218. Aliens suing in court. — Resident aliens, in all that re-
lates to the protection of their personal and property rights,
have practically the same rights and privileges as citizens, and as
a consequence they possess the legal remedies necessary for the
enforcement of such rights. Alien friends, irrespective of the
question of their residence or nonresidence, have, in the absence
of disabling statutes, the right to hold and dispose of property
and make contracts, and have the right to resort to the courts
for the protection of those rights. But a suit between two non-
resident aliens upon a cause of action arising in a foreign state
can be maintained only on principles of comity and not as a
matter of right. Actions or proceedings of an auxiliary or equi-
table character in the nature of attachment and execution are
governed by the same rule, although residents of the state may
58 Kennett v. Chambers, 55 U. S. 59 Gandolfo v. Hartman, 49 Fed.
(14 How.) 49, 14 L. ed. 321. 181, 16 L. E. A. 277.
255
TRANSITORY ACTIONS.
[§ 219
he parties to the auxiliary actions as stakeholders or claimants
of the property sought to be reached.60
A state has jurisdiction over persons found within its limits,
and judgment may be rendered against such persons in all cases
in which personal service is had within the state.61
§ 219. Transitory Actions.— The fact that persons are found
within the limits of a court does not obligate it to assume
jurisdiction of a transitory cause of action arising in a foreign
country, but it may exercise such jurisdiction on the principles of
comity.62 If plaintiff does not intend to return to the country
from which he came, the courts will entertain jurisdiction.63
Courts, however, have refused to proceed where a transitory
cause of action was based upon the statute of another country,
owing to the difficulties that would arise in its construction and
the inconvenience and danger of injustice attending such an
investigation.64
60 Disconto Gesellschaft v. Umbreit,
127 Wis. 651, 115 Am. St. Rep. 1063,
106 N. W. 821. The court held that
the provisions of the treaty between
the United States and Prussia, con-
cluded in 1828, and also of the treaty
of 1799 between the same countries,
had no bearing on the questions in-
volved.
61 Eoberts v. Dunsmuir, 75 Cal. 203,
16 Pac. 782; Taylor v. Sharp, 108 N.
C. 377, 13 S. E. 138; Smith v. Gib-
son, 83 Ala. 284, 3 South. 321; Stone
v. United States, 167 U. S. 178, 17
Sup. Ct. Eep. 778, 42 L. ed. 127;
Insurance Co. of North America v.
McLimas, 28 Neb. 653, 44 N. W. 991 ;
Gibson v. Everett, 41 S. C. 22, 19 S.
E. 286; Ex parte Perry etc. Co., 43
S. C. 176, 20 S. E. 980.
62 Dewitt v. Buchanan, 54 Barb.
33; Gardner v. Thomas, 14 Johns.
134, 7 Am. Dec. 445; Mason v. Blair-
eau, 2 Cranch, 240, 2 L. ed. 266.
63 Johnson v. Dalton, 1 Cow. 543,
13 Am. Dec. 564; Pugh v. Gillam,
1 Cal. 485.
64 Great Western Ey. Co. v. Miller,
19 Mich. 305; Mexican etc. Ey. Co.
v. Jackson, 89 Tex. 107, 59 Am. St.
Eep. 28, 33 S. W. 857, 31 L. E. A. 276.
"There could be no reasonable cer-
tainty that the parties ' rights would
be adjusted here as they would be if
the case were tried in the courts of
that country, which is their right, for
it is well settled that if one state
undertakes to enforce a law of an-
other state, the interpretation of that
law as fixed by the courts of the
other state is to be followed. This
difficulty of itself furnishes a suffi-
cient reason for the courts of this
state to decline to assume jurisdic-
tion of this class of cases/' Mexi-
can etc. Ey. Co. v. Jackson, 89 Tex.
107, 59 Am. St. Eep. 28, 33 S. W.
857, 31 L. E. A. 276. As to suits
upon a transitory cause of action
arising in another state of the
Union, see Cofrode v. Gartner, 79
Mich. 332, 44 N. W. 623, 7 L. E.
A. 511. Where the cause of action
does not rest upon the common law,
§§ 220 221] TREATIES, STATE CONSTITUTIONS AND STATUTES. 256
§ 220. Eights of alien to inherit affected by treaty — Com-
ments.— Perhaps the most common case in which the laws of a
state have been altered, or, rather, suspended, by treaties is that
involving the rights of aliens to inherit land. Treaties have
been concluded with various nations in which the right to in-
herit lands has been given to their subjects, and it has been
uniformly held both by the federal and state courts that where
such treaties have been made, the disability of the subjects of the
treaty-making nation have, for the time being, been suspended.
Before passing to a consideration of these cases, it may be well
to pause for a moment and consider the rights of aliens .at common
law.
§ 221. Disability of aliens. — An alien at common law may ac-
quire title by purchase, and his title is good against everybody
but the state. His title can only be devested by office found or
by some act performed by the state for the purpose of acquiring
possession.65 A person who is a bona fide resident of a state,
although he is not a citizen of the United States nor has declared
his intention to become one, may acquire by conveyance and hold
the title of the locators of an unpatented mining claim obtained
but upon a state statute, see St. Louis Dunlop, 1 Wheat. 179, 4 L. ed. 65 ;
etc. Ry. Co. v. McCormick, 71 Tex. Robertson v. Miller, 1 Brock. (U. S.)
660, 9^ S. W. 540, 1 L. R. A. 804 ; 466, 20 Fed. Gas. No. 11,926 ; So-
Texas etc. Ry. Co. v. Richards, 68 ciety etc. v. Wheeler, 2 Gall (U. S.),
Tex. 375, 4 S. W. 627; Morris v. Mis- 105, 22 Fed. Cas. No. 13,156; Stokes
souri Pac. Ry. Co., 78 Tex. 17, 22 Am. v. Dawes, 4 Mason (U. S.), 268, 23
St. Rep. 17, 14 S. W. 228, 9 L. R. A. Fed. Cas. No. 13,477; Farmers' L.
349. & T. Co. v. McKinney, 6 McLean (U.
63 Craig v. Leslie, 16 U. S. (3 S.), 1, 8 Fed. Cas. No. 4667; Dono-
Wheat.) 563, 4 L. ed. 460; Taylor v. van v. Pitcher, 53 Ala. 411, 25 Am.
Benham, 46 U. S. (5 How.) 233, 12 Rep. 634; Harley v. State, 40 Ala.
L. ed. 130; Craig v. Radford, 16 U. 689; Jenkins v. Noel, 3 Stew. (Ala.)
S. (3 Wheat.) 594, 4 L. ed. 467; 60; Ferguson v. Neville, 61 Cal. 356;
Doe v. Robertson, 24 U. S. (11 Fitzgerald v. Garvin, T. U. P. Charlt.
Wheat.) 332, 6 L. ed. 488; Osterman (Ga.) 281; Wunderle v. Wunderle,
v. Baldwin, 6 Wall. 116, 18 L. ed. 144 111. 40, 33 N. E. 195, 19 L. R.
730; Governeur v. Robertson, 11 A. 84; Halstead v. Lake County, 56
Wheat. 332, 6 L. ed. 488; Hughes Ind. 363; Murray v. Fishback, 5 B.
v. Edwards, 9 Wheat. 489, 6 L. ed. Mon. (Ky.) 403; Dudley v. Grayson,
142; Society etc. v. New Haven, 8 22 Ky. (6 T. B. Mon.) 259; El-
Wheat. 464, 5 L. ed. 662; Hepburn v. - mondorff v. Carmichael, 3 Litt. (Ky.)
257
DISABILITY OF ALIENS.
[§ 221
under the statute of the United States, and his right to convey
such title is full and complete.66 ''That an alien may take by
deed, or devise and hold against anyone but the sovereign, until
office found, is a familiar principle of law, which it requires no
citation of authorities to establish. ' ' 67 When Texas was a foreign
country, its Constitution forbade aliens to hold real estate, but
purchasers were competent to hold until office found, and if the
sovereign did not exercise his prerogative, no one had a right
to complain. When Texas was admitted into the Union the dis-
ability of alienage was removed.68
472, 14 Am. Dec. 86; Robasse's Suc-
cession, 47 La. Ann. 1452, 49 Am.
St. Rep. 433, 17 South. 867; Thomp-
son's Succession, 9 Lia. Ann. 96; Mus-
sey v. Pierre, 24 Me. 559; Guyer v.
Smith, 22 Md. 239, 85 Am. Dec. 650;
Buchanan v. Deshon, 1 Har. & G. 280;
McCreery v. Allender, 4 Har. & McH.
409; McCreery v. Wilson, 4 Har. &
McH. 412; Cunningham v. Browning,
1 Bland (Md.), 308; Scanlan v.
Wright, 13 Pick. 523, 25 Am. Dec.
344; Piper v. Richardson, 9 Met.
(Mass.) 155; Corn v. Andre, 3 Pick.
224; Sheaffe v. O'Neil, 1 Mass. 256;
Crane v. Reeder, 21 Mich. 24, 4 Am.
Rep. 430; Quigley v. Birdseye, 11
Mont. 439, 28 Pac. 741 ; Wulf v. Man-
uel, 9 Mont. 279, 23 Pac. 723; Tib-
bitts v. Ah Tong, 4 Mont. 536, 2 Pac.
759; Carlow v. Aultman, 28 Neb. 672,
44 N. W. 873; Courtney v. Turner,
12 Nev. 345; Montgomery v. Dorion,
7 N. H. 475 ; O 'Hanlin v. Van Kleeck,
20 N. J. L. 44; Munro v. Merchant,
28 N. Y. 9; Jackson v. Adams, 7
Wend. 367; Bradstreet v. Supervisors
of Oneida County, 13 Wend. 546 ; Lar-
reau v. Davignon, 5 Abb. Pr., N. S.,
367; Wright v. Saddler, 20 N. Y. 320;
Heeney v. Brooklyn Benev. Soc., 33
Barb. 360; Overing v. Russell, 32
Barb. 363; Goodell v. Jackson, 20
Johns. 693, 11 Am. Dec. 351; Mat-
Treaties — 17
ter of Windle, 2 Edw. Ch. 585;
Mooers v. White, 6 Johns. Ch. 360;
Trustees of University v. Miller, 14
N. C. (3 Dev.) 188; Blount v. Horni-
blea, 3 N. C. (2 Hayw.) 36; Bayard
v. Singleton, 1 N. C. 5; McClenaghan
v. McClenaghan, 1 Strob. Eq. (S. C.)
295, 47 Am. Dec. 532; Groves v. Gor-
don, 3 Brev. (S. C.) 245; Vaux v.
Nesbit, 1 McCord Eq. 352; Jenney v.
Laurens, 1 Speers, 356; Williams v.
Wilson, Mart. & Y. (Tenn.) 248; Bar-
rett v. Kelly, 31 Tex. 476; Clay v.
Clay, 26 Tex. 24; Williams v. Ben-
nett, 1 Tex. Civ. App. 498, 20 S. W.
856; State v. Boston etc. R. Co., 25
Vt. 433; Sands v. Lynham, 27 Gratt.
(Va.) 291, 21 Am. Rep. 348; Fergu-
son v. Franklins, 6 Munf. (Va.) 305;
Marshall v. Conrad, 5 Cal. 364; Ore-
gon Mortg. Co. v. Carstens, 16 Wash.
165, 47 Pac. 421, 35 L. R. A. 841;
Irwin v. McBride, 23 U. C. Q. B.
(Canada) 570; Doe v. Cleveland, 6
U. C. Q. B., O. S., 117; Murray v.
Heron, 7 Grant Ch. (U. C.) 177;
Doe v. Dickson, 2 U. C. Jur. (Canada)
326; Burk v. Brown, 2 Atk. 397;
Theobolds v. Duffoy, 9 Mod. 104.
66 Ferguson v. Neville, 61 Cal. 356.
CT Cross v. Del Valle, 1 Wall. (68
U. S.) 8, 17 L. ed. 515.
68 Osterman v. Baldwin, 6 Wall. (TJ.
S.) 116, 18 L. ed. 730.
§§ 222, 2231 TREATIES, STATE CONSTITUTIONS AND STATUTES. 258
§ 222. Title in aliens when treaty made. — As at common law,
aliens are permitted to acquire title by act of the parties and to
retain the title until the sovereign power forfeits it either by
office found or by some act that, in legal effect, is its equivalent,69
the titles of British subjects to lands in the United States, which
would have been liable to forfeiture, by escheat, for the defect
of alienage were completely protected by the sixth article of
the treaty of peace between the United States and Great Britain
of 1783, and by the ninth article of the treaty of 1794. The title
of the parties under these treaties possesses the same validity as
if they were citizens. It is sufficient for them to show that title
was in them when the treaty was made, and it is not necessary
that they should show an actual possession or seisin.70
An alien grantee of land had, under the Mexican law, the right
to hold and possess it as his own property until he was deprived
of it by the action of the sovereign authority or by the inquisition
of denouncement.71
§ 223. Taking by devise. — Taking by devise is considred
as a taking by purchase.72 The New York statute provided that
"If any alien resident of this state, or any naturalized or native
citizen of the United States, who has purchased and taken, or
who hereafter shall purchase and take, a conveyance of real es-
69 Manuel v. Wulff, 152 U. S. 505, Kauffman, 82 Tex. 65, 17 S. W.
14 Sup. Ct. Eep. 651, 38 L. ed. 532; 513.
Eandall v. Jaques, 20 Fed. Gas. No. 70 Orr v. Hodgson, 4 Wheat. 453,
11,553; Phillips v. Moore, 100 U. S. 4 L- ed- 613-
208, 25 L. ed. 603; Orr v. Hodgson, " De Merle v. Mathews, 26 Cal.
4 Wheat. (U. S.) 453, 4 L. ed. 613; 455'
Hammekin v. Clayton, 2 Woods (U. " Mooers v' White> 6 Johns- Ch-
S.), 336, 11 Fed. Cas. No. 5996; Air- <N' Y"> 360' Jones v' Minogue, 29
' . ' 0- Ark. 637; Fox v. Southack, 12 Mass,
hart v. Massieu, 98 U. S. 491, 25
' 143; Marshall v. Conrad, 5 Call (Va.),
L. ed. 213; Smith v. Zaner, 4 Ala. ' ^T
oo ^ i 3645 Vaux v- Nesbit, 1 McCord Eq.
99; Eacouillat v. Sansevam, 32 Cal. ,a ~ N 0_0 .M . „
(S. C.) 352; Fairfax v. Hunter, 7
376; Bamires v. Kent, 2 Cal. 558; Cranch (u> g )? ^ 0 L ed ^.
People v. Folsom, 5 Cal. 373; Norris gtamm y Bostwick, 122 N. Y. 48,
v. Hoyt, 18 Cal. 217; Johnson v. 25 N E 233) 9 L E A 5Q7. Doehrel
Elkins, 1 App. Cas. (D. C.) 430; v> Hillmer, 102 Iowa, 169, 71 N. W.
^uigley v. Birdseye, 11 Mont. 439, 28 204; Burrow v. Burrow, 98 Iowa, 400,
Pac. 741; Carlou v. Aultman, 28 67 N. W. 287; Bennett v. Hibbert,
Neb. 672, 44 N. W. 873; Gray v. 88 Iowa, 154, 55 N. W. 93.
259 CONSTITUTIONAL LEGISLATION. [§§ 224, 225
tate within this state, has died, or shall hereafter die, leaving
persons who, according to the statutes of this state, would answer
the description of heirs of such deceased person," such persons,
whether they are citizens or aliens, are capable of taking and
holding as heirs of such deceased person, as if they were citizens,
of the United States, the real estate owned and held by such de-
ceased alien or citizen at the time of his death. It was held that
the word "purchase" in this statute included an acquisition by
devise.73
Generally, under statutes of a similar nature, it may be said that
acquisition by devise is included under the term * * purchase. ' ' 74
The method provided by statute must be followed to secure the
escheat of a decedent's property for the nonexistence of heirs, and
the question cannot be determined in a proceeding brought by
an heir to restrain the escheator.75 Hence, it is not proper for
equity to enjoin proceedings to have an escheat declared, where,
if escheat should be found, every question that might arise could
be decided on a traverse,76 and unless an amicus curiae has an
interest or represents someone who has, he cannot move to quash
an inquisition.77
§ 224. Foreign corporation purchasing stock of local corpora-
tion.— A foreign corporation cannot, as a device to enable it to
hold real estate, purchase the capital stock of a local corporation.
Such an act is a violation of the law prohibiting corporations from
acquiring any real estate within the state unless authorized by
law, and lands so held are subject to escheat.78
§ 225. Constitutional legislation. — An act relinquishing the
land to the occupants, passed while proceedings by the escheator
were pending, is constitutional,79 and likewise a statute passed in
a similar manner, providing that property of an illegitimate
should go to his legitimate half-brothers, is valid.80
73 Stamm v. Bostwick, 122 N. Y. 76 Olmstead 's Appeal, 86 Pa. 284.
48, 25 N. E. 233, 9 L. E. A. 597. 7T Dunlop v. Commonwealth, 2 Call
74 Burrow v. Burrow, 98 Iowa, 400, (Va.;, 284.
67 N. W. 287; Bennett v. Hibbert, 78 Commonwealth v. New York L.
88 Iowa, 154, 55 N. W. 93; Doehrel E. & W. E. Co., 114 Pa. 340, 7 Atl.
v. Hillmer, 102 Iowa, 169, 71 N. W. 756.
204. 79 State v. Tilghman, 14 Iowa, 474.
75 Muir v. Thomson, 28 S. C. 499, 80 Gresham v. Eickenbacher, 28 Ga.
6 S. E. 309. 227.
§ 226] TREATIES, STATE CONSTITUTIONS AND STATUTES.
260
If the legislature is given power by the Constitution to provide
methods by which forfeiture may be enforced, there can be no
proceedings until the legislature acts.81 If aliens are prohibited
from acquiring title to real estate, and a conveyance is made upon
a secret trust for the benefit of the foreigner, the maker not know-
ing of the trust, while the trust is void, the deed is not.82
§ 226. Alien acquiring title by descent. — At common law an
alien cannot acquire title to land by descent or by mere operation
of law.83 The treaties of 1783 and 1794 between the United States
81 Wiederanders v. State, 64 Tex.
133.
82 Hammekin v. Clayton, 2 Woods,
336, Fed. Gas. No. 5996.
83 Craig v. Leslie, 3 Wheat. (U. S.)
563, 4 L. ed. 460; McKinney v.
Saviego, 18 How. (U. S.) 235, 15
L. ed. 365; Fairfax v. Hunter, 7
Cranch (U. S.), 603, 3 L. ed. 453;
Taylor v. Benham, 5 How. (U. S.)
233, 12 L. ed. 130; Middleton v. Mc-
Grew, 23 How. (II. S.) 45, 16 L.
ed. 403; McLarn v. Wallace, 10 Pet.
(U. S.) 625, 9 L. ed. 559; Dawson
v. Godfrey, 4 Cranch (U. S.), 321, 2
L. ed. 634; Blight v. Rochester, 7
Wheat. (U. S.) 535, 5 L. ed. 516;
Ware v. Wisner, 50 Fed. 319; Contee
v. Godfrey, 1 Cranch C. C. (U. S.)
479, 6 Fed. Gas. No. 3140; Smith v.
Zaner, 4 Ala. 99 ; Etheridge v. Malem-
pre, 18 Ala. 565; Donovan v. Pitcher,
53 Ala. 411, 25 Am. Eep. 634; Siems-
sen v. Bofer, 6 Cal. 250; McNeil v.
Polk, 57 Cal. 323; Crosgrove v. Cros-
grove, 69 Conn. 416, 38 Atl. 219; De
Graff v. Wendt, 164 111. 485, 45 N.
E. 1075; Eldon v. Doe, 6 Blatchf.
(Ind.) 341; Eheim v. Bobbins, 20
Iowa, 45; Brown v. Pearson, 41 Iowa,
481; Meier v. Lee, 106 Iowa, 303, 76
N. W. 712; Hunt v. Warnicke, Hard.
(Ky.) 61; Trimbles v. Harrison, 1
B. Mon. (Ky.) 140; Elmondorff v.
Carmichael, 3 Litt. (Ky.) 472, 14 Am.
Dec. 86; White v. White, 2 Met. (Ky.)
185; Fry v. Smith, 2 Dana (Ky.),
38; Buchanan v. Deshon, 1 Har. & G.
(Md.) 280; Sheaffe v. O'Neil, 1
Mass. 256; Scanlan v. Wright, 13
Pick. 523, 25 Am. Dec. 344; Wacker
v. Wacker, 26 Mo. 426; Harney v.
Donohoe, 97 Mo. 141, 10 S. W. 191;
Utassy v. Giedinghagen, 132 Mo. 53,
33 S. W. 444 : Bradstreet v. Oneida
County, 13 Wejd. (N. Y.) 546; Lynch
v. Clarke, 1 Sand. Ch. (N. Y.) 583;
Jackson v. Limn, 3 Johns. Gas. (N.
Y.) 109; Leary v. Leary, 50 How.
Pr. (N. Y.) 122; Renner v. Miiller, 57
How. Pr. (N. Y.) 229; Bradley v.
Dwight, 62 How. Pr. (N. Y.) 300;
Kennedy v. Wood, 20 Wend. (N. Y.)
230; Mooers v. White, 6 Johns. Ch.
(N. Y.) 360; Larreau v. Davignon,
5 Abb. Pr., N. S. (N. Y.), 367;
Heeney v. Brooklyn Benev. Society,
33 Barb. (N. Y.) 360; Ettenheimer
v. Heffernan, 66 Barb. (N. Y.) 374;
Montgomery v. Dorion, 7 N. H. 475;
Kay v. Watson, 17 Ohio, 27; Jack-
son v. Burns, 3 Binn. (Pa.) 75; En-
nas v. Franklin, 2 Brev. (S. C.) 398;
Halyburton v. Kershaw, 3 Desaus. (S.
C.) 105; Davis v. Hall, 1 Nott &
McC. (S. C.) 292; McClenaghan v.
McClenaghan, 1 Strob. Eq. (S. C.)
295, 47 Am. Dec. 532; Sebben v-
Trezevant, 3 Desaus. (S. C.) 213;
Jenney v. Laurens, 1 Speers (S. C.),
261
TAKING BY DOWER OR CURTESY.
[§ 227
and Great Britain were held to provide only for titles existing
at the time of the making of the treaties and not to titles subse-
quently acquired, and hence British subjects born before the
Revolution were held to be equally incapable with those born
after of inheriting or transmitting the inheritance of lands.84
Aliens, however, could inherit real estate under the laws of Mex-
ico, which were in force in California.85 But for the purpose of
preventing an escheat, and with the object of effectuating the
wishes of a testator, a court of equity will, if necessary, consider
land as money, in a case where a testator, who is a trustee, has di-
rected the land to be sold, and will direct that the proceeds be
given to the cestui que trust.8Q
§ 227. Taking by dower or curtesy. — The disability of the
alien to inherit extends to taking by dower or curtesy ;87 but this
rule has frequently been altered by statutes removing the dis-
ability of alienage.88 Such statutes, however, operate only in
cases arising in the future, and are not retroactive.89
356; Descottes v. Talvande, 2 McMull.
(S. C.) 300; Vaux v. Nesbit, 1 Mc-
Cord Eq. (S. C.) 352; Groves v. Gor-
don, 3 Brev. (S. C.) 245; Trezevant
v. Osborn, 3 Brev. (S. C.) 29; Baker
v. Shy, 9 Heisk. (Tenn.) 85; Cryer
v. Andrews, 11 Tex. 170; McGahan v.
Baylor, 32 Tex. 789; Lacoste v. Odam,
26 Tex. 458; Yates v. lams, 10
Tex. 168; Pettus v. Dawson, 82 Tex.
18, 17 S. W. 714; Williams v. Ben-
nett, 1 Tex. Civ. App. 498, 20 S. W.
856; Eead v. Bead, 5 Call (Va.), 160;
Barzizas v. Hopkins, 2 Eand. (Va.)
276; Doe v. Clarke, 1 U. C. Q. B. 37;
Doe v. Jones, 4 Term Rep. 300; Doe
v. Acklam, 2 Barn. & C. 779.
84 Bright 's Lessee v. Rochester, 7
Wheat. (U. S.) 535, 5 L. ed. 516.
85 McNeil v. Polk, 57 Cal. 323;
Ramires v. Kent, 2 Cal. 560; People
v. Folsom, 5 Cal. 373; De Merle v.
Mathews, 26 Cal. 477; Racouillat v.
Sansevain, 32 Cal. 376.
86 Taylor v. Benham, 5 How. (U.
S.) 233, 12 L. ed. 130.
87 Foss v. Crisp, 20 Pick. (Mass.)
121; Sistare v. Sistare, 2 Root
(Conn.), 468; Greer v. Sankston, 26
How. Pr. (N. Y.) 471; Sutliff v.
.borgey, 1 Cow. (N. Y.) 89; Currin
v. Finn, 3 Denio (N. Y.), 229; Con-
nolly v. Smith, 21 Wend. (N. Y.)
59; White v. White, 2 Met. (Ky.)
185; Moore v. Tisdale, 5 B. Mon.
(Ky.) 352; Potter v. Titcomb, 22
Me. 300; Mussey v. Pierre, 24 Me.
559; Buchanan v. Deshon, 1 Har. &
G. (Md.) 280; Copeland v. Sauls, 46
N. C. 70; Paul v. Ward, 15 N. C.
247; Ondis v. Banta, 7 Kulp (Pa.),
390; Reese v. Waters, 4 Watts & S.
(Pa.) 145; Quinn v. Ladd, 37 Or.
261, 59 Pac. 457; Bennett v. Harms,
51 Wis. 251, 81 N. W. 222.
88 Mick v. Mick, 10 Wend. (N. Y.)
379; Burton v. Burton, 1 Abb. Dec.
(N. Y.) 271; Burton v. Burton, 26
How. Pr. (N. Y.) 474; Greer v.
Sankston, 26 How. Pr. (N. Y.) 471;
Priest v. Cummings, 16 Wend. (N.
Y.) 617; Stokes v. O'Fallon, 2 Mo.
32; Emmett v. Emmett, 14 Lea
(Tenn.), 369.
89 Priest v. Cummings, 20 Wend.
(N. Y.) 338.
§ 227] TREATIES, STATE CONSTITUTIONS AND STATUTES. 262
The Constitution of California provides that "all estates of
deceased persons who may have died without leaving a will or
heir .... shall be and remain a perpetual fund, " to be inviolably
appropriated to the support of common schools throughout the
state.90 The supreme court of that state, however, held that
the Constitution did not prevent the legislature from giving to
nonresident foreigners the same rights relative to the acquisition,
transmission and inheritance of property as were guaranteed by
the Constitution to resident foreigners. This provision of the
Constitution was held not to limit the power of the legislature to
declare that aliens may be heirs.91
Under the statute of Virginia, children who are born in that
state have the capacity of inheriting through living alien an-
cestors, and, consequently, children born of alien parents who re-
side in that state are entitled to inherit real estate, and likewise
children born in another state may inherit in Virginia.92 Un-
less, however, there is some prohibition, the general rule is that
an alien friend may enforce his rights to the same extent as a cit-
izen, and may maintain actions of ejectment or partition.93 The
objection that an alien is incapacitated from maintaining an ac-
tion should be raised by plea in abatement.94
90 Cal. Const., art. IX, sec. 4. Scanlan v. Wright, 13 Pick. 523, 25
91 State v. Smith, 70 Cal. 153, 12 Am. Dec. 344; Cryer v. Andrews, 11
Pac. 121. Tex. 170; Schultze v. Schultze, 144
92 Hannon v. Hounihan, 85 Va. 429, 111. 290, 36 Am. St. Kep. 432, 33 N.
12 S. E. 157. E. 201, 19 L. R. A. 90; Scharpf v.
93 Bonaparte v. Camden etc. R. Co., Schmidt, 172 111. 255, 50 N. E. 182.
Baldw. (U. S.) 205, 3 Fed. Gas. No. A suit may be maintained by an
1617; Fisher v. Harnden, 1 Paine alien mortgagee to foreclose his mort-
(TJ. S.), 55, 9 Fed. Gas. No. 4819; gage. Hughes v. Edwards, 9 Wheat.
Shanks v. Dupont, 3 Pet. (U. S.) 242, (U. S.) 489, 6 L. ed. 142; Silver Lake
7 L. ed. 666; Hauenstein v. Lynham, Bank v. North, 4 Johns. Ch. (N. Y.)
100 U. S. 483, 25 L. ed. 628; Jones 370; Richmond v. Milne, 17 La. 312,
v. McMasters, 20 How. (U. S.) 8, 15 36 Am. Dec. 613. But see Siemssen
L. ed. 805; Den v. Brown, 7 N. J. v. Bofer, 6 Cal. 250; Norris v. Hoyt,
L. 305; Peck v. Young, 26 Wend. (N. 18 Cal. 217; Barges v. Hogg, 2 N.
Y.) 613; Young v. Peck, 21 Wend. C. 485; Barrett v. Kelly, 31 Tex.
(N. Y.) 389; Utassy v. Giedinghagen, 476; Hardy v. De Leon, 5 Tex. 211;
132 Mo. 53, 33 S. W. 444; Farley Guyer v. Smith, 22 Md. 239, 85 Am.
v. Shippen, Wythe (Va.), 254; White Dec. 650.
v. Sabariego, 23 Tex. 243; Ortiz v. M Rateau v. Bernard, 3 Blatchf.
De Benavides, 61 Tex. 60; Nolan v. (U. S.) 244, 20 Fed. Gas. No. 11,579;
Command, 11 N. Y. Civ. Proc. 295; The Bee, 1 Ware (U. S.), 336, 3
263
ALIEN HAS NO INHERITABLE BLOOD. [§§ 228, 229
§ 228. Alien has no inheritable blood. — Not only is an alien
incapable at common law of inheriting real estate, but he is
also incapable of transmitting an interest to a citizen, not under
the disability of alienage, as the alien possesses no inheritable
blood. An incapacity to transmit land to heirs is one of the
disabilities of alienage.95 On this principle neither dower nor
curtesy in the real estate can be allowed to the wife or husband of
an alien, as the alien has no power to transmit real estate by
descent.96
§ 229. Right of alien to take personal property. — The dis-
ability that attaches to an alien and that at common law in-
capacitates him from inheriting real estate does not exist where
personal property is concerned. He has the same power to take
and hold personal property as a citizen.97 Nonresident stock-
holders of a corporation acquire and hold their shares of stock
with all the rights and privileges which pertain to them in the
hands of citizens. If no other qualifications for directors are
Fed. Cas. No. 1219; McNair v. Toler,
21 Minn. 175; Lee v. Salinas, 15 Tex.
495; Shivers v. Wilson, 5 Har. & J.
(Md.) 130, 9 Am. Dec. 497; Martin
v. Woods, 9 Mass. 377; Burnside v.
Matthews, 54 N. Y. 78; Educational
Society v. Varney, 54 N. H. 376.
95 Blight v. Rochester, 7 Wheat.
(U. S.) 535, 5 L. ed. 516; Eubeck
v. Gardner, 7 Watts (Pa), 455;
Jones v. Minogue, 29 Ark. 637; Doe
v. Lazenby, Smith (Ind.), 203, 1
Ind. 234; Smith v. Zaner, 4 Ala. 99;
De Graff v. Went. 164 111. 485, 45
N. E. 1075; Purczell v. Smidt, 21
Iowa, 540; Richmond v. Milne, 17
La. 312, 36 Am. Dec. 613; Stevenson
v. Dunlap, 7 T. B. Mon. (Ky.) 134;
Slater v. Nason, 15 Pick. (Mass.)
345; Farrar v. Dean, 24 Mo. 16;
Hinkle v. Shadden, 2 Swan (Tenn.),
46; De Wolf v. Middleton, 18 R. I.
814, 26 Atl. 44, 31 Atl. 271, 31 L.
R. A. 146; Sands v. Lynham, 27
Gratt. (Va.) 291, 21 Am. Rep. 348.
96 Coxe v. Gulick, 10 N. J. L. 328;
Mobile Cong. Church v. Morris, 8 Ala.
182.
97 Meier v. Lee, 106 Iowa, 303, 76
N. W. 712; Greenheld v. Morrison,
21 Iowa, 538; E vans' Appeal, 51
Conn. 435; Crosgrove v. Crosgrove, 69
Conn. 416, 38 Atl. 219; Kerr v.
White, 52 Ga. 362; Ludlow v. Van
Ness, 8 Bosw. (N. Y.) 178; Rich-
mond v. Milne, 17 La. 312, 36 Am.
Dec. 613; Greenia v. Greenia, 14 Mo.
526; Harney v. Donohoe, 97 Mo. 141,
10 S. W. 191; Bradwell v. Weeks, 1
Johns. Ch. (N. Y.) 206; Beck v.
McGillis, 9 Barb. (N. Y.) 35; Meak-
ings v. Cromwell, 5 N. Y. 136;
Corrie's Case, 2 Bland (Md.), 488;
Megrath v. Robertson, 1 Desaus. (S.
C.) 445; Polk v. Ralston, 2 Humph.
(Tenn.) 537; Commonwealth v. Det-
willer, 131 Pa. 614, 18 Atl. 990, 7 L.
R. A. 357.
§ 230] TREATIES, STATE CONSTITUTIONS AND STATUTES. 264
required than ownership of stock, such aliens may become di-
rectors.98
§ 230. Treaties removing disability of aliens to inherit. — All
laws of a state contrary to the provisions of a treaty are void.
A treaty may remove the disability of an alien to inherit, and it
is undoubted that treaties conferring upon aliens the right
to inherit are within the scope of the treaty-making power of
the United States. "That the treaty power of the United
States," said Mr. Justice Field, "extends to all proper subjects
of negotiation between our government and the governments of
other nations, is clear. It is also clear that the protection which
should be afforded to the citizens of one country owning prop-
erty in another, and the manner in which that property may be
transferred, devised or inherited, are fitting subjects for such
negotiation and of regulation by mutual stipulations between
the two countries. As commercial intercourse increases between
different countries the residence of citizens of one country within
the territory of the other naturally follows, and the removal of
their disability from alienage to hold, transfer and inherit prop-
erty in such cases tends to promote amicable relations. Such re-
moval has been within the present century the frequent subject
of treaty arrangement. The treaty power, as expressed in the
Constitution, is in terms unlimited except by those restraints
which are found in that instrument against the action of the
government or of its departments, and those arising from the
nature of the government itself and of that of the States. It
would not be contended that it extends so far as to authorize
what the Constitution forbids, or a change in the character of
the government or in that of one of the States, or a cession of
any portion of the territory of the latter, without its consent.
But with these exceptions, it is not perceived that there is any
limit to the questions which can be adjusted touching any matter
which is properly the subject of negotiation with a foreign coun-
try."99
The court said that the article of the treaty in question in the
case just cited was not happily drawn, but that by its evident mean-
98 Commonwealth v. Detwiller, 131 258, 10 Sup. Ct. Rep. 295, 33 L. ed.
Pa. 614, 18 Atl. 990, 7 L. E. A. 357. 642. See, also, Bahuaud v. Bize, 105
M De Geofroy v. Eiggs, 133 U. S. Fed. 485.
265 TREATY ADMITTING OF TWO CONSTRUCTIONS. [§ 231
ing the disability of alienage was removed, and that citizens of
France could take land in the District of Columbia by descent from
citizens of the United States, notwithstanding the common law
which prevailed in the District excluded aliens from inheriting
lands from a citizen.100
§ 231. Treaty admitting of two constructions. — Where two
constructions may be placed upon a treaty, one restrictive as to
the rights that may be claimed under it, and the other liberal,
the liberal construction will be preferred. An alien died in Vir-
ginia, intestate and without children, owning at the time of his
death real property in that state. The escheator prosecuted an
inquisition for the forfeiture of the estate, recovered judgment,
and was about to sell, when certain heirs, citizens of Switzerland,
filed a petition in pursuance of the laws of Virginia, alleging
that they were the heirs at law of the deceased, and praying
that the proceeds of the sale of the property should be turned
over to them, but the state court was of the opinion that con-
ceding the fact of their heirship, they had no valid claim.
The treaty between the United States and the Swiss Confedera-
tion of November 25, 1850, provided, in article V, that as to
personal property, the fullest power to dispose of the same
should be given, and as to real estate provided: "The foregoing
provisions shall be applicable to real estate situate within the
States of the American Union, or within the cantons of the Swiss
Confederation, in which foreigners shall be entitled to hold or
inherit real estate. But in case real estate situated within the
territories of one of the contracting parties should fall to a
citizen of the other party, who, on account of his being an alien,
could not be permitted to hold such property in the State or in
the canton in which it may be situated, there shall be accorded
100 De Geofroy v. Eiggs, 133 U. S. remain in force, Frenchmen shall en-
258, 10 Sup. Ct. Eep. 295, 33 L. ed. joy the right of possessing personal
642. The seventh article of the con- and real property by the same title
vention between the United States and in the same manner as the citi-
and France concluded February 23, zens of the United States. They
1853, before the court in that case shall be free to dispose of it as they
for construction, provided: "In all may please, either gratuitously or
the States of the Union, whose ex- for value received, by donation,
isting laws permit it, so long and to testament or otherwise, just as those
the same extent as the said laws shall citizens themselves; and in no case
§§ 232, 233] TREATIES, STATE CONSTITUTIONS AND STATUTES. 266
to the said heir, .or other successor, such term as the laws of the
State, or the canton, will permit to sell such property; he shall
be at liberty at all times to withdraw and export the proceeds
thereof without difficulty, and without paying to the government
any other charges than those which, in a similar case, would be
paid by an inhabitant of the country in which the real estate
may be situated."
§ 232. Contention of State. — It was contended on behalf of
the state of Virginia that the state having fixed no time within
which the alien heir might sell the property and "withdraw and
export the proceeds thereof without difficulty," it could not be
done at all. Under this construction the entire provision would
become a nullity. Mr. Justice Swayne, however, delivering the
opinion of the court, said as to this contention: "The terms of the
limitation imply clearly that some time, and not that none, was
to be allowed. If it had been proposed to those who negotiated
the treaty to express in it the effect of this construction in plain
language, can it be doubted that it would have been promptly
rejected by both sides as a solecism and contrary to the intent
of the parties? Where a treaty admits of two constructions, one
restrictive as to the rights that may be claimed under it and the
other liberal, the latter is to be preferred."101
§ 233. Ruling of court. — The court held that the treaty was
within the treaty-making power conferred by the Constitution,
and it was the duty of the court to give it full effect. "If the
national government has not the power to do what is done by
such treaties, it cannot be done at all, for the states are expressly
shall they be subjected to taxes for ''In like manner, but with the
transfer, inheritance, or any others reservation of the ulterior right of
different from those paid by the lat- establishing reciprocity in regard to
ter, or to taxes which shall not be possession and inheritance, the govern-
equally imposed. ment of France accords to the citizens
"As to the States of the Union by of the United States the same rights
whose existing laws aliens are not within its territory in respect to real
permitted to hold real estate, the and personal property, and to in-
President engages to recommend to heritance, as are enjoyed there by its
them the passage of such laws as own citizens.'' (10 Stats. 996.)
may be necessary for the purpose of m Hauenstein v. Lynham, 100 U.
conferring this right. S. (10 Otto) 483, 25 L. ed. 628.
267 DECISIONS OF THE SUPREME COURT. [§ 234
forbidden to 'enter into any treaty, alliance or confedera-
tion.' " 102 The construction of treaties should be liberal so as
to effectuate the apparent intention of the parties to secure equality
and reciprocity between them.103
§ 234. Other decisions of supreme court of the United
States.— The ninth article of the treaty of 1794 between the
United States and Great Britain provided: "It is agreed that
British subjects who now hold lands in the territories of the
United States, and American citizens who now hold lands in the
dominions of his majesty, shall continue to hold them according
to the nature and tenure of their respective estates and titles
therein; and may grant, sell or devise the same to whom they
please, in like manner as if they were natives, and that neither
they nor their heirs or assigns shall, so far as respects the said
lands and the legal remedies incident thereto, be considered as
aliens. ' '
Where an alien was in complete, possession and seizure of land
which continued up to and after the making of this treaty, it
was held that as the treaty was the supreme law of the land,
it confirmed the title to him and his heirs and assigns, and pro-
tected him from any forfeiture by reason of alienage. Although
the state of Virginia, in which the lands were situated, once had
the power to have vested the estate completely, in itself or grantee,
by an inquest of office or equivalent proceeding, yet as it failed
to do so, its inchoate title and the derivative title of its grantee
became, through the action of the treaty, ineffectual and void.104
Under the treaty of 1778 between the United States and France,
the citizens of either country were permitted to hold lands in
the other. The abrogation of the treaty did not devest the title
to lands once vested in a French subject.105 "Where a treaty
is the law of the land, and as such affects the rights of the
parties litigant in court, that treaty as such binds their rights,
and is as much to be regarded by the court as an act of Con-
gress." On this principle it was held that a stipulation in a
102 Hauenstein v. Lynham, supra. Lessee, 7 Cranch (U. S.), 603, 3 L.
103 De Geofroy v. Kiggs, 133 U. S. ed. 453.
258, 10 Sup. Ct. Kep. 295, 33 L. ed. 105 Carneal v. Banks, 10 Wheat. (U.
642. S.) 181, 6 L. ed. 297.
104 Fairfax's Devisee v. Hunter's
§ 235] TREATIES, STATE CONSTITUTIONS AND STATUTES. 268
treaty that property shall be restored operated as an immedi-
ate restoration, and annulled a judgment of condemnation pre-
viously made.106
§ 235. Same subject. — A native of France, John Baptiste
Chirac, came to the United States in 1793, located in Maryland,
took in 1795 the oath of citizenship according to the form pre-
scribed by the laws of Maryland, and subsequently received a
conveyance in fee of land situated in that state. Some years
later he was naturalized in compliance with the laws of the
United States, and the following year died intestate, leaving no
legitimate relations except certain natives and residents of
France. The state of Maryland, on the assumption that the
lands were subject to escheat, conveyed them to the natural son
of the decedent, with a saving of the rights of all persons claim-
ing by devise or descent from the intestate. The French heirs,
aliens, brought an action in ejectment for the land and recovered
judgment. The point raised was that the estate of the French dece-
dent was in his lifetime escheatable, because it was acquired
before he became a citizen of the United States, the law of the
state of Maryland, according to which he took the oaths of citi-
zenship, having been virtually repealed by the Constitution of the
United States and the naturalization law enacted by Congress.
The statute of Maryland required that a French subject, who
would entitle himself under it to hold lands in fee, should be a
citizen according to the law which should be in force at the time
of the acquisition of the estate, otherwise he could only pur-
chase or hold for life or years. The decedent was not, according
to that law, a citizen when he purchased.
Mr. Chief Justice Marshall, delivering the opinion of the court,
said: "It is unnecessary to inquire into the consequences of this
state of things, because we are all of opinion that the treaty
between the United States and France, ratified in 1778, enabled
the subjects of France to hold lands in the United States. That
treaty declared that 'The subjects and inhabitants of the United
States, or any one of them, shall not be reputed aubains [that
is, aliens] in France.' 'They may by testament, donation or
otherwise, dispose of their goods, movable and immovable, in
favor of such persons as to them shall seem good; and their
106 United States v. The Peggy, 1 Cranch, 109, 2 L,. ed. 49.
269 DECISIONS OF THE SUPREME COURT. [ § 235
heirs, subjects of the said United States, whether residing in
France or elsewhere, may succeed them ab intestato, without being
obliged to obtain letters of naturalization. The subjects of the
most Christian king shall enjoy, on their part, in all the do-
minions of the said states, an entire and perfect reciprocity
relative to the stipulations contained in the present articles/
Upon every principle of fair construction, this article gave to
the subjects of France a right to purchase and hold lands in the
United States.
"It is unnecessary to inquire into the effect of this treaty un-
der the confederation, because before John Baptiste Chirac emi-
grated to the United States the confederation had yielded to
our present Constitution, and this treaty had become the su-
preme law of the land. The repeal of the treaty could not affect
the real estate acquired by John Baptiste Chirac, because he was
then a naturalized citizen, conformably to the act of Congress,
and no longer required the protection given by treaty."107 At
the time of the death of Chirac, he being seised in fee and his
heirs being subjects of France, there was between the two nations
no treaty in existence, and hence arose the question, Did the land
pass to his heirs or become escheatable? The law of Maryland
provided that if any subject of France, who should become a
citizen of Maryland, should die intestate, "the natural kindred
of such decedent, whether in France or elsewhere, shall inherit
his or her real estate, in like manner as if such decedent and his
kindred were the citizens of this state." For the purpose of
avoiding the effect of this claim in the act, it was contended that
it was passed for the sole purpose of enforcing the treaty, and
when the treaty was repealed, it was also repealed by implication.
The court did not agree with this contention, saying: "The
enactment of the law is positive, and its terms perpetual. Its
provisions are not made dependent on the treaty , and although
the peculiar state of things then existing might constitute the
principal motive for the law, the act remains in force from its
words, however that state of things may change." Another
treaty was passed between France and the United States, and
the court held that this treaty gave French subjects the rights
of citizens, so far as respects property, and dispensed with the
107 Chirac v. Lessee of Chirac, 2 Wheat. (U. S.) 259, 4 L. ed. 234.
§ 236] TREATIES, STATE CONSTITUTIONS AND STATUTES. 270
necessity of obtaining letters of naturalization, and by removing
the incapacity of alienage placed French subjects in the same
situation with respect to lands as if they had become citizens. 108
§ 236. Same subject— Treaties of 1783 and 1794.— The Revolu-
tion did not affect the capacity of British subjects or corporations
created by the Crown in this country to hold lands. The treaty
of peace of 1783 protected the property of British corporations
to the same extent as that of natural persons. The treaty of
1794 confirmed the title thus protected, so that no intermediate
legislative act or other proceeding for the defect of alienage
could forfeit it. Property rights vested under a treaty are not
devested by a termination of the treaty by war.109 But British
subjects who were born before the Revolution are as incapable
as those born afterward of inheriting or transmitting the inheri-
tance of lands, and the treaties of 1783 and 1794 provide only
for titles existing at the time of the execution of the treaties,
and not to titles subsequently acquired. Under these treaties
actual possession was not necessary to entitle a person to their
benefit, but the existence of title at the time was essential.110
Accordingly, where a British subject came to the United States
after the execution of the treaty of 1783 and before the signa-
ture of the treaty of 1794, and died, seised of lands, the title of
his heirs was not protected by the treaties.111 The titles of
British subjects to lands in the United States which would have
been liable to forfeiture by escheat for the defect of alienage
were completely protected by the sixth article of the treaty of
peace of 1783. It was not intended that this article should be
confined to confiscations jure beUi. By the ninth article of the
treaty of 1794, the titles of British subjects, whatever such titles
may be, are given the same validity as if the parties were citi-
zens. But this article did not intend to include any other persons
than those who were American citizens or British subjects.112
108 Chirac v. Lessee of Chirac, 2 Edwards, 9 Wheat. (U. S.) 489, 6 L.
Wheat. (U. S.) 259, 4 L. ed. 234. ed. 142.
109 Society etc. v. Town of New m Bright 's Lessee v. Eochester, 7
Haven, 8 Wheat. (U. S.) 464, 5 L. Wheat. 535, 5 L. ed. 516.
ed. 662. "2 Orr v. Hodgson, 4 Wheat. (U.
110 Bright 'B Lessee v. Kochester, 7 S.) 453, 4 L. ed. 613.
Wheat. 535, 5 L. ed. 516; Hughes v.
271 VIEWS OF EXECUTIVE DEPARTMENT. [ § 237
Yet under the ninth article of the treaty of 1794 the parties
in an action of ejectment must show that the title to the land
was in them or their ancestors at the time when the treaty was
made.113 The treaty of 1783 operated upon the condition of
affairs existing at that period, and all persons who then adhered
to the American states were, whether natives or otherwise, vir-
tually absolved from all allegiance to the British crown. All
those, on the other hand, who then adhered to the British crown
were considered subjects of that crown. The marriage of an
American woman with a British officer did not change her alle-
giance to her state, as marriage with an alien, whether friend
or enemy, creates no dissolution of the native allegiance of the
wife, but her subsequent removal with her husband operated as
a virtual dissolution of her allegiance, and established her future
allegiance to the British crown by the treaty of 1783.114 The
title of an alien mortgagee is protected by the treaty. But he
would have this right independently of the treaty, as his demand
is merely a personal one ; the debt being the principal and the
land an incident.115 The title that a British-born subject might
acquire during the Revolution was defeasible, but after the treaty
became completely protected.116
The treaty with France supersedes the Constitution and stat-
utes of Nebraska prohibiting nonresident aliens from acquiring
real estate by inheritance or otherwise.117
§ 237. Expression of executive department of government. —
At various times the question of the extent to which treaties
would supersede state laws relative to the succession of estates
has been considered by the officers of the executive department
of the government. In 1857 Mr. Gushing, while acting as attor-
ney general, speaking of the treaty of 1828 with Prussia, which
provided for the disposition of personal and real estate in each
113 Harden v. Fisher, 1 Wheat. (U. Heirs v. Kibbe, 14 Pet. 353, 10 L.
S.) 300, 4 L. ed. 96. ed. 490, involving title to a lot of
114 Shanks v. Dupont, 3 Pet. (U. ground in the city of Mobile, Mr.
S.) 242, 7 L. ed. 666. Justice Baldwin, in a concurring
115 Hughes v. Edwards, 9 Wheat. opinion, reviews various cases in
(U. S.) 489, 6 L. ed. 142. which rights secured by treaties have
116 Craig v. Eadford, 3 Wheat. 594, been enforced.
4 L. ed. 467. In Lessee of Pollard's m Bahuaud v. Bize, 105 Fed. 485.
§ 237] TREATIES, STATE CONSTITUTIONS AND STATUTES. 272
country by the citizens of the other, declared that it was "a
stipulation of treaty constitutional in substance and form ; which,
as such, is the supreme law of the land , and which abrogates any
incompatible law of either of the States. ' ' 118
Mr. Livingston, Secretary of State, in a note to Mr. de Sacken,
Russian charge, dated June 13, 1831, stated: "By the Federal
Constitution, the several states retained all the attributes of
sovereignty which were not granted to the general gevernment.
The right of regulating successions in relation to the subject
in question is not among those conceded rights; consequently
it was reserved to, and is still vested in, the several states. But
by the same Constitution it is provided that treaties made under
the authority of the general government shall be the supreme
law of the land, anything in the constitution or laws of a state
to the contrary notwithstanding. This very brief exposition
shows at once the cause of the want of comity in the laws of
the United States to which you advert, and indicates the remedy
which a treaty between the nations would effectually apply. ' ' 119
Mr. Fish, Secretary of State in 1874, in a note to Aristarchi Bey,
explained that "the estates of decedents are administered upon
and settled in the United States under the laws of the state of
which the decedent was a resident at the time of his death, and
on this account, in the absence of any treaty regulations on
the subject, interference in the disposition of such measures
as may be prescribed by the laws of the particular state in such
cases is not within the province of the federal authorities. ' ' 12°
In 1870, while the government was considering the negotiation
of a treaty with Baden regulating inheritances and marriages,
Mr. Fish, Secretary of State, owing to doubts that had been
raised by extreme constructionists as to the power under the
Constitution to conclude such a treaty, doubts which, he said,
he did not share, thought it wise, in advance of any negotiations,
to secure an expression of opinion from the Senate, through the
chairman of the Committee on Foreign Relations. This commit-
tee "advised the negotiations of a treaty" for the purposes speci-
fied, if possible.121
118 8 Op. Atty. Gen. 417. m 5 Moore Int. L. D. 178; Davis'
119 MS. Notes to Foreign Legations, Notes, Treaty Vol. 1776-1887, 1239;
IV, 396. MS. Inst. Prussia, XV, 121.
120 MS. Notes to Turkey, I, 115.
273 DISSENT FROM THESE VIEWS. [§§ 238, 239
§ 238. Dissent from these views. — Mr. Bayard, while admit-
ting that treaties removing disabilities had been held to be valid,
stated: "Were the question whether a treaty provision which
gives to aliens rights to real estate in the states to come up now
for the first time, grave doubts might be entertained as to how
far such a treaty would be constitutional. A treaty is, it is
true, the supreme law of the land, but it is nevertheless only a
law imposed by the federal government, and subject to all the
limitations of other laws imposed by the same authority. "While
internationally binding the United States to the other con-
tracting powers, it may be municipally inoperative, because it
deals with matters in the states as to which the federal govern-
ment has no right to deal. That a treaty, however, can give
to aliens such rights has been repeatedly affirmed by the supreme
court of the United States ; 122 and consequently, however much
hesitation there might be as to advising a new treaty containing
such provisions, it is not open to this Department to deny that
the treaties now in existence giving rights of this class to aliens
may, in their municipal relations, be regarded as operative in
the states."123
§ 239. In California. — In California at an early day a statute
was passed requiring foreigners to procure a license for the privi-
lege of mining in the state, and prohibiting all foreigners who
had not obtained such a license from working the mines. A
proceeding in the nature of a quo warranto was instituted by
the attorney general to procure the opinion of the court upon
the validity of the law. Among other grounds urged was that
the act was in conflict with treaties with foreign nations, and
with the treaty of Queretaro in particular. The court held that
the states possessed the inherent power of taxation, and that
its limitation and extent must, with respect to subject matter,
persons, amounts and times of payment, reside in the discretion
of the government of each state, and that if it saw fit to impose the
122 Citing Chirac v. Chirac, 2 Wheat. to Mr. Miller, June' 15, 1886, 160
259, 4 L. ed. 234; Carneal v. Banks, MS. Dom. Let. 481; 5 Moore Int. L.
10 Wheat. 181, 6 L. ed. 297; Hauen- D. 179. See as a similar opinion ex-
stein v. Lynham, 100 U. S. 483, 25 L. pressed by Attorney General Wirt, in
ed. 628. 1819, 1 Op. Atty. Gen. 275.
123 Mr. Bayard, Secretary of State,
Treaties — 18
239] TREATIES, STATE CONSTITUTIONS AND STATUTES.
274
burden of taxation upon a portion of the persons within the
sphere of its jurisdiction, and specially to exempt others, its
legislation, though it might be subject to the charge of being
unequal and unjust, would not infringe upon any principle of
the Constitution of the United States. As to the objection that
the act was in violation of treaties with foreign powers, the
court said that it was a sufficient answer to this general objection
that the complaint did not state the nationality of any person
from whom it was sought to collect the tax, but waiving this
point, the court held that the power of taxation over foreigners
could not be taken away by Congress or by treaties with foreign na-
tions. 124
124 People v. Naglee, 1 Cal. 249, 52
Am. Dec. 312. Said the court : ' ' But
it is contended that the Act of the
Legislature is in violation of treaties
of the United States with foreign
powers. A sufficient answer to this
general objection is, that the com-
plaint does not set forth the nation-
ality of any person upon whom the
respondent is alleged to have exercised
the functions of his office. It charges
that he 'has exacted the sum of
twenty dollars each from sundry for-
eigners in the County of San Fran-
cisco for licenses to mine' — without
particularizing whether such foreign-
ers were citizens of a nation with
which the United States have any
treaty relations. It does not state
whether they are Mexicans, Chilenos,
Englishmen, Frenchmen, Sandwich
Islanders or Chinese; and the Court
cannot, upon this demurrer, determine
whether any treaty has been violated
by the respondent. This difficulty
alone would, upon this branch of the
plaintiff's argument, be a serious ob-
jection to his case; inasmuch as it
may be more satisfactory to have the
whole matter, so far as this Court is
concerned, disposed of in all points
upon the merits, rather than upon
inadvertences which might be supplied.
or corrected in a subsequent litigation,
we shall proceed to examine this posi-
tion of the plaintiff's counsel. He
insists that the Act is invalid because
it is opposed generally to treaties of
the United States with foreign powers,
and particularly to the treaty of
Queretaro.
"First, as to treaties generally.
Perhaps the most satisfactory mode of
testing the validity of the law, under
this point, will be to take the treaty
with that power to whose subjects as
extensive privileges are granted by
our country as to those of any other
nation. We will, therefore, consider
the case as if it involved our treaty
relations with Great Britain, and un-
der the supposition that a subject of
the Queen of Great Britain was the
person from whom the sum of twenty
dollars had been exacted. By the 14th
Article of the Treaty of 1794 (known
as Jay's Treaty), which was sub-
stantially renewed by Article 1 of
the Treaty of 1815, the subjects of
the King of Great Britain, coming
from his majesty's territories in
Europe, had granted to them liberty
freely and securely, and without hin-
drance or molestation, to come with
their ships and cargoes, to the lands,
countries, cities, ports, places and
CONSTITUTIONALITY OP STATUTES.
240
§ 240. Constitutionality of statutes. — In a later case in Cali-
fornia, an act levying on each person of the Mongolian race
residing in the state, except such as should take out licenses to
rivers within our territories, and enter
the same, to resort there, to remain
and reside there, without limitation
of time; and reciprocal liberty was
granted to the people of the United
States in his majesty's European ter-
ritories; but subject always, as re-
spects this article, to the laws and
statutes of the two countries respec-
tively. By this treaty, our inhabitants,
whilst in the British dominions were
to abide by the laws of Great Britain;
and the subjects and inhabitants of
that country, when in our territories,
were to abide by the laws of the
United States and by the laws of the
respective States where they might be.
The only question, then, under this
treaty is, whether the Act of the
Legislature falls within the scope of
the powers of a sovereign nation, and,
at the same time, is not included in
the category of powers granted by the
States to the General Government;
for, if it falls within the former, and
is excluded from the latter, then it
is one of the laws which the treaty
itself makes obligatory upon British
subjects. But we have seen that the
power of taxation, and the power of
prescribing the conditions upon which
aliens shall be permitted to reside in
a State, are attributes of a sovereign
nation, which have not, except in cer-
tain specified cases, of which the
present is not one, been given up to
the Federal Government. Our statute,
then, is one of the laws or statutes,
to which the treaty, by its own terms,
provides that the subjects of Great
Britain shall be subject. Chief Jus-
tice Taney, in speaking of this treaty
in Norris v. The City of Boston, and
Smith v. Turner (7 How. 472), 12 L.
ed. 724, uses the following language:
'The permission there mutually given
to reside and hire houses and ware-
houses and to trade and traffic, is in
express terms made subject to the
law of the two countries respectively.
Now the privileges here given within
the several States are all regulated
by State laws, and the reference to
the laws of this country necessarily
applied to them, and subjects the
foreigner to their decision and con-
trol. '
' ' The Act, then, is not repugnant
to that Treaty. But even if the pro-
visions of the statute did clash with
the stipulations of that, or of any
other treaty, the conclusion is not
deducible that the treaty must, there-
fore, stand, and the State law give
way. The question in such case would
not be solely what is provided for
by the treaty, but whether the State
retained the power to enact the con-
tested law, or had given up that
power, to the General Government.
If the State retains the power, then
the President and Senate cannot take
it away by a treaty. A treaty is
supreme only when it is made in pur-
suance of that authority which has
been conferred upon the treaty-mak-
ing Department, and in relation to
those subjects the jurisdiction over
which has been exclusively entrusted
to Congress.v When it transcends these1
limits, like an Act of Congress which
transcends the constitutional authority
of that body, it cannot supersede a
State law which enforces or exercises
any power of the State not granted
away by the Constitution. To hold
§ 240] TREATIES, STATE CONSTITUTIONS AND STATUTES.
276
work in the mines or to prosecute some kind of business, a monthly
tax, was held to be unconstitutional, because it was in violation
of the provision of the Constitution of the United States giving
any other doctrine than this, would,
if carried out into its ultimate con-
sequences, sanction the supremacy of
a treaty which should entirely exempt
foreigners from taxation by the re-
spective States, or which should even
undertake to cede away a part, or the
whole of the acknowledged territory
of one of the States to a foreign
nation. In the License Cases (5 How.
603, 12 L. ed. 300) Mr. Justice Dan-
iels, speaking of the provisions of the
Constitution in relation to treaties,
holds the following language: 'This
provision of the Constitution, it is to
be feared, is sometimes expounded
without those qualifications which the
character of the parties to this in-
strument, and its adaptation to the
purposes for which it was created,
necessarily imply. Every power dele-
gated to the Federal Government must
be expounded in coincidence with a
perfect right in the States to all that
they have not delegated; in coinci-
dence, too, with the possession of
every power and right necessary for
their existence and preservation; for
it is impossible to believe, that these
ever were, either in intention or in
fact, ceded to the General Govern-
ment. Laws of the United States, in
order to be binding must be within the
legitimate powers vested by the Con-
stitution. Treaties, in order to be
valid, must be made within the scope
of the same power, for there can be
no authority of the United States,
save what is derived mediately or im-
mediately, and regularly, and legiti-
mately from the Constitution. A
treaty, no more than an ordinary stat-
ute, can arbitrarily cede away one
right of a State, or of any citizen of
a State.' It is not within the scope
of a constitutional treaty to interfere
with the reserved powers of taxation
and of control over foreigners, which
we have above discussed. No treaty,
within our knowledge, has attempted
to do it; and if such attempt should
be made, the stipulation would, we
apprehend, be neither recognized nor
enforced by the supreme tribunal of
the nation. 'If,' says Chief Justice
Taney (7 How. 466, 12 L. ed. 779),
'the United States have the power,
then any legislation by the State in
law, would also be void, and this
Court bound to disregard it.'
"And here let us remark that the
questions which we have been examin-
ing are questions of power, and not
questions of justice, or policy, or ex-
pediency. We hold that the power
of taxation over foreigners, as well as
of determining the conditions on
which they shall be permitted to enjoy
the protection of the State in a par-
ticular place or occupation, is, in the
language of the Supreme Court of
the United States, 'perfect and un-
diminished and indispensable/ and
that it cannot be taken away or im-
paired by Acts of Congress or Treaties
with foreign nations; and that the
justice and expediency of tax and
license laws must, so far as foreigners
are concerned whilst residing within
our territorial limits, be left to the
discretion of the States respectively,
to be exercised as the wisdom of their
Legislatures shall dictate, subject only
to such restrictions as may be im-
posed by the organic laws of the sev-
eral States. ' ' People v. Naglee, 1
Cal. 245-248, 52 Am. Dec. 312.
277
CONSTITUTIONALITY OF STATUTES.
:§ 240
Congress power to regulate commerce with foreign nations.125
Mr. Justice Field, who afterward became an associate justice of
the supreme court of the United States, dissented, and stated that
he concurred fully in the opinion expressed in People v. Nag-
lee,126 as to the powers of the state to tax foreigners as a
class.127 It was, however, recognized at an early day that treaties
might remove the disability of aliens to inherit.128 It was con-
tended that this principle would permit the federal government
to control the internal policy of the states, but the court an-
swered that this was one of the results of the national com-
pact.129
125 Lin Sing v. Washburn, 20 Cal.
534.
126 1 Cal. 249, 52 Am. Dec. 312.
127 Lin Sing v. Washburn, 20 Cal.
534. That the constitutional pro-
vision that taxation shall be equal
and uniform throughout the state has
application only to direct taxation
upon property, see People v. Coleman,
4 Cal. 46, 52, 60 Am. Dec. 586, and
note j People v. McCreery, 34 Cal. 448,
450. As to the power of a state to
enact license laws, see note to People
v. Mayor of Brooklyn, 55 Am. Dec.
288; note to Ash v. People, 83 Am.
Dec. 742; note to Allentown v. Tele-
graph Co., 52 Am. St. Kep. 246. A
statute imposing a tax upon a foreign
corporation doing business in the state
does not violate the federal Constitu-
tion. Southern B. & L. Assn. v. Nor-
man, 98 Ky..294, 56 Am. St. Kep. 367,
32 S. W. 952, 31 L. B. A. 41. A state
has the power to impose upon cor-
porations of other states a tax for
the privilege of doing business, al-
though no equivalent tax is imposed
upon its domestic corporations. Com-
monwealth v. Melton, 12 B. Mon.
(Ky.) 212, 54 Am. Dec. 522; At-
torney General v. Bay State Min. Co.,
99 Mass. 148, 96 Am. Dec. 717. But
see as to taxing a foreign corpora-
tion in a different mode from do-
mestic corporations, Erie Ey. Co. v.
State, 31 N. J. L. 531, 86 Am. Dec.
226.
128 People v. Gerke, 5 Cal. 381.
129 People v. Gerke, 5 Cal. 381.
Mr. Justice Heydenfeldt said: "The
Attorney General, in support of the
information filed in this case, denies
the power of the Federal Govern-
ment to, make such a provision by
treaty, and the determination of this
case depends upon the solution of
that question. Cases have frequently
arisen where aliens have claimed to
inherit by virtue of treaty provisions
analogous to the one under considera-
tion, and in all of them, so far as
I have examined, the stipulations were
enforced in favor of the foreign
claimants. See Chirac v. Chirac, 2
Wheat. 259, 4 L. ed. 234, 4 Wheat.
453, 4 L. ed. 613, 8 Wheat. 464, 5 L.
ed. 662, 9 Wheat. 489, 6 L. ed. 142,
10 Wheat. 181, 6 L. ed. 297.
"But in none of these cases was
the question raised as to the power
of the Federal Government to make
the treaty. It has been the practice
of the Government from an early
period after the ratification of the
Constitution, and its power is now,
I believe, for the first time disputed.
1 1 The language which grants the
power to make treaties, contains no
240] TREATIES, STATE CONSTITUTIONS AND STATUTES.
278
Shortly afterward the supreme court of that state decided that
as a nonresident alien could not inherit land, he could not main-
tain ejectment, and that the treaty between the United States
words of limitation; it does not fol-
low that the power is unlimited. It
must be subject to the general rule,
that an instrument is to be construed
so as to reconcile and give meaning
and effect to all its parts. If it were
otherwise, the most important limita-
tion upon the powers of the Federal
Government would be ineffectual, and
the reserved rights of the States
would be subverted. The principle of
construction as applied, not only in
reference to the Constitution of the
United States, but particularly in the
relation of all the rest of it to the
treaty-making grant, was recognized
both by Mr. Jefferson and John
Adams, two leaders of opposite
Rchools of construction. See Jeffer-
son's Works, vol. Ill, p. 135; and
vol. VI, p. 560.
"It may, therefore, be assumed
that, aside from the limitations and
prohibitions of the Constitution upon
the powers of the Federal Govern-
ment, 'the power of treaty was given,
without restraining it to particular
objects, in as plenipotentiary a form
as held by any sovereign in any
other society.' This principle, as
broadly a» I have deemed proper to
lay it down, results from the form
and necessities of our Government,
as elicited by a general view of the
Federal compact. Before the com-
pact, the States had the power of
treaty making as potentially as any
power on earth; it extended to every
subject whatever. By the compact,
they expressly granted it to the Fed-
•eral Government in general terms,
and prohibited it to themselves.
"The General Government must,
therefore, hold it as fully as the
States held who granted it, with the
exceptions which necessarily flow from
a proper construction of the other
powers granted, and those prohibited
by the Constitution. The only ques-
tions, then, which can arise in the
consideration of the validity of a
treaty, are: First, Is it a proper sub-
ject of treaty according to interna-
tional law or the usage and practice
of civilized nations? Second, Is it
prohibited by any of the limitations
in the Constitution?
"Taking for illustration the pres-
ent subject of treaty, no one will deny
that, to the commercial States of the
Union, and indeed to the citizens of
any State who are engaged in foreign
commerce, a stipulation to remove the
disability of aliens to hold property
is of paramount importance or, at any
rate, it may be so considered by the
States, and demanded as a part of
their commercial polity.
' ' Now, as by the compact the States
are absolutely prohibited from mak-
ing treaties, if the General Govern-
ment has not the power, then we
must admit a lameness and incom-
pleteness in our whole system, which
renders us inferior to any other en-
lightened nation, in the power and
ability to advance the prosperity of
the people we govern.
' ' Mr. Calhoun, in his discourse on
the Constitution and Government of
the United States, has given to this
power a full consideration, and I can-
not doubt that the view which I have
taken is sustained by his reasoning.
According to his opinion, the follow-
ing may be classed as the limitations
on the treaty-making power: First,
it is limited strictly to questions inter
279
CONSTITUTIONALITY OF STATUTES.
[§ 240
and the Hanseatic towns had not enlarged the rights of natives
of the latter in this respect, because the treaty conferred upon
them only the right to dispose of land, which they were inca-
alios, 'all such clearly appertain to
it. ' Second. ' By all the provisions
of the Constitution which inhibit cer-
tain acts from being clone by the
Government or any of its depart-
ments. ' Third, ' By such provisions
of the Constitution as direct certain
acts to be done in a particular way,
and which prohibit the contrary. '
Fourth, ' It can enter into no stipu-
lation calculated to change the char-
acter 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 or the
objects for which it was formed.'
' ' Having stated these as the only
limitations, the author adds, 'Within
these limits all questions which may
arise between us and other powers,
be the object what it may, fall within
the limits of the treaty making power,
and may be adjusted by it. '
1 ' One of the arguments at the bar
against the extent of this power of
treaty is, that it permits the Federal
Government to control the internal
policy of the States, and, in the pres-
ent case, to alter materially the stat-
utes of distribution.
"If this was to the full extent
claimed, it might be a sufficient an-
swer to say, that it is one of the re-
sults of the compact, and, if the
grant be considered too improvident
for the safety of the States, the evil
can be remedied by the constitution
making power. I think, however, that
no such consequence follows as is in-
sisted. The statutes of distribution
are not altered or affected. Alienage
is the subject of the treaty. Its dis-
ability results from political reasons
which arose at an early period of the
history of civilization, and which the
enlightened advancement of modern
times, and changes in the political
and social conditions of nations, have
rendered without force or consequence.
The disability to succeed to property
is alone removed, the character of the
person is made politically to undergo
a change, and then the statute of dis-
tribution is left to its full effect, un-
altered and unimpaired in word or
sense. If there is one object more
than another which belongs to our
political relations, and which ought
to be the subject of treaty regula-
tions, it is the extension of this comity
which is so highly favored by the
liberal spirit of the age, and so con-
ducive in its tendency to the peace
and amity of nations. Even if the
effect of this power was to abrogate
to some extent the legislation of the
States, we have authority for admit-
ting it, if it does not exceed the lim-
itations which we have cited from
the work of Mr. Calhoun, and laid
down as the rule to which we yield
our assent.
"During the war of the Revolution,
the States had passed Acts of con-
fiscation; Acts against the collection
of debts due to the subjects of Great
Britain; and Acts for the punishment
of treason. By the treaty of peace,
the effects of these various Acts were
provided against; and as late as 1792,
long after the ratification of the
Constitution, Mr. Jefferson, in an-
swer to the complaint of the British
Minister, Mr. Hammond, distinctly
recognized the doctrine, that treaties
are the supreme law of the land, and
that State legislation must yield to
§ 240] TREATIES, STATE CONSTITUTIONS AND STATUTES.
280
pacitated from inheriting by reason of their alienage. Mr. Jus-
tice Murray, who delivered the opinion of the court, said that
while the court had affirmed the constitutionality of a similar
them; and he therein cites the Acts
of State Legislatures and the deci-
sions of State Judges, who all con-
form to the same opinion. See vol.
Ill, Jefferson's Works, 365.
"I see no danger which can result
from yielding to the Federal Govern-
ment the full extent of powers which
it may claim from the plain language,
intent, and meaning of the grant
under consideration. Upon some sub-
jects, the policy of a State Govern-
ment, as shown by her legislation, is
dependent upon the policy of foreign
governments, and would be readily
changed upon the principle of mutual
concession. This can only be effected
by the action of that branch of the
State sovereignty known as the Gen-
eral Government, and when effected,
the State policy must give way to
that adopted by the governmental
agent of her foreign relations.
"It results from these views, that
the treaty of 1828, with Prussia, is
valid, and that aliens, subjects of
Prussia, are protected by its provi-
sions. ' '
Mr. Justice Bryan said: "I agree
with my associate, that the doctrine
has been settled in the United States
Courts, in cases relating to analogous
treaties to the one in question, that
the Courts of the country should ex-
tend to aliens the full protection
which the treaty seeks to give them,
in the acquisition or distribution of
property.
' ' In Chirac v. Chirac, 2 Wheat. 259,
4 L. ed. 234, the treaty with France
of 1778, was passed upon, and it was
decided by the United States Court,
that it secured to the citizens and
subjects of either power, the privi-
lege of holding lands in the territory
of the other. This was reaffirmed in
Cavneac v. Banks, 10 Wheat. 189, 6
L. ed. 297. A similar provision of
the treaty with Great Britain of 1794,
was also sanctioned by the Supreme
Court of the United States, in Hughes
v. Edwards, 9 Wheat. 489, 6 L. ed.
142. So far as the authority of the
Federal Courts is concerned, they ap-
pear to have uniformly administered
the law upon the meaning given by
construction to the language of the
treaty, seeming never to have, in any
respect, doubted the power of the
General Government to provide by
treaty with a foreign power for the
mutual protection of the property be-
longing to the citizens or subjects of
each in the territory of the other.
The treaty-making power of the Fed-
eral Government must, from necessity,
be sufficiently ample so as to cover
all of the usual subjects of treaties
between different powers. If we were
to deny to the treaty-making power
of our government the exercise of
jurisdiction over the property of de-
ceased aliens, upon the ground of in-
terference with the course of descents,
or the laws of distribution of a State
where property may exist; by parity
of reasoning we should not make com-
mercial treaties with foreign nations;
because, it might be said, some of
their provisions would injure the busi-
ness of a portion of the citizens of
one of the States of the Union.
"If the treaty-making power which
resides in the Federal Government is
not sufficient to permit it to arrange
with a foreign nation the distribution
281 TREATY MAY REGULATE RIGHTS. [§§ 241, 242
treaty stipulation, he entertained doubts of the correctness of
the decision.130
§ 241. Rule recognized that treaty may regulate rights. — The
rule is definitely announced in California that the rights of aliens
to possess and enjoy property in the United States may be regu-
lated by treaty, and that all state legislation to the contrary must
yield to a treaty as the supreme law. The right to regulate the
tenure of real property within a state is primarily a state right,
and a state may permit aliens to take hold and dispose of prop-
erty, real and personal, to any extent that will not conflict with
the provisions of a treaty. While the common-law rule is that
an alien does not possess inheritable blood, the state may change
this rule, and remove the disability, if there is no paramount
law to prevent it. The fact that the treaty between the United
States and Great Britain is silent upon the subject matter of the
right of citizens of the latter country to inherit property within
the United States is not, in effect, a denial of that right, nor
can it in any manner affect the power of the state to confer the
right.131
§ 242. In Delaware. — That a treaty is paramount to a statute
was likewise declared in Delaware. The code of that state pro-
vides that it shall be no objection to the kindred, husband or
of an alien 'a property, then that laws in question. ' ' People v. Gerke,
power resides nowhere (since it is de- 5 Cal. 381, was cited in Blythe v.
nied to the States), and we must con- Hinckley, 127 Cal. 435, 59 Pac. 787;
fess our system of government so approved in Wunderle v. Wunderle,
weak and faulty, as to be incapable 144 111. 54, 33 N. E. 195, 19 L. E.
of extending to its citizens in foreign A. 84, Opel v. Shoup, 100 Iowa, 407,
lands that protection which is most 69 N. W. 560, 37 L. E. A. 583, and
common amongst a majority of mod- De Geofroy v. Eiggs, 133 U. S. 267, 10
ern civilized nations." People v. Sup. Ct. Eep. 295, 33 L. ed. 642;
Gerke & Clark, 5 Cal. 383. and also cited in Hauenstein v. Lyn-
In Forbes v. Scannell, 13 Cal. 242, ham, 100 U. S. 490, 25 L. ed. 628.
Mr. Justice Baldwin said (p. 282) : ™ Siemssen v. Bofer, 6 Cal. 252.
"In People v. Gerke (5 Cal. 381), 131 Blythe v. Hinckley, 127 Cal. 431,
this court in giving effect to the 59 Pac. 787. State laws in conflict
treaty with the kingdom of Prussia, with a treaty are not so much void
which had direct effect on property in as they are suspended and controlled
this state in opposition to its laws during the life of the treaty. Blythe
of descent, went further than is nee- v. Hinckley, supra,
essary to go to uphold the treaty and
§ 242] TREATIES, STATE CONSTITUTIONS AND STATUTES.
282
widow of any alien, of any citizen deceased, taking lands through
the intestate laws, that they are aliens, provided that at the
time of the intestate 's death they reside within the United States.
The code also declares that if any such kindred are aliens and
do not reside within the limits of the United States at the time
of the death of the intestate, they shall be passed as if they
were dead. The treaty with Great Britain, ratified July 28,
1900,132 provided that, if on the death of any person holding
real property within the territory of one of the contracting par-
ties, a citizen or subject, were it not for the disqualification by
the laws of the country in which such real property is situated,
would be entitled to take it, such citizen or subject shall be al-
lowed three years in which to sell the same. The code is in
violation of this treaty, which contemplates the removal of the
disqualification of alienage, and places the next of kin, though
aliens, on the same plane as if they were residents of the state.133
™ 31 Stats. 1939.
133 Dockstader v. Kershaw, 4 Penne.
(Del.) 398, S. C., sub nom. Doe v.
Koe, 55 Atl. 341. In that case the
defendant contended that the lan-
guage of the treaty was so obscure,
ambiguous and contradictory, as to
be incapable of any sensible inter-
pretation, and referring to this, the
court said : "It is almost inconceiv-
able that the language of a paper of
such grave importance as this treaty
between two great nations should be
clothed in language at once so loose
and careless. It reflects but little
credit upon the persons charged with
the duty of forming this treaty, and
suggests that some degree of com-
petency should hereafter be required
in such cases. Still, however, in ap-
plying the ordinary rules of inter-
pretation to the plain purposes and
scope of the treaty, it seems to us
that section 1 of the treaty contem-
plates the elimination of the disqual-
ification of alienage in the next of
kin, so far as it relates to the sub-
ject matter of this suit, and puts
the next of kin on the same footing
as if they were all residents of this
state at the time of the death of the
intestate. ' '
Article 1 of the treaty referred to
reads : ' ' Where, on the death of any
person holding real property (or prop-
erty not personal) within the terri-
tories of one of the contracting par-
ties, such real property would, by the
laws of the land, pass to a citizen
or subject of the other, were he not
disqualified by the laws of the coun-
try where such real property is situ-
ated, such citizen or subject shall be
allowed a term of three years in which
to sell the same, this term to be rea-
sonably prolonged if circumstances
render it necessary, and to withdraw
the proceeds thereof, without restraint
or interference, and exempt from any
succession, probate or administrative
duties or charges other than those
which may be imposed in like cases
upon the citizens or subjects of the
country from which such proceeds may
be drawn."
283 IN ILLINOIS. [§§ 243, 244
§ 243. In Illinois.— Under the Revised Statutes of Illinois of
1845 aliens residing in the state were rendered capable of taking
and transmitting; real estate to the same extent as if the aliens
were citizens of the United States, and it was provided that "it
shall be no objection to any persons having an interest in such
estate that they are not citizens of the United States, but all
such persons shall have the same rights and remedies, and in
all things be placed on the same footing, as natural-born citizens
and actual residents of the United States." In 1851, the stat-
ute was amended, by the omission of the words "residing in
this state," thus conferring upon all aliens, whether residing in
Illinois or not, the right to take and transmit lands by deed,
will or otherwise.134 In 1887 an act was passed restricting the
right of aliens to acquire and hold real and personal estate,
and providing that a "nonresident alien, firm of aliens, or
corporation organized under the laws of any foreign country
shall not be capable of acquiring title to or taking or holding
any lands or real estate in this state by descent, devise, purchase,
or otherwise, except that the heirs of aliens who have heretofore
acquired lands in this state under the laws thereof, and the
heirs of aliens who may acquire lands under the provisions of
this act, may take such lands by devise or descent, and hold
the same for the space of three years and no longer, if such
alien at the time of acquiring such lands is of the age of twenty-
one years, and if not twenty-one years of age, then for the
term of five years from the time of acquiring such lands ; and if,
at the end of the time herein limited, such lands so acquired by
such alien heirs have not become actual residents of this state,
the same shall revert and escheat to the state of Illinois the same
as the lands of other aliens under the provisions of this act."135
§ 244. Existence of treaty. — An owner of land in Illinois died
intestate, leaving among other heirs a brother and a sister, who
were, and always had been, residents of the grand duchy of Ba-
den, and subjects of the German Empire. They were not en-
titled to take any portion of the land by inheritance from their
deceased brother if the act last mentioned was a valid law. The
court stated that it is a general rule of the common law that
134 1 Starr & Curtis' Ann. Stats., c. 135 111. Laws, p. 5; 3 Starr & Cur-
6, p. 264. tis' Ann. Stats., c. 6, p. 19.
§ 245] TREATIES, STATE CONSTITUTIONS AND STATUTES. 284
the title to real property must be acquired and transmitted
according to the lex rei sitae, and that the right of aliens to hold
land within the limits of the several states is a matter of state
regulation, but "it is also true that the state law must give way
if it conflicts with any existing treaty between the government
of the United States and the Government of the country of which
such foreigner is a subject or citizen."136 While the court
recognized this rule, it declared that "the treaty which will sus-
pend or override the statute of a state must be a treaty between
the United States and the government of the particular country
of which the alien claiming to be relieved of the disability is a
citizen or subject. A treaty with some other country, of which
such alien is not a citizen or subject, cannot have the effect of
removing the disability complained of." The court then went
into the question whether a treaty actually existed, giving aliens
the right to inherit. It appeared that several treaties referred to
by the nonresident heirs contained a clause allowing nonresident
heirs a reasonable time to sell real estate and withdraw the pro-
ceeds, but there was no treaty with Baden containing a similar
clause. It was also contended that the treaty concluded on De-
cember 11, 1871, between the United States and the German Em-
pire, into which Baden had been incorporated, contained a stipula-
tion which should be construed so as to remove the disability
imposed upon the nonresident heirs. The court held, however,
that this last-named treaty could not be so construed, and on the
ground, solely, that there was no treaty in existence between the
United States and the grand duchy of Baden or the German Em-
pire, decided that the disabilities imposed by the statute upon
the nonresident aliens were not removed by any treaty stipula-
tions.137
§ 245. Statute not unconstitutional as special law. — It may be
observed, in passing, that the statute in question was held not
to be in violation of any constitutional provision against local or
special laws changing descent.138 While in the case just cited
136 Wunderle v. Wunderle, 144 111. convention concluded between Bavaria
40, 33 N. E. 195, 19 L. E. A. 84. and the United States on September
137 Wunderle v. Wunderle, 144 111. 12, 1853. In re Thomas, 12 Blatchf.
40, 33 N. E. 195, 19 L. E. A. 84. 370, Fed. Gas. No. 13,887.
The absorption of Bavaria into the 13S Wunderle v. Wunderle, 144 111.
German Empire did not abrogate the 40, 33 N. E. 195, 19 L. E. A. 84.
285 CONSTITUTION OF WORDS. [§ 246
nonresident aliens claiming to take lands by descent in Illinois
were held to be incapable of inheriting under the statute, because
there was no treaty between their country and ours allowing them
to acquire or hold lands, yet in another case the question was
presented, where a treaty existed between the United States and
the Hanseatic Republic of Bremen, of which the claimants were
citizens. In this case the court held that the treaty superseded
the statute, and that in accordance with its provisions the non-
resident alien heirs were entitled to sell the lands in Illinois which
they would inherit except for alienage, and to withdraw the pro-
ceeds at any time within three years from the death of the an-
cestor. The interest in the land that vested in the alien heirs by
the grant of the right during a term of years to sell the land and
withdraw the proceeds is a fee which may be terminated by a
failure to exercise the power within the time specified, and such
ownership of a terminable fee carries with it the right to a par-
tition.139
§ 246. Construction of words. — In a case in this state the court
was called upon to construe the word "biens" in a treaty written
in French, which in the English version appeared as " effects. "
Article 6 of the treaty of April 3, 1783, between the United States
and Sweden, as revised in article 17 of the treaty of July 4,
1827, provided that the subjects of the two contracting parties
might "dispose of their goods and effects" by donation or other-
139 Schultze v. Schultze, 144 111. 290, selves or others acting for them, and
36 Am. St. Kep. 432, 33 N. E. 201, dispose of the same at their will,
19 L. E. A. 20. Article 7 of the paying such dues only as the in-
treaty which was concluded between habitants of the country wherein such
the United States and the Hanseatic goods are shall be subject to pay in
Republic of Bremen on December 20, like cases; and if, in the case of real
1827, is as follows: "The citizens of estate, the said heirs would be pre-
each of the contracting parties shall vented from entering into the posses-
have power to dispose of their per- sion of the inheritance on account of
sonal goods within the jurisdiction their character of aliens, there shall
of the other by sale, donation, testa- be granted to them the term of three
ment, or otherwise; and their repre- years to dispose of the same as they
sentatives, being citizens of the other may think proper, and to withdraw
party, shall succeed to their said the proceeds without molestation on
personal goods, whether by testament the part of the government of the
or db intestato, and they may take respective states/'
possession thereof, either by them-
§ 246] TREATIES, STATE CONSTITUTIONS AND STATUTES.
286
wise. In the French draft of the treaty the word "effects" was
represented by the word "biens." This word in the civil law
includes both immovables and movables. The court decided that
this word, when construed with the words "heirs," "succession"
and "inheritances," comprehended real as well as personal prop-
erty, and, therefore, that an alien resident of Sweden might,
notwithstanding the statute forbidding it, inherit land from a
resident citizen of Illinois.140
w Adams v. Akerlun-d, 168 111. 632,
48 N. E. 454. On the point of con-
struction Mr. Justice Magruder, who
delivered the opinion of the court,
said : ' ' The French words, appearing
in the French copies of the treaty,
which correspond to the words 'goods
and effects, ' are ' fonds et biens. '
* ' Appellees claim that the French
word 'biens' means real as well as
personal property. They introduced a
witness upon the stand, who was a
native of France, and educated in
that country, to prove that such was
the meaning of the word. This tes-
timony, if it was not actually im-
proper, was not material. United
States v. Turner, 11 How. 663, 13
L. ed. 857. Bouvier, in his Law Dic-
tionary, defines the French word
'biens' to mean: 'Property of every
description, except estates of free-
hold and inheritance.' But this is
evidently the strict meaning which
it has as it is defined in the common-
law writers, because immediately after
this definition he adds these words:
'In the French law this term includes
all kinds of property, real and per-
sonal. Biens are divided into biens
muebles, movable property, and biens
immuebles, immovable property. ' It
would thus appear that the word, as
used in the original treaty, in the
French language, has a meaning in
the civil law, which includes both real
and personal property. In a note to
section 13 of Story on Conflict of
Laws (8th ed.), it is said: 'The
term ' ' biens ' ' in the sense of civil-
ians and continental jurists, compre-
hends not merely goods and chat-
tels, as in the common law, but real
estate. ' It is also said in a note to
section 146 of the same work: 'For-
eign jurists, commonly, in the term
' ' biens, ' ' include all sorts of prop-
erty, movable and immovable, in their
discussions on this subject. ' If,
therefore, we look to the treaty
as published in the French language,
the term there used includes real es-
tate as well as personal property.
' ' Consul for appellants contend
that the French expression 'fonds et
biens,' is correctly translated as
• goods and effects. ' It is insisted
that the English copy of the treaty
^ whether the treaty was originally
negotiated in English as well as
French, or whether an English trans'
lation was made of it after its orig-
inal negotiation) is an official prom-
ulgation of the treaty in the Eng-
lish fcmguage, in view of the fact
that it appears in publications and
editions of the United States Stat-
utes at Large, as authorized by Con-
gress. Whether this view is correct
or not, it may be admitted for the
purposes of this .case that the words
' goods and effects ' are a correct
translation of the French expression
' fonds et biens. ' The question then
arises as to the meaning of the word
'effects.' It cannot be doubted that
287
ALLOWANCE OF TIME TO SELL.
[§ 247
§ 247. Allowance of time to sell.— The treaty with Wiirttem-
berg of December, 1844, provided that when an alien shall in-
herit any real property he shall be allowed two years in which
in certain connections the word 'ef-
fects' sometimes refers to both real
and personal property. It is true
that as a general thing the word
' effects, ' when used in connection
with the word l goods, ' means per-
sonal property, and not real property.
But this is not its correct meaning
where a contrary intention . appears
from the terms of the instrument in
which the word occurs. The word
'effects' is 'a very general term,
used to denote whatever a man has
that can effect, produce, or bring
forth money by sale. ' Am. & Eng.
Ency. of Law, p. 174. Bouvier de-
fines the word ' effects ' as follows :
'Property or worldly substance. As
thus used it denotes property in a
more extensive sense than goods. 2
Bl. Comm. 284. • Indeed, the word
may be used to embrace every kind
of property, real and personal, in- -
eluding things in action.' If the ex-
pression here, instead of being 'goods
and effects' was ' goods and other
effects,' we should be inclined to ap-
ply the rule of construction that gen-
eral and specific words, which are
capable of an analogous meaning, be-
ing associated together, take color
rrom each other, so that the general
words are restricted to a sense analo-
gous to the less general. Misch v.
Russell, 136 111. 22, 26 N. E. 528, 12
L. E. A. 125; First Nat. Bank v.
Adam, 138 111. 483, 28 N. E. 955.
Thus, in the case of Bank v. Adam,
supra, where the words used were 'all
goods, chattels or other property,' it
was held that the general words 'or
other property' would be restricted to
a meaning analogous to the meaning
of the words 'goods and chattels,'
and consequently would not embrace
such property as fixtures or chattels
x-eal, partaking more of the nature
of realty than personalty, So, here,
if the expression were 'goods and
other effects,7 the words 'other ef-
fects' would be restricted to a mean-
ing analogous to the meaning of the
word 'goods,' and would not embrace
real property. But, as the word
'other' is not used, there is no oc-
casion for the application of the
maxim, ' ejusdem generis.' Even,
however, if this maxim were applica-
ble to the expression 'goods and ef-
fects,' standing alone, yet it is not
applicable to the word 'effects' as
here used, when considered in con-
nection with other expressions appear-
ing in article 6, as above quoted. In
interpreting wills, it is well settled
that the word 'effects' will be con-
strued as including land where it can
be collected from other parts of the
will that such was the testator's in-
tention. In other words, where the
context of a will shows that it was
the intention of the testator to dis-
pose of his realty, the courts have
held that the word 'effects' is suffi-
cient to include the real estate. 6 Am.
& Eng. Ency. of Law, pp. 176, 177;
Smyth v. Smyth, 8 Ch. Div. 561 ; Page,
v. Foust, 89 N". C. 447. This being
a proper rule of construction in the
case of wills, it is equally proper as
applied to public treaties.
' ' Where treaties concern the rights
of individuals, it is frequently neces-
sary for the courts to ascertain, by
construction, the meaning intended to
be conveyed by the terms used. Wil-
247]
TREATIES. STATE CONSTITUTIONS AND STATUTES.
288
to sell the same, "which time may be reasonably prolonged ac-
cording to the circumstances." It was held that the courts
should give effect to the words quoted, and should grant such
time as would be reasonable. Hence, where alien heirs to real
son v. Wall, 6 Wall. 83, 18 L. ed.
727; United States v. Kauscher, 119
U. S. 407, 7 Sup. Ct. Eep. 234, 30 L.
ed. 425; Head Money Cases, 112 II.
S. 580, 5 Sup. Ct. Rep. 247, 28 L.
ed. 798. In thus giving construction
to the language of treaties, the courts
will adopt the same general rules
which are applicable in the construc-
tion of statutes, contracts, and written
instruments generally, in order to ef-
fect the purpose and intention of the
makers. 26 Am. & Eng. Ency. of
Law, p. 555. Moreover, it is another
well-settled rule, laid down by the
supreme court of the United States,
that 'where a treaty admits of two
constructions — one restricted as to the
rights that may be claimed under it,
and the other liberal — the latter is to
be preferred.' Hauenstein v. Lyn-
ham, 100 U. S. 483, 25 L. ed. 628;
Schultze v. Schultze, 144 111. 290, 36
Am. St. Rep. 432, 33 N. E. 201, 19
(L. R. A. 20. When, therefore, we
consider the meaning of the words
'goods and effects' in connection with
the rest of article 6, as above quoted,
we find such expressions therein as the
following: 'Their heirs, in whatever
place they shall reside, shall receive
the succession even db intestato,' etc.,
and ' these inheritances .... shall be
exempted from all duty,' etc. The
words 'heirs,' 'succession' and 'in-
heritances, ' as here used, are very sig-
nificant words in determining the
meaning to be given to the word
'effects.' An heir is 'one who, upon
the death of another, acquires or suc-
ceeds to his estate by right of blood
and by operation of law; the person
who takes an estate of lands or tene-
ments by descent from another
In the Roman law and in the modern
civil law, ' ' haeres " or " heir, ' ' has a
more extended significance than in
the common law. The term is applied
to all persons entitled to succeed to
the estate of one deceased, whether
by act of the party or by operation
of law, and whether the property be
real or personal in its nature. ' 9 Am.
& Eng. Ency. of Law, p. 357. At
common law, chattels did not descend
by inheritance, except in the instances
in which they came under the descrip-
tion of ' heirlooms. ' Bouvier defines
the term 'inheritance' as follows: 'A
perpetuity in lands to a man and his
heirs; the right to succeed to the
estate of a person Vho dies intestate.
The term is applied to lands. The
property which is inherited is called
an ' ' inheritance. ' ' The term ' ' in-
heritance" includes not only lands
and tenements which have been ac-
quired by descent, but every fee sim-
ple or fee tail which a person has ac-
quired by purchase may be said to
be an inheritance, because the pur-
chaser 's heirs may inherit it. ' He
also says that in the civil law the
term means 'the succession to all the
rights of the deceased. It is of two
kinds — that which arises by testament,
when the testator gives his property
to a particular person; and that which
arises by operation of law, which is
called succession db intestato. ' ' In-
heritance' has also been defined to be
'an estate which descends or may
descend to the heir upon the death of
the ancestor. Estates of freehold are
289
ALLOWANCE OF TIME TO SELL.
[§ 247
estate showed that they were unable to learn the names of the
other heirs until proof of heirship was made in the probate court,
about two years after the death of the intestate, and showed
also that they had endeavored to obtain the assent of other
heirs to agree to a sale of the property, but were unsuccessful,
and that without such division they had been unable to sell, it
was decided that a sufficient showing had been made to entitle
the claimants to sell their interest, notwithstanding the lapse of
the two years mentioned in the treaty since the death of the
intestate.141
estates of inheritance, absolute or lim-
ited.' 2 Bl. Co mm. 104, 120; 10 Am.
& Eng. Ency. of Law, p. 777. The
word 'inheritance' in its usual legal
acceptation, applies to lands descend-
ed. In its popular acceptation it in-
cludes all the methods by which a
child or relation takes property from
another at his death, except by devise,
and includes as well succession as
descent. Horner v. Webster, 33 N. J.
L. 413. 'Succession,' in the civil
law, denotes the transmission of the
rights and obligations of a deceased
person to his heir or heirs. The word
' succession ' is often used synony-
mously with the word ' descent. '
Descent is hereditary succession to an
estate in realty. 'Descent' usually
applies to the devolution of real
estate. The word ' inheritance ' is
also often used synonymously with
'descent' and refers to the devolution
of real property. In its popular ac-
ceptation, however, the word 'inher-
itance' includes the devolution of both
real and personal property, and is co-
extensive in meaning with the word
'succession.' 24 Am. & Eng. Ency. of
Law, p. 345. Succession, in the civil
law, includes immovable as well as
movable estates. Thus, in article 6
of the treaty we find the words 'heirs'
and ' inheritances ' used. These words,
in their strict common-law significa-
Treaties — 19
tion, refer only to the descent or
devolution of real property; but in
their broader signification, they in-
clude both real and personal prop-
erty. We also find the word 'suc-
cession' used, which refers as well to
the descent of real as of personal
property. It is evident, therefore,
that the terms of the treaty were in-
tended to include real estate as well
as personalty, and that the word 'ef-
fects' was intended to have the
broader meaning which includes both
land and personalty. ' ' Adams v.
Akerlund, 168 111. 632, 48 N. E. 454.
141 Scharpff v. Schmidt, 172 111. 255,
50 N. E. 182. It was contended by
counsel that it could not be presumed
by the contracting parties to the
treaty that the time for a transfer by
an alien should be prolonged, except
by an act of the same department
of the government; that is to say, by
the legislative, which established the
limitation. The court disposed of the
contention of counsel by saying,
through Mr. Justice Carter, who de-
livered the opinion of the court:
"The meaning of counsel is not al-
together clear, but it is presumed that
their contention is that the two gov-
ernments making the treaty, and which
provided for a reasonable prolonga-
tion of the term (two years) accord-
ing to circumstances, intended that
§ 248] TREATIES, STATE CONSTITUTIONS AND STATUTES.
290
§ 248. In Iowa. — In Iowa the statute prohibited nonresident
aliens "from acquiring title to or taking or holding any lands
or real estate in this state by descent, devise or purchase," with
certain exceptions not necessary to be noticed. A nonresident
alien who sought to acquire an interest as heir in real estate in
Iowa was disqualified under the provisions of the statute men-
tioned. A treaty existed between the United States and Bavaria,
of which country the alien was a citizen, and the question was,
the determination as to what circum-
stances would require a prolongation
and would be a reasonable prolonga-
tion under such circumstances should
rest in the legislature of the state
where the lands should have their
location, for it was not, of course,
intended to be asserted that the legis-
lative department 'established the
limitations contained in the treaty.'
Nor do we think it would be reason-
able to claim that the treaty means
that the question of such reasonable
prolongation of time should in each
particular case be made the subject
of negotiation and treaty by the gov-
ernments making the treaty in the
first instance, nor do we understand
counsel to so contend; but they do
contend that, in the absence of any
prolongation of time by the legis-
lature, the limitation of two years
fixed by the treaty must govern, and
that when that time passed the ap-
pellants, being aliens, no longer had
any interests in the property. Counsel
do not point out any way in which
the general assembly could have pro-
longed the limitation of two years
upon the application of appellants.
It may well be doubted whether the
power to pass a special law on the
subject exists under the constitution,
and, if it does, it would be but a
precarious right guaranteed by this
treaty to make its enjoyment depend
on the action of the legislature, which
might not meet until the right was
barred. If it be said that the legis-
lature could have passed a general
law on the subject, conforming to the
treaty, we are unable to see what
additional force would thereby have
been given to the treaty. As it stands,
the treaty is the law of the land,
superior to any law which the legis-
lature could pass, and seems to be
as explicit as any general law could
be reasonably framed. It would be
but an idle ceremony for the legis-
lature to re-enact the treaty, and we
find nothing in the language of the
treaty itself which would seem to
make its application to any particular
case depend on the action of the legis-
lature. Like any other law, its con-
struction and application to particular
cases are questions for the courts.
The clause in controversy, 'which
term may be reasonably prolonged,
according to circumstances/ means
nothing more than that in cases where
the circumstances are such as to make
it reasonable that such aliens, in order
to preserve their rights, should have
further time, in addition to the term
of two years, in which to sell their
interest in the lands, such further time
as may be reasonable under the cir-
cumstances shall be allowed. Any
other construction would, for all prac-
tical purposes, render this provision
of the treaty nugatory, while, like any
other instrument, it should be con-
291 IN IOWA. [§ 248
What effect did the treaty have on the statute ? It was contended
that the states alone have the right to regulate, by legislation,
descents and conveyances of real estate within their limits, and
that the federal government had no power to interfere by a treaty
with the right of the state to legislate as to the descent of prop-
erty upon the death of its citizens. It was also urged that treaties
made without authority are invalid, and that as the treaty was
in conflict with the laws of Iowa, it had no force or effect. But
Mr. Justice Given, delivering the opinion of the court, responded :
"It may be conceded that the states alone have such power;
that they alone may declare to what kindred the estate of per-
sons dying intestate shall descend. It must also be conceded that
the federal government alone has power to treat with other gov-
ernments as to rights of the citizens of each within the territory
of the other. This treaty does not attempt to regulate descent
of real property in Iowa. It does not declare that, when a son
or daughter dies without issue, the estate shall go to the parents.
It is left to the state, and Iowa has so provided. This treaty
simply declares that, if that parent is disqualified by alienage,
as to the citizens of these two governments this disqualification
is removed. ' ' 142
strued to give it practical effect, of the judiciary when a case arises
rather than to make it ineffectual. between individuals (Wilson v. Wall,
The view we have taken is strength- 6 Wall. 83, 18 L. ed. 727)."
ened somewhat by the fifth article of 142 Opel v. Shoup, 100 Iowa, 407, 69
the treaty, which provided that 'if N. W. 560, 37 L. E. A. 583. The
any dispute should arise between dif- treaty referred to was concluded and
ferent claimants to the same inher- adopted between the United States
itance, they shall be decided, in the and Bavaria on January 21, 1845r
last resort, according to the laws and and the clauses bearing upon the
by the judges of the country where rights of alien to inherit land were
the property is situated. ' Then, again, the following :
the rule is, that 'where a treaty ad- "Article 1. Every kind of droit
mits of two constructions, one restric- d'aubaine, droit de retraite, and droit
tive as to the rights that may be de detraction or tax on emigration,
claimed under it, and the other lib- is hereby, and shall remain, abolished
eral, the latter is preferred' (Hauen- between the two contracting parties,
stein v. Lynham, 100 U. S. 483, 25 their states, citizens, and subjects,
L. ed. 628; Schultze v. Schultze, 144 respectively.
111. 290, 36 Am. St. Kep. 432, 33 N. "Article 2. Where, on the death
E. 201, 19 L. R. A. 20), and construe- of any person holding real property
tion of treaties is the peculiar province within the territories of one party,
§§ 249, 250] TREATIES, STATE CONSTITUTIONS AND STATUTES. 292
§ 249. Goods not including lands.— In a later case, the court
construed the treaty between Sweden and the United States con-
cluded in 1783. Article 6 of this treaty, under which the claim
of the alien was made, declared: "The subjects of the contracting
parties in the respective states may freely dispose of their goods
and effects, either by testament, donation, or otherwise in favor
of such persons as they think proper; and their heirs, in what-
ever place they shall reside, shall receive the succession even ab in-
testato, either in person or by their attorney, without having oc-
casion to take out letters of naturalization." The court said,
conceding that this treaty was in force — which matter the court
did not determine — it did not, in its opinion, apply to lands. The
court quoted the definition of "goods" from Webster and de-
cided that "goods and effects had never been held to include
real estate. ' ' 143
§ 250. Treaty contemplating one step of transmission. — In
another case in Iowa, the rule was recognized that a treaty pro-
viding that aliens may inherit land will control, although it is
in conflict with the laws of the state. It was contended in this
case that the treaty contemplated but one step of transmission,
and that the treaty was intended to apply only to persons resid-
es uch real property would, by the laws may take possession thereof, either by
of the land, descend on a citizen or themselves or by others acting for
subject of the other, were he not dis- them, and dispose of the same at
qualified by alienage, such citizen or their pleasure, paying such duties
subject shall be allowed a term of two only as the inhabitants of the country
years to sell the same, which term where the said property lies shall be
may be reasonably prolonged accord- liable to pay in like cases."
ing to circumstances, and to withdraw 143 Meier v. JLee, 106 Iowa, 303, 76
the proceeds thereof, without molesta- N. W. 712. The language of the
tion, and exempt from all duties of treaty construed by the court was as
detraction. follows: "The subjects of the con-
" Article 3. The citizens or sub- tracting parties may freely dispose of
jects of each of the contracting their goods and effects, either by
parties shall have power to dispose of testament, donation or otherwise, in
their (real and) personal property favor of such persons as they think
within the states of the other, by proper; and their heirs, in whatever
their heirs, legatees, and donees, being place they shall reside, shall receive
testament, donation, or otherwise; and the succession even ab intestate, either
citizens or subjects of the other con- in person or by their attorney without
tracting party, shall succeed to their having occasion to take out letters of
said (real and) personal property, and naturalization."
TREATY CONTEMPLATING ONE STEP OF TRANSMISSION. [§ 250
in^ in this country so far as land in this country is concerned.
The court held, however, that property devised to a citizen of the
foreign country with which the treaty was made descends on the
death of such citizen to his heirs, who were also subjects of such
foreign country.144
The citizens of Waldeck became the subjects of Prussia under
the terms of the treaty between the King of Prussia and the Prince
of Waldeck, and therefore are affected by the treaty between
the United States and Prussia providing for the rights of in-
heritance of the two countries.145
14 Doehrel v. Hillmer, 102 Iowa,
169, 71 N. W. 204. Under the laws
of Iowa nonresident aliens cannot ac-
quire land. Furenes v. Mickelson, 86
Iowa, 508, 53 N. W. 416; Burrow v.
Burrow, 98 Iowa, 400, 67 N. W. 287.
As to the construction of the treaty,
Mr. Justice Ladd, delivering the
opinion of the court, said: "But the
appellants contend that the treaty is
intended to apply only to persons
residing in this country, so far as
land in this country is concerned ;
further, that the treaty contemplates
but one step of transmission. It is
held in the case of Hauenstein v.
Lynham, 100 U. S. 483, 25 L. ed. 628,
that 'where a treaty admits of two
constructions, one restrictive as to the
rights that may be claimed under it,
and the other liberal, the latter is to
be preferred. ' The wording of the
article quoted from the treaty seems
.to preclude the construction contended
for. The evident purpose was to so
protect the citizens and subjects of
both countries in their property inter-
ests that alienage would not affect the
right of inheritance. The citizenship
or residence of the person upon the
death of whom real estate descends
is not mentioned. The property, and
not from whence it comes, is the im-
portant consideration. 'And where
upon the death of any person holding
real estate within the territories of
one party ' can only be given one in-
telligent construction — that of the
plain import of the language em-
ployed. By the terms of the treaty
considered in Schultze v. Schultze,
supra, relied upon by appellants, in-
heritance is expressly limited to the
heirs and devisees of one country from
subjects or citizens of the other.
In Opel v. Shoup, supra, this court
considered a treaty between the United
States and the King of Bavaria, a
part of the second article of which is
identical with that involved in this
case; and it was there held that real
property inherited by a subject of the
King of Bavaria from her daughter,
a citizen of this country, descended to
her (the mother's) heirs, who were
also subjects of the king. Clearly,
under the terms of the treaty with
the King of Prussia, alienage does not
affect the right of inheritance, when
the heir or devisee is a citizen or sub-
ject of the country of the decedent,
and this is not limited to one step in
transmission. ' ' Doehrel v. Hillmer et
ah, 102 Iowa, 169, 71 N. W. 205.
145 Wilcke v. Wilcke, 102 Iowa, 173,
71 N. W. 201. On this point Mr.
Justice Granger, delivering the opin-
ion of the court, said: "A more diffi-
cult question is whether the treaty
pleaded as existing between the
§ 251] TREATIES, STATE CONSTITUTIONS AND STATUTES.
294
§ 251. In Kentucky. — In Kentucky the court announced that
it was a well-known principle of the common law and also of
the law of that state that lands do not pass from or to an alien
by descent, but that upon the death of the person last seised with-
out heirs, who are capable of inheriting, the title vests in the com-
monwealth without office found. But the court said, in a case
United States and Prussia takes the
claimants, against the widow, out of
the provisions of our law prohibit-
ing nonresident aliens from acquir-
ing property in this state by descent.
No question is made as to the pro-
hibition in this case, unless such claim-
ants are relieved from the operation
of the law by the terms of the treaty
pleaded. Nor is there any question
but that, if the plaintiff and the other
appellees were subjects of the king
of Prussia at the decease of Adam
Wilcke, the treaty operates to relieve
them from the prohibitions of the
law. We are to determine, as a ques-
tion of fact, whether the province of
Waldeck is so far a part of the king-
dom of Prussia that citizens of Wal-
deck are subjects of the King of
Prussia, within the meaning of the
treaty between the United States and
Prussia. As the record is presented,
we are to determine this question in
the light of history, as it may be
aided by particular evidence intro-
duced. The basis for the claim that
its citizens are such subjects is a
treaty between Prussia and Waldeck
relative to the transfer of the admin-
istration of Waldeck to Prussia. The
articles of treaty appear in the rec-
ord, and they appear as made by 'his
majesty, the King of Prussia, and his
serene highness, the Prince of Wal-
deck ' • and it is expressed that the
parties are ' animated by the wish
of facilitating the entry of the prin-
cipalities of Waldeck and Pyrmont
into the North German Confedera-
tion.' The articles are some 12 in
number, from which it appears that
Prussia undertakes the international
administration of the principality of
Waldeck, exclusively, except in cer-
tain particulars, which seem to be
mainly of ecclesiastical and charitable
importance. While the administration
is to be in the name of the prince,
a governor is appointed by the king,
and placed at the head of the admin-
istration of the principality, and un-
dertakes 'the constitutional responsi-
bility of the government of the coun-
try.' Prussia is empowered to or-
ganize the judicial and administra-
tive authorities differently, according
to her judgment. Prussia is to re-
ceive the whole of the services of the
principality, and defray all expenses,
except some pertaining to ecclesiasti-
cal authority. All the state servants
are appointed by Prussia, are Prus-
sian subjects, and take the oath of
allegiance to the King. The repre-
sentations of the country abroad is
retained by the prince, but it is ex-
ercised under the responsibility of
the governor, who is appointed by
the King. It is to be said that the
authority reserved to the prince is of
slight importance, and practically di-
vorced from the temporal concerns
of government. The articles speak of
Waldeck both as a principality and a
state. The testimony as to the ap-
plication of the treaty to government
affairs shows, as to its temporal con-
cerns generally, that the province is
as much a part of the Prussian king-
295 LAPSE OF TIME PRECLUDING CLAIM. [§ 252
in which the right of aliens to inherit was involved, that the
ninth article of the treaty of 1794 between the United States and
Great Britain provided that British subjects holding lands in the
United States should continue to hold them, and that as to such
lands and the legal remedies incident thereto neither they nor
their heirs should be regarded as aliens. On the effect of the
treaty on the right of the alien to hold, the court said: "It has
been decided that the treaty protects the title, whatever it is,
and gives to it the same validity as if in the hands of a citizen. ' ' 146
§ 252. Lapse of time precluding claim. — In a case in this state
it was admitted that the judgment of the lower court declaring
a widow entitled to a tract of land could not be disturbed, un-
less certain other kindred could claim under the treaty stipula-
tion between the United States and the Swiss Federation. The
court conceded that the treaty was paramount to the state law,
but held that the claimants were precluded from the interest
claimed by them by the lapse of time. Under the law of Ken-
tucky, all rights to alien heirs were refused at any and all times ;
"the treaty, however, invests them with an interest provided it
is asserted within three years after the right accrues; or rather,
it forbids any law limiting their right of recovery to less than
three years, the effect of which is to permit any restriction by
state legislation against such recovery, which will not interfere
with the right for that period. The state law was, therefore,
so affected by the treaty as to become inoperative for a period of
three years — but no further — it being a well-settled rule that
dom as any province could be with of Waldeck are subjects of the King
any slight reservation of governmental of Prussia. Prussian authority is al-
authority. It has a slight representa- most, if not quite, absolute, as to its
tion in the federal council and im- military, judicial, and administrative
perial diet, or at least it did have. affairs. Little, if anything of im-
It is historically said that its military portance is left, except its religious
affairs are all in the hands of the concerns. These, we think, are the
Prussian government, and education, controlling facts in the case; and
the administration of justice, and our conclusion is that, because of the
similar matters are all conducted on treaty between this and the Prussian
the Prussian model. If a subject is government, the appellees inherit
one who is governed by the laws of from Adam Wilcke. ' ' Wilcke v.
a sovereign or country, and owes al- Wilcke, 102 Iowa, 173, 71 N. W. 203.
legiance thereto, it is difficult to es- 14° Trimbles v. Harrison, 1 B. Mon.
cape the conclusion that the citizens (40 Ky.) 140.
§§ 253, 254] TREATIES, STATE CONSTITUTIONS AND STATUTES. 296
when a state law is deemed unconstitutional, because opposed to
the Constitution, laws and treaties of the federal government, it
is only void so far as it contravenes the Constitution, laws or
treaties."147
§ 253. In Maryland. — In Maryland the court held that on the
19th of November, 1794, when the treaty between Great Britain
and the United States was made, no British subject could hold
land in that state, and that by virtue of certain acts of confisca-
tion, the state was in possession of all British property within the
limits of the state, and decided that the treaty had no application.
A writ of error was sued out to the supreme court of the United
States, on the ground that the case was one arising under a treaty,
but the latter court did not consider it such a case and dismissed
the writ.148
§ 254. In Massachusetts. — In Massachusetts a suit was brought
upon an information in the nature of an inquest of office, and it
was alleged in the information that an alien had purchased the
tenements in fee ; that in consequence of his alienage the common-
wealth was entitled to them, but the defendant unlawfully held
them. The defense was placed on two grounds: First, that an
inquest of office could not be had to entitle the commonwealth
to lands purchased by an alien, after he had conveyed his estate
in them; and secondly, that by the treaty of 1794 between Great
Britain and the United States, the alien was protected in his pur-
chase, so that a conveyance by him in fee to a citizen of the
United States would pass the estate to such citizen. The court
147 Yeaker's Heirs v. Yeaker's ' cases arising under treaties.' Each
Heirs, 4 Met. (Ky.) 33, 81 Am. Dec. treaty stipulates something respect-
530. ing the citizens of the two nations,
148 Owings v. Norwood, 2 Har. & J. and gives them rights. Whenever a
(Md.) 96. In the United States su- right grows out of, or is protected
preme court Mr. Chief Justice Mar- by, a treaty, it is sanctioned against
shall said: "The reason for inserting nil the laws and judicial decisions
that clause in the constitution was of the states, and whoever may have
that all persons who have real claims Ihis right, it is to be protected. But
under a treaty should have their causes i f the person 's title is not affected
decided by the national tribunals. It l:y the treaty, if he claims nothing
was to avoid the apprehension as well under a treaty, his title cannot be
as the danger of state prejudices. protected by the treaty." Owings v.
The words of the constitution are Norwood, 5 Cranch, 344, 3 L. ed. 120.
297 IN MICHIGAN. [§§ 255, 256
did not give an opinion on the first ground, but held the second
ground of defense sufficient, as the alien's title was protected
by the treaty.149 This treaty applies to vested remainders as
well as to estates in possession. "The word 'lands' in the treaty
must be understood to mean any estate which one may hold in
land, and cannot be confined to the actual possession and occupa-
tion of the soil."150
§ 255.. In Michigan. — In Michigan the court held that the
provisions of the treaty of 1794 between Great Britain and the
United States applied only to the protection of valid titles. They
did not apply to mere possessory rights without any title in fact,
which by later legislation by Congress were, in cases of continuous
occupancy and improvement, enlarged into freeholds.151 The
court said that the policy of the government had uniformly been
to encourage resident aliens to become citizens, and, hence, it
would violate that policy to concede, by construction, to those
who continued to be aliens by choice, rights not conferred ex-
pressly by treaty or by statute.152
Where a treaty recognizes the reservation of certain lands to
have been in a certain tribe of Indians, the courts are bound so
to regard it. "When a treaty," said Mr. Justice Campbell, "has
been made by the proper federal authority and ratified, it be-
comes the law of the land, and the courts have no power to ques-
tion, or in any manner look into, the power or rights of the na-
tion or tribe with whom it is made. The action of the treaty-
making power is conclusive upon such inquiry." 153
§ 256. In New York. — In New York it was held in a case de-
cided in 1802 that the American Revolution worked no forfeiture
of previously vested rights in lands. The court considered the
rights of certain aliens to acquire land in that state, and after
deciding in their favor, stated that if any doubt existed, it would
be removed by the treaty, and after quoting the ninth article of
the treaty of 1794 between Great Britain and the United States,
"9 Commonwealth v. Sheafe, 6 Mass. 152 Crane v. Eeeder, 21 Mich. 24,
441. 4 Am. Eep. 430.
150 FOX v Southaek, 12 Mass. 143. 153 Maiden v. Ingersoll, 6 Mich. 372,
151 Crane v. Eeeder, 21 Mich. 24, 376.
4 Am.. Eep. 430.
§ 257] TREATIES, STATE CONSTITUTIONS AND STATUTES. 298
said: "This provision thus removes all objections to the title of
those lessors, or to their remedy founded on the joint demise of
them, and their husbands, so far as their alienism is the cause of
the objection."154
A British subject died in 1793 owning real estate in New York
without issue, leaving a brother and three sisters living in Ireland.
In 1804 the legislature passed an act vesting the real estate in
one of the sisters, who had married an alien, in like manner as if
she had been a citizen at the time of her brother's death. In an
action of ejectment it was held that the decedent, having emi-
grated to this country after the Declaration of Independence, was
to be considered as an alien, and that the land held by him was,
by the provisions of the treaty of 1794, vested in him and his
heirs notwithstanding their alienage. The act of the legislature
giving the whole of his estate to one of his heirs in exclusion of
the rest was in violation of the treaty and void.155
A case arose in that state where the treaty of 1794 was held to
have no application, because the title to the lands involved was
acquired after the treaty, and did not exist at the time the treaty
was concluded, the treaty protecting only existing titles.156 But
if at the date of that treaty a British subject was the owner of
land, by virtue of a conveyance executed in 1774, and he died
an alien in 1802, he and his heirs, it was held, were entitled to
protection under that treaty, although they had no possession
under their title. The son of the alien owner, who was also an
alien, could take the lands by descent from his father.157
Under the treaty of 1794 a British subject holding lands in the
United States was authorized to convey or devise the property
to aliens as well as to citizens.158 The treaty of 1794 rendered
the title of every alien British subject to lands in every part of
the United States then held by him not only valid, but freely alien-
able, as though he had been a native-born or naturalized citizen.159
§ 257. Limitation on time to sell. — The treaty of 1845 between
the United States and the grand duchy of Hesse provided that
154 Jackson v. Lunn, 3 Johns. Cas. 1M Watson v. Donnelly, 28 Barb.
109, 119, per Kadcliff, J. (N. Y.) 653.
155 Jackson v. Wright, 4 Johns. 75. 159 People v. Snyder, 51 Barb. (N.
156 Jackson v. Decker, 11 Johns. 418. Y.) 589.
157 Munro v. Merchant, 26 Barb. (N.
Y.) 384.
299 LIMITATION ON TIME TO SELL. [§ 257
in cases where, on the death of any person holding real property
within the territories of one party, such real property would,
according to the law of the land, descend on the subject or cit-
izen of the other were he not disqualified by alienage, such cit-
izen or subject shall be allowed a term of two years in which to
sell the same, which term may be reasonably prolonged accord-
ing to circumstances. The court, construing this provision, held
that title to real property descended upon the death of the owner
to such heirs of the decedent as were residents and capable of
taking, subject to be de vested by a sale within two years by the
alien heirs. If the alien heirs, however, do not exercise the power
of sale given by the treaty, within the time specified, and no pro-
longation of the time is obtained, the title vests unqualifiedly in
the citizen heirs. The legislature of the state, where Congress
has failed to act, has power to prolong the term in which the
power of sale may be exercised. It has the power to determine
what would be a reasonable prolongation of that term, and if it
passes an act giving an indefinite unlimited time in which the alien
heirs can convey the land, it does no harm or injustice to the
resident heirs. Such an act is valid, and a conveyance made by
the alien heirs after the expiration of the period of two years
mentioned in the treaty is valid.160 Such a treaty modified the
laws of descent prevailing in the state only to the extent neces-
sary to give the provisions of the treaty scope. It left the state
laws to operate as a devolution of the estate of the decedent, sub-
ject to 'the power of sale given to his alien heirs. The resident
heirs, by such a treaty, took the title subject to the power of
sale, and were authorized to hold the land until a conveyance
was made by the alien heirs under the power of sale.161 The
law of New York providing that the right of alien adult males
to inherit land shall be dependent on the filing of a deposition
of their intention to become citizens before the conclusion of pro-
ceedings by the state to defeat their title is superseded, so far as
citizens of Prussia are concerned, by the treaty concluded in 1828,
declaring that subjects of that country who are incapable by
reason of alienage from inheriting land in the United States shall
be allowed a reasonable time in which to sell the same, and to
160 Bollerman v. Blake, 94 N. Y. 161 Bollerman v. Blake, 94 N. Y.
624, 24 Hun (N. Y.), 187. 624, 24 Hun (N. Y.), 187.
§ 258] TREATIES, STATE CONSTITUTIONS AND STATUTES. 300
withdraw the proceeds.162 It was in the case just cited considered
that a sale of the land of a decedent within two years and four
months after his death was a sale within a reasonable time as con-
templated by this provision of the treaty.163
The provision in the treaty with Wiirttemberg that an alien
shall be allowed two years in which to sell real property, which
term may be reasonably prolonged, is, it is held, in effect a stat-
ute of limitation, and when there has been no prolongation the
statute must apply.164
§ 258. Existence of title at time of treaty. — As the treaties
of 1783 and 1794 between the United States and Great Britain
provide only for titles then existing, no claim to lands can be
established under either treaty where the claimant cannot show
a title in himself or his ancestor at the time of the execution of
the treaty. A native of New York, whom we shall call A, resided
and owned land in that state after the Declaration of Inde-
pendence, but in 1783 left for Nova Scotia with his family,
excepting his eldest son. He died on the passage but his family
continued on to Nova Scotia, where they settled and remained
ever afterward in the British provinces. His eldest son remained
in New York in the occupation of the land until 1838, in which
year he died, leaving surviving him several children. It was de-
cided that all of A's children were aliens, incapable of taking by
descent, and that as against them the land should be awarded to
the children of the eldest son.165
The escheat of lands held by British subjects in New York
was barred by the sixth article of the treaty of 1783, and they
were enabled to transmit them by descent, but such descent must
be to a citizen. If a British subject died previous to the treaty
of 1794, leaving no citizen heirs, the provisions of the treaty, it
was decided, did not pass the land to alien heirs, but it es-
cheated.166 So, under the treaty with Prussia, an alien may
take and hold land under a devise from a native-born citizen.167
1C2 In re Beck, 11 N. Y. Supp. 199, m Wieland v. Kenner, 65 How. Pr.
31 N. Y. St. 965, 2 Connolly Surr. 245.
(N. Y.) 355. 163 Orser v. Hoag, 3 Hill (N. Y.),
10 In re Beck, 11 N. Y. Supp. 199, 79.
31 N. Y. St. 965, 2 Connolly Surr. M Brown v. Sprague, 5 Denio (N.
(N. Y.) 355. Y.), 545.
167 Stamm v. Bostwick, 40 Hun, 35.
301 SAME RIGHTS AS RESIDENT HEIR. [§§ 259, 260
§ 259. Same rights as resident heir. — The treaty between the
United States and Wiirttemberg providing that an alien heir shall
be allowed two years in which to sell property devolving on him
is intended to confer on the alien heir for that period precisely
the rights that he would enjoy if he were a resident heir. Pend-
ing that time, he may possess the property, improve it and exer-
cise all dominion over it for the purpose of rendering it more
productive and valuable, and may enjoy its rents and profits.
The treaty, as the supreme law of the land, is paramount to all
state laws.168
§ 260. In North Carolina. — In North Carolina, article 6 of the
treaty made in 1782 between the United States and the States
General of the United Netherlands was before the court for con-
struction, and one of the questions to be determined was as to
the meaning to be given to the word "effects" — whether it in-
cluded things immovable as well as movable. The court declared
that unless the word embraced things immovable as well as mov-
able, no right was granted by the treaty, because under the law re-
lative to alienage there was no objection to the acquisition of title to
movable or personal property, either by purchase or succession
by law.169
168 Kull v. Kull, 37 Hun (N. Y.), pose of their effects by testament, do-
476. This treaty of 1844 between nation, or otherwise; and their heirs,
the United States and the kingdom of subjects of one of the parties, shall
Wiirttemberg relative to the right receive such successions ab intestato,
of aliens to succeed by descent was even though they have not received
abrogated by the treaty of Decem- letters of naturalization. And, if the
ber 11, 1871, between the United heirs to whom such succession falls
States and the Emperor of Germany, shall be minors, their guardian or
as the latter, under the constitution curator may govern, direct, and alien-
of the Empire of Germany, in which ate the effects fallen to such minors
the kingdom of Wiirttemberg had by inheritance. If this case rested
become incorporated, represents the on the meaning to be given to the
empire among nations and makes alii- word 'effects' even without a context,
ances with them. In re Strobel's I should think, being found where it
Estate, 39 N. Y. Supp. 69, 5 App. is, in a treaty between powers hav-
Div. 621. ing no common technical terms — in
169 University v. Miller, 14 N. C. fact not a common language — that it
188. The language of the court wah included things immovable as well
as follows : ' ' The next question is the as movable. In the first place, the
effect of that treaty on the case. By instrument is to receive an extended
the sixth article it is provided that and liberal construction; not like the
the subjects of either party may dis- contract of individuals, where nothing
§ 261]
TREATIES, STATE CONSTITUTIONS AND STATUTES.
302
Although many revolutions and changes in the government had
occurred, the court held in that case that the courts cannot notice
judicially what treaties with foreign governments are in force, as
that question must be determined by the Executive.170
§ 261. Confiscation acts annulled. — The treaty of peace with
Great Britain of 1783 annulled the confiscation acts of North
Carolina, and debts due to British subjects paid into the public
treasury in conformity with such confiscation acts may be re-
is presumed to be granted but that
falls plainly within the words of the
grant. But in this case, unless the
meaning of the word be extended to
things immovable, nothing at all is
granted by the word 'effects'; for
by our law alienage is no objection
to the acquisition of movables in any
way, either by purchase or succession
ab intestato. And so I presume it
is in the States General. If not, to
obtain it by pretending to grant some-
thing in lieu of it, when in fact noth-
ing was granted, is a trick which I
would not, even in argument, im-
pute to our negotiator. But taken
with the context, I think there cannot
be a doubt. The words 'succession
ab intestato' are a well-known term
of the civil law — a law on which the
laws of continental Europe may be
said to be based. By that law, it in-
cludes succession to immovable as well
as movable estates. And to use terms
which by this almost universal law
would give to our citizens the right
to succeed to immovable estates, and
to deny it to them by any restricted
sense to which we might confine the
terms, is not presumed to have been
the intent of either party. I say
'to give to our citizens' because, if
the ci\il law prevails in the Nether-
lands— and I presume it does — it
would do so. But why negotiate in
the terms of the laws of the Nether-
lands, and not in the terms of our
laws? The answer is: Our laws are
peculiar to use and the English — the
civil law, common to all continental
Europe. But there are terms in the
context which even in our law would
give to this word 'effects' an im-
movable character. In the civil law,
he who succeeds to the estate of a
dead man, either movable or immov-
able, is called 'heir.' By our law,
the term is confined to him who suc-
ceeds to his immovable, or rather real,
estate. By the civil law, 'inherit-
ances' embrace movable as well as
immovable estates. By our law, the
term is confined to immovable estates;
at least, it does not embrace what we
call 'chattels.' But in the treaty
both the word ' heirs ' and the wore!
'inheritances' are used. How shall
they be understood — according to our
laws or theirs? If, by our laws, goods
only are to be included, we shall have
in our legal phraseology — new, to be
sure — ' heirs claiming money and other
personal goods, descending from their
ancestor as their inheritance. ' It is
very plain, I think, that it was in-
tended to embrace all kinds of prop-
erty by the treaty; and therefore, the
lands in question are embraced by it.
Effects descending by inheritance
must include land."
170 University v. Miller, 14 N. C.
188.
303 IN PENNSYLVANIA. [§ 262
covered by the creditor from the debtor.171 And where a person
named in such confiscation act has given a bond to convey his
land, he is entitled under that treaty, as a British subject, to re-
cover the balance due on the bond.172 But if the confiscation
had been perfected by inquest and lapse of time, the treaty has
no operation.173
§ 262. In Pennsylvania. — In Pennsylvania an act of proclama-
tion was issued during the war of the Revolution, and an indi-
vidual who did not appear within the time prescribed was at-
tainted of treason for adhering to the King of Great Britain;
and as a consequence his estate was confiscated to the use of the
commonwealth. It had, however, not been taken into possession,
and after peace had been declared he returned to Pennsylvania
and applied to the executive council for a restoration of his es-
tate, representing that he was a minor at the time of his attainder,
and was forcibly prevented by his guardian from enlisting in the
American army. It was finally suggested that the attorney gen-
eral should file a suggestion in the supreme court of the attainder
of the defendant, and this was done. But the chief justice
delivered the opinion of the court to the effect that any pro-
ceedings against the defendant would contravene the treaty of
peace and amity between the United States and Great Britain, for
171 Hamilton v. Eaton, 2 Mart. (1 former. Nor is it material, as to the
N. C.) 1,1 Hughes, 249, Fed Gas. No. effect of the public will, what organ
5980. Said Chief Justice Ellsworth: it is declared by, provided it be an
' ' Here it is contended by the defend- organ constitutionally authorized to
ant's counsel that the confiscation act make the declaration. A. treaty when
has not been repealed by the state; it is in fact made, is, with regard to
that the treaty could not repeal or each nation that is a party to it, a
annul it; and therefore that it re- national act, an expression of the
mains in force, and secures the de- national will, as much so as a stat-
fendant. And further, that a repeal ute can be. And it does, therefore,
of it would not take from him a right of necessity, annul any prior statute,
vested to stand discharged. As to so far as there is an interference,
the opinion, that a treaty does not The supposition that the public can
annul a statute, so far as there is an have two wills at the same time, re-
interference, it is unsound. A stat- pugnant to each other, one expressed
ute is a declaration of the public will, by a statute and another by a treaty,
and of high authority ; but it is con- is absurd. ' '
trollable by the public will subse- 172 Bay v. McCulloch, 1 N. C. (N.
quently declared. Hence the maxim, C. Conf.) 492.
that when two statutes are opposed to m Commonwealth v. Bristow, 6
each other, the latter abrogates the Call (Va.), 60.
§§ 263, 264] TREATIES, STATE CONSTITUTIONS AND STATUTES. 304
which reason it refused to sustain the suggestion filed by the
attorney general.174 Referring again to the attainder laws of
that state it was held in the federal courts that the stipulations
in the treaty are paramount to the provisions of a particular
state.175
§ 263. In South Carolina.— In South Carolina the effect of
treaties upon alienage has been considered, and the court de-
cided that the treaty of 1794 enabled an alien mother of an
American daughter to inherit her lands in that state.176 But it
was held that this treaty did not enable aliens to take by descent
the land of British subjects situated in this country.177 By the
provisions of the treaty with Prussia, citizens and subjects of the
two countries are authorized to sell real estate which descends
to them in the country of the other power, and these provisions
are applied to Poles, who are subjects of Prussia, and conse-
quently they are allowed to take by virtue of the residuary clauses
in a will.178
§ 264. In Tennessee. — In Tennessee the court stated that an
alien had no inheritable blood. Provisions as to the rights of
alien heirs were made by the code of that state, but the cause
before the court, it was stated, must be determined at last upon
the international agreement on the subject existing with France,
and in the language of Mr. Justice Sneed: "If the law contra-
venes the treaty, the latter must prevail. The treaty is the su-
preme law on this subject. Whenever a right grows out of or
is protected by a treaty, it is sanctioned against all the laws
and judicial decisions of the state; and whoever may have this
right, it is to be protected."179
Construing the treaty of 1783, the court held that natives of
Scotland who became residents and had their domicile in the
United States before the close of the revolutionary war were
prima facie not aliens, and that the burden of proving their ad-
174 Kespublica v. Gordon, 1 Dall. See for other cases in South Caro-
(Pa.) 233, 1 L. ed. 115. lina, Duncan v. Beard, 2 Nott & McC.
175 Gordon v. Kerr, 1 Wash. C. C. 400; Love v. Hadden, 3 Brev. 1.
322, 10 Fed. Cas. No. 5611. 178 Hart v. Hart, 2 Desaus. Eq. 57.
176 Megrath v. Eobertson, 1 Desaus. 179 Baker v. Shy, 9 Heisk. (Tenn.)
Eq. 449. 85.
177 Ex parte Dupont, Harp. Eq. 5.
305 IN TEXAS. [§§ 265, 266
herence to the British crown rested upon those who imputed
alienage.180
Where, in an action of ejectment, the plaintiff claimed under
a grant from North Carolina made in 1800, founded on an entry
made in 1783, and the defendant based his claim on a reservation
in favor of a native Indian by a treaty made with the Cherokee
Indians in 1879, it was decided that the defendant had the
better title.181 It was likewise held that the reservations of
land to the head of every Indian family made by the treaties
with the Cherokees of 1817 and 1819 are valid and binding on
the state of Tennessee and on all persons claiming through the
state.182
§ 265. In Texas. — In Texas it was claimed that the statute
providing for an investigation by commissioners of land titles
was in violation of the treaty of Guadalupe Hidalgo. The stat-
ute provided that "No sale by any claimant of land under the
provisions of this act shall take place until after a title to the
same shall have been confirmed to the original claimant or
claimants, but all such sales of lands or claims to lands shall
be void; and no claims to lands in the hands of a third person
shall be recognized by the board of commissioners unless the
sale or transfer of the same was made prior to the passage of
the act." It was claimed that this act was in violation of the
treaty, and while the court said it would be a sufficient answer to
the objection to say that it did not appear that the claimant was
a citizen of Mexico at the date of the treaty, yet even if he were,
the act was not violative of the treaty because it secured Mexicans
in their rights of property and gave them, in that respect, the
same protection extended to citizens of the United States.183
§ 266. In Virginia. — In Virginia, under the treaty of 1794
between the United States and Great Britain, it was held that
an alien had the power to convey by deed or will any real es-
tate held by him at the date of the treaty to any person capable
180 Moore v. Wilson, 10 Yerg. 182 Blair v. Pathkiller, 2 Yerg.
(Tenn.) 406. (Tenn.) 407.
181 Cornet v. Winston, 2 Yerg. 183 Baldwin v. Goldfrink, 88 Tex.
(Tenn.) 144. 249, 31 S. W. 1064.
Treaties — 20
§ 266] TREATIES, STATE CONSTITUTIONS AND STATUTES. 306
of taking and holding title to real property.184 But where the
land has been actually confiscated by office found, and the con-
fiscation perfected, the treaty had no operation.185
As a citizen of Great Britain was by the treaty entitled to hold
land, and no proceedings had been instituted during the war of
1812 to escheat it, his rights were not devested by the war, but
upon his death the land descended to his heirs.186
m Foxwell v. Craddock, 1 Pat. & "• Fiott v. Commonwealth, 12 Gratt.
H. (Va.) 250. (Va.) 564.
185 Commonwealth v. Bristow, 6 Call
(Va.), 60.
307 TREATIES OP CESSION. [§ 267
CHAPTER X.
TEEATIES OF CESSION.
§ 267. Power to acquire territory by treaty.
268. Territory may be acquired by war power or treaty-making power.
§ 269. Sovereignty passes and not property.
§ 270. Wishes of population not to be consulted.
§ 271. Eules of international law.
§ 272. Samoan and Gilbert Islands.
§ 273. Titles not devested.
§ 274. Tide lands previously granted.
§ 275. Grants made by states in case of disputed boundaries.
§ 276. What are property rights.
§ 277. Subsequent acts of Congress.
§ 278. Property includes every species of title.
§ 279. Copyrights, patents and trademarks.
Loss of trademarks by laches.
Political department to provide mode.
Delegation to judicial department.
§ 283. Incomplete titles not made complete.
§ 284. Grant deemed abandoned.
Collateral attack.
Perfected claims before land commission.
Measuring of land.
Titles complete at time of cession.
Act of Congress in conflict with treaty of cession.
Mexican titles in California after treaty.
Effect of these acts.
Decree has effect of judgment.
Other statutes.
Preventing incorporation of ceded territory into United States.
Inhabitants of ceded territory as citizens.
Foreign corporations not subjects.
Effect of treaty on dam in Eio Grande.
§ 267. Power to acquire territory by treaty .-^-The Constitu-
tion does not contain an express declaration that the United
States has power to acquire foreign territory by treaty, but as
Chief Justice Marshall said, the Constitution does confer ''ab-
solutely on the government of the Union the power of making
war and of making treaties; consequently, that government pos-
§ 268] TREATIES OF CESSION. 308
sesses the power of acquiring territory, either by conquest or by
treaty."1
With respect to the relations of the inhabitants to each other,
Chief Justice Marshall said: "The usage of the world is, if a
nation be not entirely subdued, to consider the holding conquered
territory as a mere military occupation, until its fate shall be
determined at the treaty of peace. If it be ceded by the treaty,
the acquisition is confirmed, arid the ceded territory becomes a
part of the nation to which it is annexed, either on the terms
stipulated in the treaty of cession, or on such as its new master
shall impose. On such transfer of territory it has never been
held that the relations of the inhabitants with each other undergo
any change. Their relations with their former sovereign are
dissolved, and ,new, relations are created between them and gov-
ernment which has acquired their territory. The same act which
transfers their country, transfers the allegiance of those who
remain in it; and the law, which may be denominated political,
is necessarily changed, although that which regulates the inter-
course and general conduct of individuals, remains in force until
altered by the newly created power of the state. " 2
§ 268. Territory may be acquired by war power or treaty-
making power. — As said by Mr. Justice Swayne: "What is clearly
implied in a written instrument is as effectual as what is ex-
1 American Ins. Co. v. 356 Bales of ''This treaty is the law of the
Cotton, 1 Pet. (U: S.) 512, 7 L. ed. land, and admits the inhabitants of
243. .' Florida to the enjoyment of the privi-
2 American Ins. Co. v. 356 Bales of leges, rights, and immunities of the
Cotton, 1 Pet. (U. S.) 512, 7 L. ed, citizens of the United States. It is
255: "On the 2d of February, 1819, unnecessary to inquire' whether this
Spain ceded "Florida to the United is not their condition, independent of
States. The 6th article of the treaty stipulation. They do not, however,
of cession contains the following pro- ' participate in political power ; they
vision: 'The inhabitants of th'e ter- do not share in the government with
ritories which his Catholic majesty Florida till Florida shall become a
cecles 'to the United States by this State. In the meantime, Florida con-
treaty shall be incorporated in the tinues to be a territory of the United
Union of the United States, as soon States, governed by virtue of that
as may be consistent with the prin- clause in the constitution which em-
ciples of the federal constitution, and powers Congress 'to make all need-
admitted to the enjoyment of the ful rules and regulations respecting
privileges, rights, and immunities of the territory or other property belong-
the citizens of the United States. ' ing to the United States. '
309 SOVEREIGNTY PASSES AND NOT PROPERTY. [§ 269
pressed. The war power and the treaty-making power, each
carries with it authority to acquire territory. Louisiana, Florida
and Alaska were acquired under the latter, and California under
both." The power of the United States to acquire territory,
either by purchase or by treaty, is undisputed, and when the
territory of California passed to the federal government, every
acre of land not the property of Mexican citizens passed to it.
As sovereignty can never be in abeyance, it follows, upon the
ground of necessity, that until the organization of some local
government, the United States succeeded to and represented the
government of Mexico, so far as under the Constitution such
powers could be exercised.4 After the acquisition of foreign
territory by treaty, Congress has the power to pass laws for the
purpose of protecting the private rights of the inhabitants of the
ceded territory that have been guaranteed to them by the treaty.
State authority cannot interfere with such laws.5
§ 269. Sovereignty passes and not property. — When territory
is acquired by a treaty of cession, the sovereignty over the ter-
ritory ceded passes to the United States, but not the property of
the inhabitants. It was stipulated in the treaty by which
Louisiana was acquired that the inhabitants of the ceded territory
should be protected in the free enjoyment of their property.0
But Chief Justice Marshall, in a case in which this treaty came
before the court, said that as a just nation the United States re-
garded this stipulation as a declaration of a principle "which
would have been held equally sacred though it had not been in-
serted in the contract. ' ' 7
Mr. Justice Baldwin, delivering the opinion of the court, said
that it was definitely settled: "That by the law of nations, the
"Perhaps the power of governing source whence the power is derived,
a territory belonging to the United 'the possession of it is unquestioned."
States, which has not, by becoming United States v. 356 Bales of Cotton,
a state, acquired the means of self- 1 Pet. 512, 7 L. ed. 255.
government, may result necessarily 3 Stewart v. Kahn, 11 Wall. (U. S.)
from the facts that it is not within 507, 20 L. ed. 179.
the jurisdiction of any particular state * People v. Folsom, 5 Cal. 375.
and is within the power and juris- 8 Gardiner v. Miller, 47 Cal. 570.
diction of the United States. The * 8 Stats, at Large, 200.
right to govern may be the inevitable T Soulard v. United States, 4 Pet.
consequence of the right to acquire (U. S.) 511, 7 L. ed. 938.
territory. Whichever may be the
§ 270] TREATIES OF CESSION. 310
inhabitants, citizens, or subjects of a conquered or ceded country,
territory or province retain all the rights of property which have
not been taken from them by the orders of the conqueror, or the
laws of the sovereign who acquires it by cession, and remain un-
der their former laws until they shall be changed. That a treaty
of cession was a deed or grant by one sovereign to another, which
transferred nothing to which he had no right of property, and
only such right as he owned and could convey to the grantee.
That by the treaty with Spain the United States acquired no
lands in Florida to which any person had lawfully obtained such
a right by a perfect or inchoate title, that this court could con-
sider it as property under the second article, or which had, ac-
cording to the stipulations of the rights, been granted by the law-
ful authorities of the king; which words 'grants or concessions'
were to be construed in their broadest sense, so as to comprehend
all lawful acts which operated to transfer a right of property,
perfect or imperfect. ' ' 8
§ 270. Wishes of population not to be consulted. — There is no
principle of international law that the wishes of the people should
be consulted upon the cession of the territory inhabited by them,
and until title by conquest has disappeared, no such principle can
be adopted.9 In 1897, when it was proposed to annex the
Hawaiian Islands to the United States, objections to this course
were made by Mr. Torn Hoshi, the Japanese Minister, under in-
structions from Count Okuma, and in the opening of the note on
the subject the statement was made: "It is understood that only
a small fraction of their number favor annexation." Mr. Sher-
man, Secretary of State, said that he could not allow this declara-
tion to pass over in silence, and stated: "It cannot be that one
so well informed in the history of international relations as Count
Okuma could have wished to suggest thereby the propriety of
appealing from the action of the Government to 'the population.'
In international comity and practice the will of a nation is as-
certained through the established and recognized government, and
it is only through it that the nation can speak. This is shown
8 Mitchel v. United States, 9 Pet. 9 Hale 's International Law, 4th ed.,
711, 9 L. ed. 283. 49.
311 RULES OF INTERNATIONAL LAW. . [§ 271
in the relations of the United States with Japan. The first in-
tercourse of this Government with the Empire was had, with an
authority which held a divided, if not disputed, sovereignty.
Later, when all power and legislation was centered in the Em-
peror, this Government recognized him as the sole exponent of the
public will. When parliamentary government was established
the changed relation was accepted by the United States. No in-
quiry was thought proper to ascertain whether these various
changes received the sanction of 'the population.' The present
Government of the Hawaiian Islands, recognized by Japan and
other countries, has been in existence for a series of years, dur-
ing which time public peace and social order have been main-
tained, and the country has enjoyed an era of unprecedented pros-
perity. The Government of the United States sees no reason to
question its complete sovereignty, or its right to express the na-
tional will. " 10
§ 271. Rules of international law. — It was contended by the
government of Chile that a sovereign, when occupying a con-
quered territory, possessed, by the principles of international law,
the right to test titles acquired under his predecessor, by apply-
ing to them the municipal law of his own government, and not
the municipal law of its predecessor, or under which they were
vested. Mr. Bayard, Secretary of State, in answering this con-
tention, cited the cases holding that the rights acquired under the
prior Mexican and Spanish law were "consecrated by the law
of nations," and said: "The Government of the United States,
therefore, holds that titles derived from a duly constituted prior
foreign government to which it has succeeded are 'consecrated
by the law of nations' even as against titles claimed under its
own subsequent laws. The rights of a resident neutral — having
become fixed and vested by the law of the country cannot be
denied or injuriously affected by a change in the sovereignty or
public control of that country by transfer to another government.
His remedies may be affected by the change of sovereignty but
his rights at the time of the change must be measured and de-
termined by the law under which he acquired them The
Government of the United States is therefore prepared to insist
10 MS. Notes to Japanese Legation, I, 533, 535; 1 Moore Int. L. D.
274.
§ 272] TREATIES OF CESSION. 312
on the continued validity of such titles, as held by citizens of the
United States, when attacked by foreign governments succeed-
ing that by which they were granted. Title to land and landed
improvements is by the law of nations, a continuous right,
not subject to be de vested by any retroactive legislation of new
governments taking the place of that by which such title was
lawfully granted. Of course it is not intended here to deny the
prerogative of a conqueror to confiscate for political offenses, or
to withdraw franchises which by the law of nations can be with-
drawn by governments for the time being. Such prerogatives
have been conceded by the United States as well as by other mem-
bers of the family of nations by which international law is con-
stituted. What, however, is here denied is the right of any gov-
ernment to declare titles lawfully granted by its predecessor to
be vacated because they could not have been lawfully granted if
its own law had, at the time in question, prevailed. This pre-
tension strikes at that principle of historical municipal continuity
of governments which is at the basis of international law."11
§ 272. Samoan and Gilbert Islands. — Mr. Bayard expressed'
himself similarly when the operations of Germany in the Samoan
Islands were reported. He said that there were islands in the
Pacific Ocean known to be wholly in the undisturbed possession
of American citizens as peaceable settlers, and others in which
American citizens have established themselves in common with
other foreigners. While the United States claimed no juris-
dictional right by reason of such occupancy, and were not
called upon to admit it in the case of like occupancy by others,
he stated: "What we think we have a right to expect, and
what we are confident will be cheerfully extended as a recog-
nized right, is that interests found to have been created in
favor of peaceful American settlers in those distant regions shall
not be disturbed by the assertion of exclusive claims of terri-
torial jurisdiction on the part of any power which has never
put forth any show of administration therein; that their trade
and intercourse shall not in any way be hampered or taxed other-
wise than as trade and intercourse of the citizens or subjects of
the power asserting such exclusive jurisdiction, and in short, that
11 Mr. Bayard, Secretary of State, Inst. Chile, XVII, 196, 200; 1 Moore
to Mr. Roberts, March 20, 1886, MS. Int. L. D. 422.
313 TITLES NOT DEVESTED. [§ 273
the equality of their tenancy jointly with others or the validity
of their tenancy where they may be the sole occupants, shall be
admitted according to the established principles of equity and
justice." 12 In 1892 Mr. Foster, Secretary of State, wrote to Mr.
White, charge at London, with reference to the extension of a
protectorate by Great Britain over the Gilbert Islands, asking
him to take an early occasion to make the views expressed by
him known to Lord Roseberry. "You will say to him that the
government believes that it has a right to expect that the inter-
ests of the American citizens established in the Gilbert Islands
will be as fully respected and confirmed under her Majesty's
protectorate as they could have been had the United States
accepted the office of protection not long since solicited by the
rulers of those islands. " To this Lord Roseberry replied that the
rights and interests of American citizens would be fully recog-
nized and respected by the British authorities.13
§ 273. Titles not devested. — Where a grant of land in Florida
was binding upon Spain before the acquisition of Florida, it is
also binding in the United States.14 The cession of Texas did not
devest the title of a citizen of Mexico to lands.15 When New
Mexico was acquired, the people retained their private vested
rights and all other rights originating in contract or usage and
which were not in conflict with the laws of the United States.16
A title is valid which was acquired under a Spanish grant, after
the cession of Louisiana to the United States, but before the tak-
ing of possession.17 When Texas acquired its independence, alien-
age alone did not forfeit the title to land in that state.18
12 Mr. Bayard, Secretary of State, Bayard, Secretary of State, to Mr.
to Mr. Pendleton, February 27, 1886, Von Alvensteben, German Minister,
MS. Inst. Germany, XVII, 602 ; 1 March 4, 1886, For. Eel. 1886, 333.
Moore Int. L. D. 423. Similar " For. Eel. 1892, 237, 239, 246.
expressions were made by Mr. 14 United States v. Clarke, 16 Pet.
Bayard in reference to the exer- ^U. S.) 232, 10 L. ed. 947.
cise of a protectorate by Portugal 13 Arihart v. Massieu, 98 U. S.
over the entire sea coast of Dahomey. 496, 25 L. ed. 215.
Mr. Bayard, Secretary of State, to 1C Leitensdorfer v. Webb, 20 How.
the Viscount das Nogueiras, Portu- 177, 15 L. ed. 891.
guese Minister, March 3, 1886, For. * Pollard v. Kibbe, 14 Pet. 375,
Rel. 1886, 772 ; and also in reference 10 L. ed. 501.
to the placing of the groups known as 18 Jones v. McMasters, 20 How.
Marshall, Brown and Providence un- (U. S.) 20, 15 L. ed. 810.
der the protection of Germany. Mr.
274]
TREATIES OF CESSION.
The act of Congress confirming a title which existed before the
territory was ceded is equivalent in its effect to a conveyance of
grant or quitclaim.19
§ 274. Tide lands previously granted. — In the United States
supreme court the law is well settled that absolute property in
and dominion and sovereignty over the land under tide waters
in the original states were reserved to the several states. New
states admitted into the Union possess the same rights, sovereignty
and jurisdiction in relation to the soils under tide waters as
belong to the original states within their respective limits.20
When the United States acquired title to territory from Mexico,
it acquired title both to tide lands and to upland. But it held
the title to the tide lands only in trust for the future states that
19 Langdeau v. Hanes, 21 Wall. 527,
22 L. ed. 608. For various cases re-
lating to the effect produced upon
the rights of inhabitants in the ceded
territory by a change of sovereignty
see Newhall v. Sanger, 92 U. S. 761,
23 L. ed. 769; Hornsby v. United
States, 10 Wall. (U. S.) 224, 19 L. ed.
900 ; Delassus v. United States, 9 Pet.
(U. S.) 118, 9 L. ed. 71; Chouteau v.
United States, 9 Pet. (U. S.) 138,
9 L. ed. 78 ; Strother v. Lucas, 12 Pet.
(U. S.) 410, 9 L. ed. 1137; Slidell
v. Grandjean, 111 U. S. 412, 4 Sup.
Ct. Kep. 475, 28 L. ed. 321; United
States v. Moreno, 1 Wall. (U. S.)
400, 17 L. ed. 633 ; Dent v. Emmeger,
14 Wall. 308, 20 L. ed. 838; Bryan
v. Kennett, 113 U. S. 179, 5 Sup.
Ct. Kep. 407, 28 L. ed. 908; United
States v. Chaves, 159 U.' S. 452, 16
Sup. Ct. Eep. 57, 40 L. ed. 215; Kin-
kead v. United States, 150 U. S. 483.
14 Sup. Ct. Eep. 172, 37 L. ed. 1152;
Ainsa v. United States, 161 U. S.
208, 16 Sup. Ct. Eep. 544, 40 L. ed.
673; United States v. Flint, 4 Saw.
42, 25 Fed. Gas. No. 15,121, affirmed,
98 U. S. 61 ; Callsen v. Hope, 75 Fed.
758; Coburn v. San Mateo County,
75 Fed. 520; Muse v. Arlington Hotel,
68 Fed. 637; May v. Specht, 1 Mich.
187; Puget Sound Agricultural Co.
v. Pierce County, 1 Wash. Ter. 159;
Eslava v. Doe, 7 Ala. 543; Wood-
worth v. Fulton, 1 Gal. 295; Ferris
v. Coover, 10 Cal. 589; Leese v. Clark,
20 Cal. 388; Ward v. Mulford, 32
Cal. 365; Thompson v. Doaksum, 68
Cal. 593, 10 Pac. 199; Wilson v.
Smith, 5 Yerg. (Tenn.) 379; McMul-
len v. Hodge, 5 Tex. 34; Trimble v.
Smithers, 1 Tex. 790; Blair v. Odin, 3
Tex. 288; Paul v. Perez, 7 Tex. 338;
Swift v. Herrera, 9 Tex. 263 ; Jones v.
Montes, 15 Tex. 351; Kilpatrick v. Sis-
neros, 23 Tex. 113; Maxey v. O'Con-
nor, 23 Tex. 234; Musquis v. Blake,
24 Tex. 461; Sabriego v. White, 30
Tex. 576; Ortiz v. De Benavides, 61
Tex. 60.
20 Martin v. Waddell, 16 Pet. 367,
10 L. ed. 997; Pollard v. Hagan, 3
How. 212, 11 L. ed. 565; Goodtitle
v. Kibbe, 9 How. 471, 13 L. ed.
220; Mumford v. Wardwell, 6 Wall.
423, 18 L. ed. 756; Weber v. Harbor
Commissioners, 18 Wall. 57, 21 L.
ed. 798.
315 GRANTS IN CASE OF DISPUTED BOUNDARIES. [§ 275
might be created out of such territory. This rule, however, has no
application to lands previously granted to other parties by the
former government, or made subject to trusts requiring some
other disposition of such lands. There is no doubt that when
California was acquired from Mexico by the United States, under
the treaty of Guadalupe Hidalgo, the United States was obli-
gated to protect all rights of property in California proceeding
from the government of Mexico before the execution of the
treaty.21 The eighth article of that treaty contains a stipulation
to that effect ;22 but even if such provision was absent, the obliga-
tions resting upon the United States, in so far as the protection
of property right is concerned, would, under the principles of
international law, have been the same.23
§ 275. Grants made by states in case of disputed boundaries. —
The only government having power to make a valid grant of
lands is that state in whose territory the land actually lies, and
hence grants of land made by a government in territory over
which it exercises political jurisdiction de facto, but to which it
rightfully has no claim, are not valid as against the government
which has the right to exercise jurisdiction over such territory.
In the case of disputed boundaries between two states, the title
to the land will depend upon the decision ultimately of which
-* Knight v. United States Land where, before cession to the United
Assn., 142 U. S. 184, 12 Sup. Ct. States by the Mexican government,
Rep. 258, 35 L. ed. 982 ; Teschemacher grants were made by the latter. Co-
v. Thompson, 18 Cal. 11, 79 Am. burn v. United States, 75 Fed. 528.
Dec. 151; Beard v. Federy, 3 Wall. And see Tripp v. Spring, 5 Saw. 209,
478, 18 L. ed. 88; San Francisco v. 24 Fed. Gas. No. 14,180; Coburn v.
Le Eoy, 138 U. S. 656, 11 Sup. Ct. San Mateo County, 75 Fed. 520; Peo-
Kep. 364, 34 L. ed. 1096. pie v. San Francisco, 75 Cal. 388, 17
- 9 Stats, at Large, 922. Pac. 522 ; Valentine v. Sloss, 103 Cal.
23 Knight v. United States Land 215, 37 Pac. 326; Ward v. Mulford,
Assn., 142 U. S. 184, 12 Sup. Ct. Eep. 32 Cal. 365; Teschemaker v. Thomp-
258, 35 L. ed. 982 ; Soulard v. United son, 18 Cal. 11, 79 Am. Dec. 151.
States, 4 Pet. 511, 7 L. ed. 938; See, also, United States v. Chaves,
United States v. Percheman, 7 Pet. 159 U. S. 457, 16 Sup. Ct. Eep. 59,
51, 8 L. ed. 604; Strother v. Lucas, 40 L. ed. 218. As to the rights re-
12 Pet. 410, 9 L. ed. 1137; United served of Indians in parts of ter-
States v. Eepentigny, 5 Wall. 211, 18 ritory ceded to the government, see
L. ed. 627. Title to tide lands in Godfrey v. Beardsley, 2 McLean, 418,
California is in the state, except Fed. Gas. No. 5497.
§ 275]
TREATIES OF CESSION.
316
state had jurisdiction. When the disputed boundary is adjusted
and settled, grants previously made by either state of lands
claimed by it, and over which it has exercised political sover-
eignty, but which, on the final adjustment of the boundary, are
determined to be within the limits of the other state, are void
unless confirmed by the latter state. Even if such confirmation
should be made, it cannot injure the title of the same lands which
the latter state itself had previously granted.24
24 Coffee v. Groover, 123 U. S. 10,
8 Sup. Ct. Eep. 5, 31 L. ed. 56. The
supreme court of Florida held that
grants in a disputed territory, by a
government exercising sovereign ju-
risdiction in such state, were valid
and to be sustained, notwithstanding
that by a subsequent settlement of
boundaries, the disputed territory is
conceded to the other contesting sover-
eign. The supreme court of the
United States reversed the judgment,
Mr. Justice Bradley, who delivered the
opinion of the court, saying: "It
is no doubt the received doctrine,
that in cases of ceded or conquered
territory, the rights of private prop-
erty in lands are respected. Grants
made by the former government,
being rightful when made, are
not usually disturbed. Allegiance is
transferred from one government to
the other without any subversion of
property. This doctrine has been laid
down very broadly on several occa-
sions by this court — particularly in
cases arising upon grants of land
made by the Spanish and other gov-
ernments in Louisiana and Florida
before those countries were ceded to
the United States. It is true that
the property rights of the people, in
those cases, were protected by stipu-
lations in the treaties of cession, as
is usual in such treaties; but the
court took broader ground, and held,
as a general principle of interna-
tional law, that a mere cession of
territory only operates upon the sov-
ereignty and jurisdiction, including
the right to the public domain, and
not upon the private property of in-
dividuals which had been segregated
from the public domain before the
cession. This principle is asserted
in the cases of United States v. Ar-
redondo, 6 Pet. 691, 8 L. ed. 547;
United States v. Percheman, 7 Pet.
Rl, 86-89, 8 L. ed. 604; Delassus v.
United States, 9 Pet. 117, 9 L. ed.
71; Strother v. Lucas, 12 Pet. 410,
428, 9 L. ed. 1137; Doe v. Eslava, 9
How. 421, 13 L. ed. 200; Jones v.
McMasters, 20 How. 8, 17, 15 L. ed.
805, and Leitensdorfer v. Webb, 20
How. 176, 15 L. ed. 891. In United
States v. Percheman, Chief Justice
Marshall said: 'It may not be un-
worthy of remark that it is very
unusual, even in cases of conquest,
for the conqueror to do more than
to displace the sovereign and assume
dominion over the country. The mod-
ern usage of nations, which has be-
come law, would be violated; that
sense of justice and of right which is
acknowledged and felt by the whole
civilized world would be outraged, if
private property should be generally
confiscated, and private rights an-
nulled. The people change their al-
legiance; their relation to their an-
cient sovereign is dissolved; but their
relations to each other, and their
rights of property, remain undis-
turbed. If this be the modern rule
317
WHAT ARE PROPERTY RIGHTS.
[§ 276
§ 276. What are property rights. — While there can be no
doubt that inhabitants of a ceded territory are entitled to pro-
tection in the full enjoyment of their property, the question has
sometimes arisen as to what are property rights. Preliminarily,
we can do no better than to quote the language of Mr. Chief
Justice Marshall, who, in an early case involving the protection
given by treaty, said: "The term 'property,' as applied to lands,
comprehends every species of title inchoate or complete. It is
supposed to embrace those rights which lie in contract; those
which are executory, as well as those which are executed. In
this respect, the relation of the inhabitants to their government
is not changed. The new government takes the place of that which
has passed away. ' ' 52
An adverse homestead entry will not affect a grant in Michigan
territory, which in accordance with the provisions of Jay's treaty
is subsequently confirmed by the United States.26 The law, as
well as the treaty of Guadalupe Hidalgo, protects titles perfected
under Spanish or Mexican grants,27 and grants made by Mexican
even in cases of conquest, who can
doubt its application .to the case of
an amicable cession of territory?
Had Florida changed its sovereign
by an act containing no stipulation
respecting the property of individ-
uals, the right of property in all
those who became subjects or citizens
of the new government would have
been unaffected by the change.' 7
Pet. 86, 87, 8 L. ed. 604.
"But whilst this is the acknowl-
edged rule in cases of ceded and
even conquered territory, with regard
to titles acquired from a former sov-
ereign who had undoubted right to
create them, it does not apply (as
we shall see) to cases of disputed
boundary, in relation to titles cre-
ated by a sovereign in possession, but
not rightfully so. In the latter case,
when the true boundry is ascertained,
or adjusted by agreement, grants
made by either sovereign beyond
the limits of his rightful territory,
whether he had possession of not (un-
less confirmed by proper stipulations),
fail for want of title in the grantor.
This is the general rule. Circum-
stances may possibly exist which
would make valid the grants of a
government de facto; as, for example,
where they contravene no other rights.
Grants of public domain made by
Napoleon as sovereign de facto of
France may have had a more solid
basis of legality than similar grants
made by him as sovereign de facto
of a Prussian province, derogatory
to the rights of the government and
King of Prussia. ' ' Coffee v. Groover,
123 U. S. 10, 8 Sup. Ct. Eep. 5, 31
L. ed. 56.
25 Soulard v. United States, 4 Pet.
512, 7 L. ed. 938.
* Sanborn v. Vance, 69 Mich. 226,
37 N. W. 273.
27 Minturn v. Brower, 24 Cal. 644.
§§ 277, 278] TREATIES OP CESSION. 318
officers in compliance with the Mexican laws applicable to Cali-
fornia are valid.28
§ 277. Subsequent acts of Congress. — Subsequent acts of Con-
gress confirming Spanish concessions for the shore will not impair
riparian rights of lot owners who have bought in accordance with
prior acts of Congress;29 but a title to land in Louisiana, which
is completed by a grant from the crown of Spain, will overcome
a title claimed under an act of Congress.30
It was held that a grant made by the British government is
valid notwithstanding the fact that as subsequently established
by treaty the land lies within the boundaries of the United
States.31 Where a grant has been perfected under Spanish au-
thority, the land affected became private property. Conse-
quently, upon the cession of Louisiana such land did not pass
to the United States.32 A change of sovereignty will not defeat
the title of Pueblo Indians to lands.33 Until a legislative enact-
ment makes a contrary provision, a ceded territory will retain
its system of laws.34
§ 278. Property includes every species of title. — The term
"property" used in treaties of cession includes every species of
title, inchoate or complete, legal or equitable, and comprehends
rights which lie in contract, executory as well as executed.35 The
rights of private property were not impaired by the cession of
California to the United States, and the act of Congress to as-
certain and settle private land claims in that state was passed
for the purpose of assuring to the inhabitants of the territory
ceded the benefit of the rights of property which the treaty
secured to them. This act recognized both legal and equitable
rights, and the court held that it should be administered in a
liberal spirit.36 All incomplete title acquired in a ceded territory
28 Reynolds v. West, 1 Cal. 326; nett v. Barnett, 9 N. Mex. 205, 50
Vanderslice v. Hanks, 3 Cal. 38. Pac. 337; Chavez v. Chavez, 7 N.
29 Abbots v. Kennedy, 5 Ala. 396. Mex. 69, 32 Pac. 140.
30 Hall v. Eoot, 19 Ala. 386. 35 Bryan v. Kennett, 113 U. S. 179,
31 Little v. Watson, 32 Me. 214. 5 Sup. Ct. Eep. 407, 28 L. ed. 908.
32 Roussin v. Parks, 8 Mo. 539. 36 United States v. Moreno, 1 Wall.
33 United States v. Lucero, 1 N. (U. S.) 400, 17 L. ed. 633. Cited in
Mex. 429. Town v. De Haven, 5 Saw. 149, Fed.
34 Browning v. Browning, 3 N. Mex. Cas. No. 14,113; Crystal etc. Co. v.
467 (371) [659], 9 Pac. 677; Bar- Los Angeles, 76 Fed. 153.
319 COPYRIGHTS, PATENTS AND TRADEMARKS. [§ 279
prior to a treaty is such a property interest as can be transferred
by mortgage or reached by judicial process.37
Spain, while in possession of territory afterward ceded, had
power to make grants founded on any consideration, and had ab-
solute discretion to impose any restriction.38 Property rights
were not devested by the revolutions in Texas.39
§ 279. Copyrights, patents and trademarks. — Copyrights and
patents may be protected under treaties of cession, though the law
of the United States may not give similar rights. It was pro-
vided in article XIII of the treaty of peace between the United
States and Spain of December 10, 1898, that the rights of prop-
erty secured by copyrights and patents acquired by Spaniards in
Cuba, Porto Rico and the Philippines should be respected. A
patent or license had been granted on July 11, 1898, to a Spaniard
for the manufacture of hemp by steam in the Philippines for a
period of five years. In the opinion of the attorney general of
the United States this patent was protected by the treaty if it
was valid under Spanish law, as the laws of Spain concerning
industrial property were in the contemplation of the framers of
this article of the treaty. In the English copy of the treaty,
article XIII provided that: "The rights of property secured by
copyrights and patents acquired by Spaniards in the island of
Cuba, and in Porto Rico, the Philippines, and other ceded terri-
tories, at the time of the exchange of the ratifications of this treaty,
shall continue to be respected," while in the Spanish copy the
article, instead of "rights of property secured by copyrights and
patents acquired by Spaniards," reads, "the rights of property,
literary, artistic, and industrial, acquired by Spaniards. ' ' 40
37 Bryan v. Kennett, 113 U. S. 179, treaty in Spanish, like the law of 1878,
5 Sup. Ct. Eep. 407, 28 L. ed. 908. speaks of industrial property. It
See, also, Doe v. Latimer, 2 Fla. 71. concerns only Spanish rights acquired
38 United States v. Clarke, 16 Pet. under Spanish laws; and the framers
(U. S.) 228, 10 L. ed. 946. of it must be presumed to have known
39 Trimble v. Smithers, 1 Tex. 790; something of those rights and laws
Ortiz v. De Benavides, 61 Tex. 60; of which they were treating, and to
Sabriego v. White, 30 Tex. 576; have had in mind such laws as that of
Maxey v. O'Connor, 23 Tex. 234; July 30, 1878, corresponding to our
Jones v. Montes, 15 Tex. 351. laws relating to patents. In English,
40 22 Op. Attys. Gen. 617. Mr. the words 'industrial property7 be-
Griggs, Attorney General, said : ' ' The come ' patents. ' I think it reasonable
§ 280] TREATIES OF CESSION. 320
The treaty between Spain and the United States of December
10, 1898, protects rights of property in trademarks in Cuba and
the Philippines, as they are included in the term "property of
all kinds." Where trademarks had been registered prior to the
execution of the treaty in the international registry at Berne, they
are entitled to the same recognition and protection from the
military governments of Cuba and the Philippines as are trade-
marks which have been registered in the national registry at
Madrid, or in one of the provincial registeries of the islands.41
§ 280. Loss of trademarks by laches. — The treaty between the
United States and Hungary did not abrogate the right acquired
by the public through the laches of a Hungarian merchant to
use his trademark and trade name, when such trademark and
trade name are secured to him in Hungary by the operation of a
subsequent law of that country. The fact that such a merchant
sold his entire product to a single person, allowing him to dis-
tribute the goods to the trade, cannot defeat the imputation of
knowledge on his part as to the conditions governing the protec-
tion of trademarks.42 "If he wished to hold on to his trade
name and trade label in this country," said Judge Lacombe, "he
should either have taken steps to advise himself as to the situa-
tion, or should have seen to it that his selected vendee, who
shared with him in his monopoly, took proper action to maintain
his rights."43
to infer from these things that the ** Saxlehner v. Eisner, 63 U. S.
article was drawn up with a view to App. 139, 33 C. C. A. 291, 91 Fed.
embracing property recognized by the 536, affirming 88 Fed. 61. A rehear-
Spanish laws which correspond with ing was denied, 91 Fed. 539, 63 U. S.
our patent laws, even if that property App. 145, 33 C. C. A. 291. Long--
was not identical with that recognized continued delay or acquiescence will
by our laws. I see nothing in the defeat the right. Menendez v. Holt,
nature of the right claimed, in that it 128 U. S. 514, 9 Sup. Ct. Eep. 143,
might be objected to as a monopoly, 32 L. ed. 526.
to cause a different interpretation of 43 Saxlehner v. Eisner, supra. On
the treaty or to prevent that article rehearing the court said: ''We are
of the treaty from being constitu- unable to assent to the proposition
tional and obligatory. ' ' that the provisions of the treaty are to
41 Mr. Magoon, Law Officer, Divi- be construed so as to hold that when
sion of Insular Affairs, War Depart- the public in this country has ac-
ment, March 27, 1901, Magoon 's Eep. quired, through the owner's laches,
305. the right to use a trade name and a
321
POLITICAL DEPARTMENT TO PROVIDE MODE.
§ 281
§ 281. Political department to provide mode. — The perfection
of incomplete titles in the ceded territory is a right or duty be-
longing to or imposed upon the political department of the gov-
ernment, and while such duty may by legislative action be placed
upon the courts, it is the primary duty of the political power to
establish proper means for their ascertainment and confirma-
tion.44 Whether a claimant has an absolute ownership or a mere
equitable interest is immaterial. His rights are entitled to pro-
tection, and are not affected by a change of sovereignty and jur-
isdiction. The duty, however, of providing a mode for securing
trademark, such right is abrogated
whenever, by the operation of some
subsequent Hungarian law the trade
name and trademark is secured to him
in Hungary." 91 Fed. 539, 33 C.
C. A. 291.
44 Beard v. Federy, 3 Wall. (U. S.)
478, 18 L. ed. 88; Chouteau v. Eck-
hart, 2 How. (U. S.) 344, 11 L. ed.
293; De la Croix v. Chamberlain, 12
Wheat. (U. S.) 599, 6 L. ed. 741;
Glenn v. United States, 13 How. (U.
S.) 250, 14 L. ed. 133; United States
v. King, 3 How. (U. S.) 773, 11 L.
ed. 824; Tameling v. United States
Freehold etc. Co., 93 U. S. 644, 23 L.
ed. 998; Les Bois v. Bramwell, 4
How. (U. S.) 449, 11 L. ed. 1051;
Burgess v. Gray, 16 How. (U. S.) 48,
14 L. ed. 839; Maguire v. Tyler, 8
Wall. (U. S.) 650, 19 L. ed. 320;
Dent v. Emmeyer, 14 Wall. 308, 20 L.
ed. 838; Craig v. Leitensdorfer, 123
U. S. 189, 8 Sup. Ct. Eep. 85, 31 L.
ed. 114; Knight v. United States
Land Assn., 142 U. S. 161, 12 Sup.
Ct. Eep. 258, 35 L. ed. 974; Ainsa v,
New Mexico etc. E. Co., 175 U. S.
76, 20 Sup. Ct. Eep. 28, 44 L. ed.
78; Thompson v. Los Angeles Farm-
ing etc. Co., 180 U. S. 72, 21 Sup. Ct.
Eep. 289, 45 L. ed. 432 ; United States
v. Baca, 184 U. S. 653, 22 Sup. Ct.
Eep. 541, 46 L. ed. 733; Town v. De-
Treaties — 21
Haven, 5 Saw. 146, 24 Fed. Cas. No.
14,113; Montgomery v. Beavans, 1
Saw. 653, 17 Fed. Cas. No. 9735;
United States v. Flint, 4 Saw. 42, 25
Fed. Cas. No. 15,121; United States
v. Parrott, Me All. 447, 27 Fed. Cas.
Nos. 15,998, 15,999; United States v.
Peralta, 99 Fed. 618, 102 Fed. 1006;
Leese v. Clark, 3 Cal. 17, 20 Cal. 387;
Thompson v. Doaksum, 68 Cal. 593,
10 Pac. 199 ; Chepley v. Farris, 45 Cal.
538; Banks v. Moreno, 39 Cal. 246;
Stevenson v. Bennett, 35 Cal. 432;
Steinbach v. Moore, 30 Cal. 507; De
Arguello v. Greer, 26 Cal. 638; Min-
turn v. Brower, 24 Cal. 644; Eico v.
Spence, 21 Cal. 504; Estrada v. Mur-
phy, 19 Cal. 269; Doe v. Higgins, 39
Ala. 9; Hall v. Eoot, 19 Ala. 378;
Doe v. Jones, 11 Ala. 63; Nixon v.
Houillon, 20 La. Ann. 515; Tucker v.
Burris, 13 La. Ann. 614; Purvis v.
Elarmanson, 4 La. Ann. 421; Lobdell
v. Clark, 4 La. Ann. 99; Charleville
v. Chouteau, 18 Mo. 493; Newman v.
Lawless, 6 Mo. 279; Chavez v. De
Sanchez, 7 N. Mex. 58, 32 Pac. 137;
Catron v. Laughlin, UN. Mex. 604, 72
Pac. 26; Waddingham v. Eobledo, 6
N. Mex. 347, 28 Pac. 662; Grant v.
Jaramillo, 6 N. Mex. 313, 28 Pac. 508;
Cowenia v. Hannah, 3 Or. 465; White
v. Martin, 66 Tex. 341, 17 S. W. 727;
Miller v. Bronson, 50 Tex. 591; Pas-
§ 282] TREATIES OF CESSION. 822
those rights appertains to the political department of the gov-
ernment.45
§ 282. Delegation to judicial department. — Congress may
perform that duty either by itself or it may delegate it to the
judicial department.46 A private claim under the acts of Con-
gress relating to lands in Arizona under a Mexican grant, which
has been reported to Congress by the surveyor-general of the ter-
ritory, cannot be contested in the courts before action by Congress
on his report.47
Unless Congress has otherwise provided, a survey made by the
land department within the scope of its authority of a confirmed
Mexican grant is unassailable in the courts in a collateral pro-
ceeding.48 "It has often been held by this court that the judicial
tribunals, in the ordinary administration of justice, had no juris-
diction or power to deal with these incipient claims, either as
to fixing boundaries by survey, or for any other purpose; but
that claimants were compelled to rely upon Congress, on which
power was conferred by the Constitution to dispose of and make
all needful rules and regulations respecting the territory and
property of the United States. Among these needful regulations
was that of providing that these unlocated claims should be sur-
veyed by lawful authority; a consideration that has occupied
a prominent place in the legislation of Congress from an early
day."49
chal v. Dangerfield, 37 Tex. 273 ; Wai- Co., 148 U. S. 80, 13 Sup. Ct. Eep.
ters v. Jewett, 28 Tex. 192; Peck v. 457, 37 L. ed. 377; De la Croix v.
Moody, 23 Tex. 93; Hamilton v. Chamberlain, 12 Wheat. (U. S.) 599,
A very, 20 Tex. 612; Patton v. Skid- 6 L. ed. 741; Botiller v. Dominguez,
more, 19 Tex. 533; Hancock v. Me- 130 U. S. 238, 9 Sup. Ct. Rep. 525,
Kinney, 7 Tex. 384; Paschal v. Perez, 32 L. ed. 926.
7 Tex. 348; Howard v. Perry, 7 Tex. " Astiazaran v. Santa Eita Min.
259; Hughes v. Lane, 6 Tex. 289; Co., 148 U. S. 80, 13 Sup. Ct. Eep.
.Tones v. Borden, 5 Tex. 410; McMul- 457, 37 L. ed. 377.
len v. Hodge, 5 Tex. 34; Kemper v. 4S Stoneroad v. Stoneroad, 158 U.
Victoria, 3 Tex. 135; Norton v. Gen- S. 248, 15 Sup. Ct. Eep. 822, 39 L.
eral Land Office Commissioner, 2 Tex. ed. 969.
357; Jones v. Menard, 1 Tex. 771; 49 West v. Cochran, 58 U. S. (17
Trimble v. Smithers, 1 Tex. 790. How.) 403, 15 L. ed. 110, per Mr.
45 Tameling v. United States Free- Justice Catron, speaking for the
hold etc. Co., 93 U. S. 644, 23 L. ed. court. Mr. Justice Lamar said : ' ' It is
998. a well-settled rule of law that the
48 Astiazaran v. Santa Eita Min. power to make and correct surveys of
323 INCOMPLETE TITLES NOT MADE COMPLETE. [§ 283
While the supreme court of the United States under the judi-
ciary act of 1789 had no jurisdiction to examine a perfect Spanish
title, and decide whether due effect had been given to it by the
state court, yet if an imperfect Spanish title has been acted on
by Congress, and the supreme court of the United States is called
upon to review the decision of a state court, the Spanish title
must be examined for the purpose of determining what effect
was produced upon it by the act of Congress.50
§ 283. Incomplete titles not made complete. — The treaty by
which Louisiana was acquired did not make incomplete titles
complete. The government of the United States became the
successor to the crown of Spain in its powers and duties as to
confirmations of such titles, and might select between two ad-
verse claimants and give a perfect title to one and absolutely
exclude the other.51 The local courts of a territory have no
power to adjudicate the title claimed under a Spanish grant
when the title to the property under the treaty of Guadalupe
Hidalgo and the act of Congress was sub judice, the claimants
proceeding under the act before the surveyor-general and Con-
gress.52 Until Congress gives to inchoate rights of imperfect
obligation a vitality and an effect which they did not before
possess, they are of such a nature that they cannot be recognized
nor enforced in a court of law or equity. When confirmation
was made by Congress, such rights took their effect wholly from
the act of confirmation, and not from any element derived from
antecedent sovereignty which entered into their existence, and
hence the title of an elder confirmee was better than that of a
younger, without regard to the date of the origin of their re-
spective claims or the circumstances by which they were at-
tended.53
the public lands belongs exclusively 30 Chouteau v. Eckhart, 2 How. (U.
to the political department of the gov- S.) 344, 11 L. ed. 293.
ernment, and that the action of that 51 Chouteau v. Eckhart, 2 How. (U.
department, within the scope of its S.) 344, 11 L. ed. 293.
authority, is unassailable in the courts 52 Eio Arriba Land & Cable Co. v.
except in a direct proceeding." United States, 167 U. S. 298, 17 Sup.
Knight v. United Land Assn., 142 U. Ct. Eep. 875, 42 L. ed. 175.
S. 161, 12 Sup. Ct. Eep. 258, 35 L. ed. ra Dent v. Emmeger, 14 Wall. 308,
974; Cragin v. Powell, 128 U. S. 691, 20 L. ed. 838.
9 Sup. Ct. Eep. 203, 32 L. ed. 566.
§§ 284, 285] TREATIES OF CESSION. 324
§ 284. Grant deemed abandoned. — If the land is held by a
title imperfect or equitable merely, under a Mexican coloniza-
tion grant in the usual form, which required approval of the De-
partmental Assembly, and judicial possession from the magistrate
of the vicinage, and which was for a certain quantity of land
within exterior limits embracing a much greater quantity, the
grant, unless it is presented for confirmation to the United States
Board of Land Commissioners, will be deemed abandoned.
Whatever may have been its original validity, the courts will
treat it as nonexistent. When a person bases a claim upon the
unconfirmed grant, the land will be regarded as public land of the
United States.54 It is only by a patent, or a survey confirmed
in accordance with the act of Congress, that the claimant of a
Mexican grant, whose title is not perfect, acquires a perfect title.55
§ 285. Collateral attack. — A patent thus issued for a Mexican
grant of land becomes a record equally binding the government,
the claimant and those deriving title through him. It is not sub-
ject to collateral attack, but can be assailed only by direct pro-
ceedings instituted for that purpose.56 A concession will not
confer upon the grantee a perfect title to any specific parcel of
land in the absence of anything in the grant or in the docu-
ments to which it refers by which to fix the lines of one of the
sides of the tract intended to be conveyed, or to determine the
particular quantity. It must appear, on the face of the instru-
ment, or by the aid of its descriptive portions, not only that
it was intended to grant a specific parcel, but the description
must be such that the particular tract intended to be granted
can, with reasonable certainty, be identified.57 A Mexican grant
is inchoate or imperfect where a survey, or judicial possession
by competent authority, was necessary in order to attach it to
any specific tract of land.58 Where the United States has recog-
nized and confirmed the validity of a claim under a Mexican
grant, and issued a patent to the claimant, the rights of the
54 Estrada v. Murphy, 19 Cal. 248. 5T Banks v. Moreno, 39 Cal. 233.
55 Chipley v. Farris, 45 Cal. 527. 58 Steinbach v. Moore, 30 Cal. 498.
56 Chipley v. Farris, 45 Cal. 527.
325 PERFECTED CLAIMS BEFORE LAND COMMISSION. [§ 286
patentee cannot be questioned, either in law or in equity, by an-
other who relies solely upon an opposing unconfirmed grant from
the Mexican government. Even if the patentee obtained a con-
firmation of his claim with knowledge of the claim of the other,
no equities could arise in favor of the latter from such knowledge,
nor was the patentee affected by such knowledge with a notice
of any equitable rights of the other claimant.59 But it was
necessary to submit only inchoate and imperfect titles for con-
firmation. Change of sovereignty did not affect titles which had
been acquired and established from the governments of either
Spain or Mexico. Persons holding perfect titles to lands in
California were protected by the treaty in their ownership and
enjoyment to the same extent as if no change in sovereignty had
occurred. On this ground it was held in the early cases that a
failure to present their claims for confirmation did not cause a
forfeiture of their lands to the governments.60 The provisions of
the treaty under which California was acquired, it was held in
the early cases, operated as a confirmation in praesenti of all per-
fect titles to lands dependent upon Spanish or Mexican grants
made prior to the ratification of the treaty.61
§ 286. Perfected claims before land commission. — The supreme
court of the United States held that there was nothing in the
language of the act creating the land commission to imply any
exclusion of perfected claims from the jurisdiction of the com-
mission. The language of the statute contained no hint or at-
tempt at any distinction as to the claims to be presented between
perfect claims and those wrhich were imperfect in their character.
The court held that there was no reason in the policy upon which
the statute was founded and the purposes it was intended to sub-
serve why a distinction should be made between the two classes
of claims. The statute was not intended to adjust titles between
private persons asserting claim to the same lands, but its main
purpose was to separate and distinguish the lands owned by the
United States as property, which the government could sell to
others either absolutely or by extending to them pre-emption
59 Kico v. Spence, 21 Cal. 504. De Toro v. Bobinson, 91 Cal. 371, 27
60 Minturn v. Brower, 24 Cal. 644. Pac. 671 ; Anzar v. Miller, 90 Cal. 342,
But see the later cases of Tuffree v. 27 Pac. 299.
Polhemus, 108 Cal. 670, 41 Pac. 808; €1 Minturn v. Brower, 24 Cal. 644.
§§ 287, 288] TREATIES OF CESSION. 326
rights, or which might be entirely reserved from public sale, from
those lands which belonged to private persons either in a legal
or equitable sense, under a claim of right derived from the gov-
ernments of Spain or Mexico. The later California decisions ac-
cepted this rule.62 As long, however, as a grant of land in Cali-
fornia made by Mexico was inchoate or imperfect, the Mexican
government had the power to determine the validity of the grant
and give it precise location as long as the territory remained
under the dominion of that government. This power passed to
the United States upon the cession of California, and when the
power is exercised by the United States the grantee is bound by
its decision.63
§ 287. Measuring of land. — If, while the ceded territory was
under the dominion of Mexico, a grant of land required as one
of its conditions that the land should be measured by the proper
officer, and judicial possession should then be given to the gran-
tee, the legal title remained in the Mexican government until such
measurement and delivery of possession. By a grant with such
a condition, the grantee acquired only an imperfect and inchoate
title.64
§ 288. Titles complete at time of cession. — Titles which have
become vested are not affected by the cession. Only the sov-
ereign is displaced, but private property is not confiscated and
private rights are not destroyed. The relations of the people to
each other are not altered, although their allegiance may be.
When territory is ceded by treaty, it is not understood that prop-
erty belonging to its inhabitants is affected, because lands previ-
ously granted are not within the power of one sovereignty to
62 Botiller v. Dominguez, 130 U. S. Eobinson, 91 Cal. 376, 27 Pac. 673;
247, 9 Sup. Ct. Eep. 525, 32 L. ed. De la Guerra v. Santa Barbara, 117
926, reversing 74 Cal. 457, 16 Pac. Cal. 533, 49 Pac. 735; Harvey v. Bar-
241; Astiazaran v. Santa Eita Min, ker, 126 Cal. 272, 58 Pac. 696; Ainsa
Co., 148 U, S. 82, 13 Sup. Ct. Eep. 457, v. New Mexico etc. E. E. Co., 175 U.
37 L. ed. 376; Stoneroad v. Stoneroad, S. 84, 20 Sup. Ct. Eep. 33, 44 L. ed.
158 U. S. 248, 15 Sup. Ct. Eep. 825, 78 ; Tuffree v. Polhemus, 108 Cal. 675,
39 L. ed. 969; Houston v. San Fran- 41 Pac. 806.
cisco, 47 Fed. 339 ; Anzar v. Miller, * De Arguello v. Greer, 26 Cal. 615.
90 Cal. 343, 27 Pac. 299; De Toro v. w De Arguello v. Greer, 26 Cal. 615.
327
TITLES COMPLETE AT TIME OF CESSION.
[§ 288
transfer to another.65 Still, such titles may require confirmation
by the political power or some agency appointed or created by
it.66
65 United States v. Percheman, 7
Pet. (U. S.) 52, 8 L. ed. 604; United
States v. Arredondo, 6 Pet. (U. S.)
692, 8 L. ed. 547; United States v.
Waterman, 14 Pet. (U. S.) 478, 10
L. ed. 550; United States v. Wiggins,
14 Pet. (U. S.) 334, 10 L. ed. 481;
United States v. King, 3 How. (U.
S.) 773, 11 L. ed. 824, 7 How. (U. S.)
883, 11 L. ed. 829; United States v.
Eeynes, 9 How. (U. S.) 127, 13 L.
ed. 74; Barry v. Gamble, 3 How. (U.
S.) 32, 11 L. ed. 479; Doe v. Eslava,
9 How. (U. S.) 421, 13 L. ed. 200;
Doe v. Mobile, 9 How. (U. S.) 451,
13 L. ed. 212; United States v.
Power, 11 How. (U. S.) 570, 13 L.
ed. 817; United States v. Philadelphia,
11 How. (U. S.) 609, 13 L. ed. 834;
United States v. Eoselius, 15 How.
(U. S.) 36, 14 L. ed. 590; United
States v. Castant, 12 How. (U. S.)
437, 13 L. ed. 1056; United States v.
McCullagh, 13 How. (U. S.) 216, 14
L. ed. 118; United States v. Pillerin,
13 How. (U. S.) 9, 14 L. ed. 28;
United States v. D'Auterieve, 15
How. (U. S.) 14, 14 L. ed. 580, 101
U. S. 700, 25 L. ed. 869; United
States v. Ducros, 15 How. (U. S.) 38,
14 Li. ed. 591; Ainsa v. New Mexico
etc. E. Co., 175 U. S. 76, 20 Sup. Ct.
Eep. 28, 44 L. ed. 78; Maguire v.
Taylor, 8 Wall. (U. S.) 650, 19 L.
ed. 320; Smyth v. New Orleans Canal
Co., 93 Fed. 899, 35 C. C. A. 646;
Trenier v. Stewart, 101 U. S. 797,
25 L. ed. 1021; Muse v. Arlington
Hotel Co., 68 Fed. 637; Mitchel v.
United States, 9 Pet. 734, 9 L. ed.
291 ; Strother v. Lucas, 12 Pet. 436, 9
L. ed. 1147; United States v. Clarke,
16 Pet. 232, 10 L. ed. 947; Baldwin
v. Goldfrank, 88 Tex. 249, 31 S. W.
1064; State v. Sais, 47 Tex. 307;
Swift v. Herrera, 9 Tex. 263; Han-
cock v. McKinney, 7 Tex. 384; Ed-
wards v. James, 7 Tex. 372; Smith
v. State, 5 Tex. 397; Hardy v. De
Leon, 5 Tex. 211; McMullen v. Hodge,
5 Tex. 34; Jones v. Menard, 1 Tex.
771; White v. Wells, 5 Mart. (O. S.)
652; Sanchez v. Gonzales, 11 Mart.
(O. S.) 207; Murdock v. Gurley, 5
Eob. (La.) 457; Lavergne v. Elkins,
17 La. 220; Kittridge v. Hebert, 9
La. Ann. 154; Nixon v. Houillon, 20
La. Ann. 515; McGee v. Doe, 9 Fla.
382; Doe v. Eoe, 13 Fla. 602; Keech
v. Enriquez, 28 Fla. 597, 10 South. 91 ;
Wilson v. Smith, 5 Yerg. (Tenn.)
379.
68 Thompson v. Los Angeles Farm-
ing Co., 180 U. S. 72, 21 Sup. Ct. Eep.
289, 45 L. ed. 432; Baker v. Harvey,
181 U. S. 481, 21 Sup. Ct. Eep. 690,
45 L. ed. 963; Ainsa v. New Mexico
etc. E. Co., 175 U. S. 76, 20 Sup. Ct.
Eep. 28, 44 L. ed. 78; Botiller v.
Dominguez, 130 U. S. 238, 9 Sup. Ct.
Eep. 525, 32 L. ed. 926; More v.
Steinbach, 127 U. S. 70, 8 Sup. Ct.
Eep. 1067, 32 L. ed. 51; Fremont v.
United States, 17 How. (U. S.) 553,
15 L. ed. 241; United States v. Fos-
satt, 21 How. (U. S.) 445, 16 L. ed.
186; Tuffree v. Polhemus, 108 Cal.
670, 41 Pac. 806; De Toro v. Eobin-
son, 91 Cal. 371, 27 Pac. 671; Anzar
v. Miller, 90 Cal. 342, 27 Pac. 299;
Houston v. San Francisco, 47 Fed.
337. But see Thompson v. Doaksum,
68 Cal. 597, 10 Pac. 199 ; Minturn v.
Brower, 24 Cal. 644; Leese v. Clark,
20 Cal. 387; Gregory v. McPherson,
13 Cal. 562; Gunn v. Bates, 6 Cal.
263; Eeynolds v. West, 1 Cal. 322.
§§ 289, 290] TREATIES OF CESSION. 328
§ 289. Act of Congress in conflict with treaty of cession. — It
is the duty of the courts to follow the statutory enactments of
its own government when they conflict with a treaty of cession.
If the government of the United States chooses to disregard the
provisions of a treaty with a foreign nation, the courts have no
power of constituting themselves instrumentalities for enforcing
such provisions.67
§ 290. Mexican titles in California after treaty.— On March 3,
1851, Congress passed an act entitled "An act to ascertain and
settle the private land claims in the state of California," which
provided for the appointment of three commissioners. The act
provided that every person claiming lands in California, by virtue
of any right or title derived from the Spanish or Mexican govern-
ment, should present the same to the commissioners with such
evidence, documentary and oral, as he relied upon. The commis-
sioners were to decide upon the validity of the claim and report
the same with the reasons for the decision to the district attorney
of the United States for the district for which the decision was
rendered. In all cases of confirmation or rejection of any claim,
either the claimant or the United States attorney, in behalf of
the United States, might present a petition to the federal district
court, praying it to review the decision of the commission, and
to decide on the validity of the claim. The court, the act pro-
vided, should proceed to render judgment upon the pleadings
and evidence, and was authorized to grant an appeal to the
Possessory rights may be protected 247, 9 Sup. Ct. Eep. 525, 32 L. ed.
prior to confirmation. Eeynolds v. 926, reversing 74 Cal. 457, 16 Pac.
West, 1 Cal. 322; Sunol v. Hepburn, 241; Astiazaran v. Santa Eita Min.
1 Cal. 255 ; Gunn v. Bates, 6 Cal. 263 ; Co., 148 U. S. 82, 13 Sup. Ct. Eep.
Soto v. Kroder, 19 Cal. 87; Wilson v. 457, 37 L. ed. 376; Stoneroad v. Stone-
Smith, 5 Yerg. (Tenn.) 379; Pino v. road, 158 U. S. 248, 15 Sup. Ct. Eep.
Hatch, 1 N. Mex. 125; Chaves v. Whit- 825, 39 L. ed. 969; Eio Arriba Land
ney, 4 N. Mex. 178, 16 Pac. 608; Le etc. Co. v. United States, 167 U. S.
Eoy v. Wright, 4 Saw. (U. S.) 530, 309, 17 Sup. Ct. Eep. 880, 42 L. ed.
15 Fed. Gas. No. 8273; Tobin v. Walk- 179. See, also, Chavez v. Chavez De
inshaw, McAll. (U. S.) 151, 23 Fed. Sanchez, 7 N. Mex. 82, 32 Pac. 144;
Cas. No. 14,069; United States v. Lockhart v. Willis, 9 N. Mex. 348, 54
Parrott, McAll. (U. S.) 271, 27 Fed. Pac. 337; Apis v. United States, 88
Cas. No. 15,998. Fed. 936; Grant v. Jaramillo, 6 N.
67 Botiller v. Dominguez, 130 U. S. Mex. 322, 28 Pac. 511.
329 EFFECT OF THESE ACTS. [§ 291
supreme court of the United States. The commissioners and the
courts "in deciding on the validity of any claim brought before
them under the provisions of this act shall be governed by the
treaty of Guadalupe Hidalgo, the law of nations, usages, and
customs of the government from which the claim is derived, the
principles of equity, and the decisions of the supreme court of the
United States, so far as they are applicable."
It was further provided that all lands the claims to which
should be finally rejected by the commissioners, or should be
finally decided to be invalid by the courts, and all lands the
claims to which should not be presented to the commissioners
within two years after the date of the act, should be considered
a part of the public domain of the United States.68 In 1860 the
act was amended by providing that whenever the surveyor-general
should have caused any private land claim to be surveyed, he
should give notice of the same by publication, and after the
lapse of a certain time, the district courts were authorized, upon
the application of any person interested, to make an order requir-
ing the survey to be returned into court for examination and ad-
judication. On the return of the survey to the court, the parties
were authorized to proceed to take testimony as to any matters
necessary to show the true and proper location of the claim, and
if, in the opinion of the court, the location and survey are erro-
neous, the court was authorized to set it aside or to correct and
modify it.69
§ 291. Effect of these acts. — It would be beyond the scope of
this work to notice, except in the briefest possible manner, the
various phases of this legislation, or to enter at length into the
various cases decided by the courts. It may be said, however,
that by these acts the land that was subject to claims derived
from Mexico or Spain was reserved from the public domain until
all the parties interested had a full opportunity to present their
claims for adjudication.70 Parties interested in a claim are au-
68 9 Stats, at Large, 931. Carr, 125 U. S. 618, 8 Sup. Ct. Eep.
69 Stats. 1860; 12 Stats, at Large, 1228, 31 L. ed. 844; Middleton v.
33. Low, 30 Cal. 596; Foss v. Hinkell, 78
70 Newhall v. Sawyer, 92 U. S. 761, Cal. 158, 20 Pac. 393. See for vari-
23 L. ed. 769; Hosmer v. Wallace, 97 ous cases under these statutes, Beard
U. S. 575, 24 L. ed. 1130; Doolan v. v. Federy, 3 Wall. (U. S.) 490, 18 L.
§ 292] TREATIES OF CESSION. 330
thorized to employ the name of the original claimant in proceed-
ings to establish the grant.71
Nothing more was contemplated by the act to settle Mexican
claims in California than to separate lands owned by individuals
from the public domain, and, therefore, jurisdiction exists in
courts of equity to relieve against fraud or mistake, which juris-
diction may be exercised where a patent has been procured by
one which belonged to another at the time of the issue of the
patent. Where the relief sought is based upon a charge of
secret fraud, and within a reasonable time after the discovery
of the fraud suit was instituted, the defense of laches and the
statute of limitations cannot prevail, nor can persons having
notice of the adverse title at the time of purchase be deemed in-
nocent purchasers.72
§ 292. Decree has effect of judgment. — Generally, the de-
cree has the effect of a judgment. If no appeal is taken within
the period fixed by statute, or if the decision is affirmed on ap-
peal, the decree is conclusive and binding, both upon the claimant
and the United States and their privies.73 The patent, when
ed. 88; Peralta v. United States, 3 Cal. 248; Rush v. Casey, 39 Cal. 339;
Wall. (U. S.) 434, 18 L. ed. 221; Taylor v. Escadon, 50 Cal. 428; Hast-
Townsend v. Greeley, 5 Wall. (U. ings v. McGoogin, 27 Cal. 85; Durfee
S.) 335, 18 L. ed. 547; More v. v. Plaisted, 38 Cal. 80; Wormouth v.
Steinbach, 127 U. S. 70, 8 Sup. Ct. Gardner, 112 Cal. 506, 44 Pac. 806;
Eep. 1067, 32 L. ed. 51; United States Watriss v. Eeed, 99 Cal. 134, 33 Pac.
v. Fossatt, 21 How. (U. S.) 445, 16 775; Gresar v. McDowell, 6 Wall. (U.
L. ed. 186; Swat v. United States, S.) 363, 18 L. ed. 863; United States
Hoffm. Land Cas. (U. S.) 230, 23 v. Ritchie, 17 How. (U. S.) 525, 15
Fed. Cas. No. 13,680; Boulden v. L. ed. 236; United States v. Pacheco,
Phelps, 12 Saw. (U. S.) 316, 30 Fed. 20 How. (U. S.) 261, 15 L. ed. 820;
547; Frisbie v. Whitney, 9 Wall. (U. Yturbide v. United States, 22 How.
S.) 187, 19 L. ed. 668; Atherton v. (U. S.) 290, 16 L. ed. 342; United
Fowler, 96 U. S. 513, 24 L. ed. 732; States v. Morillo, 1 Wall. (U. S.) 706,
Beley v. Naphtaly, 169 U. S. 353, 18 17 L. ed. 626.
Sup. Ct. Rep. 354, 42 L. ed. 775; n United States v. Sutter, 21 How.
United States v. Castillero, 2 Black (U. S.) 170, 16 L. ed. 119.
(U. S.), 17, 17 L. ed. 360; Mora v. T2 Meader v. Norton, 11 Wall. (U.
Foster, 3 Saw. 469, 17 Fed. Cas. No. S.) 442, 20 L. ed. 184.
9784; Hosmer v. Wallace, 97 U. S. « Malarin v. United States, 1 Wall.
575, 24 L. ed. 1130; Hays v. Steiger, 282, 17 L. ed. 594; United States v.
156 U. S. 387, 15 Sup. Ct. Rep. 412, Fossatt, 21 How. (U. S.) 445, 16 L.
30 L. ed. 463 ; Estrada v. Murphy, 19 ed. 186 ; Boyle v. Hinds, 2 Saw. 527,
331
OTHER STATUTES.
[§ 293
issued, is to be considered as a surrender by the United States
of all interest in the land described in the patent.74 The con-
firmation of a Mexican grant as well as the issue of a patent there-
under is operative in favor of the confirmee only and of those
who claim under him. It establishes the legal title, but if in the
presentation of the claim the confirmee acted in a fiduciary capac-
ity, or with the intention of defrauding the real owner, the trans-
fer of the legal title to the person equitably entitled to hold it will,
upon a proper proceeding, be decreed by a court of equity.75 A
bill in chancery to set aside, on the ground of fraud, a judgment
or decree between the same parties rendered by a court of com-
petent jurisdiction will be sustained only for frauds extrinsic or
collateral to the matter tried by the first court. A fraud which
was an issue in the first suit cannot be considered.76
§ 293. Other statutes. — In 1854 Congress passed an act relat-
ing to public lands in New Mexico, which in section 8 provided
3 Fed. Gas. No. 1759; United States
v. Payson, 1 Cal. Law J. 325, 27 Fed.
Gas. No. 16,016; San Francisco v.
United States, 4 Saw. 553, 21 Fed.
Gas. No. 12,316; Mott v. Smith, 16
Cal. 550; Bernal v. Lynch, 36 Cal.
143; Gregory v. McPherson, 13 Cal.
574; Kimball v. Semple, 25 Cal. 454;
Soto v. Kroder, 19 Cal. 87; Clark v.
Lockwood, 21 Cal. 220; Mahoney v.
Van Winkle, 21 Cal. 576.
74 Beard v. Federy, 3 Wall. 478, 18
L. ed. 88; United States v. Conway,
175 U. S. 60, 20 Sup. Ct. Eep. 13, 44
L. ed. 72; Manning v. San Jacinto
Tin Co., 7 Saw. 418, 9 Fed. 726; Hay-
ner v. Stanly, 8 Saw. 214, 13 Fed.
217; Tripp v. Spring, 5 Saw. 209, 24
Fed. Gas. No. 14,180; Steinback v.
Perkins, 58 Cal. 86; Waterman v.
Smith, 13 Cal. 373; Pioche v. Paul,
22 Cal. Ill; Waterman v. Smith, 13
Cal. 373; Hart v. Burnett, 15 Cal.
530 : Miller v. Dale, 44 Cal. 578 ; Cruz
v. Martinez, 53 Cal. 239; Carey v.
Brown, 58 Cal. 180; Turner v. Don-
nelly, 70 Cal. 604, 12 Pac. 469; Adair
v. White, 85 Cal. 313, 24 Pac. 663.
75 De Castrc v. Fellom, 135 Cal.
225, 67 Pac. 142. And see Los An-
geles v. Pomeroy, 125 Cal. 420, 58
Pac. 69; Byrne v. Alas, 74 Cal. 639,
16 Pac. 523; Mound City Land etc.
Assn. v. Philip, 64 Cal. 497, 2 Pac.
270; McDonald v. McCoy, 121 Cal.
55, 53 Pac. 421; Sherman v. McCarthy,
57 Cal. 507; Hartley v. Brown, 51
Cal. 465 ; Schmitt v. Giovanari, 43 Cal.
617; O'Connell v. Dougherty, 32 Cal.
462 ; Salmon v. Symon'ds, 30 Cal. 301 ;
Emeric v. Penniman, 26 Cal. 124; Es-
trada v. Murphy, 19 Cal. 272; Clark
v. Lockwood, 21 Cal. 220; United
States v. Covilland, 1 Black (U. S.),
339, 17 L. ed. 40; Carpentier v. Mont-
gomery, 13 Wall. (U. S.) 480, 20 L.
ed. 698; Santa Clara Min. Assn. v.
Quicksilver Min. Co., 8 Saw. (U. S.)
330, 17 Fed. 657; Miller v. Dale, 92
U. S. 473, 23 L. ed. 735.
16 United States v. Throckmorton,
98 U. S. 61, 25 L. ed. 93. See, also,
§ 293] TREATIES OF CESSION. 332
that: "It shall be the duty of the Surveyor-General, under such
instructions as may be given by the Secretary of the Interior, to
ascertain the origin, nature, character, and extent of all claims
to lands under the laws, usages, and customs of Spain and Mexico ;
and, for this purpose, may issue notices, summon witnesses, ad-
minister oaths, and do and perform all other necessary acts in
the premises. He shall make a full report on all such claims
as originated before the cession of the territory to the United
States by the treaty of Guadalupe Hidalgo, of eighteen hundred
and forty-eight, denoting the various grades of title, with his
decision as to the validity or invalidity of each of the same under
the laws, usages, and customs of the country before its cession
to the United States; and shall also make a report in regard to
all pueblos existing in the Territory, showing the extent and
locality of each, stating the number of inhabitants in the said
pueblos, respectively, and the nature of their titles to the land.
Such report to be made according to the form which may be pre-
scribed by the Secretary of the Interior; which report shall be
laid before Congress for such action thereon as may be deemed
just and proper, with a view to confirm bona fide grants, and
give full effect to the treaty of eighteen hundred and forty-eight
between the United States and Mexico; and, until final action
of Congress on such claims, all lands covered thereby shall be
reserved from sale or other disposal by the Government, and shall
not be subject to the donations granted by the previous provisions
of this act."77
In 1870 Congress provided that it should be the duty of the
surveyor-general of Arizona, "under such instructions as may be
given by the Secretary of the Interior, to ascertain and report
upon the origin, nature, character and extent of the claims to
lands on said territory under the laws, usages and customs of
Spain and Mexico ; and for the purpose he shall have all the
powers conferred, and shall perform all the duties enjoined upon
the surveyor-general of New Mexico by the eighth section" of
the act above cited.78 In 1891 Congress established a court to be
San Pedro etc. Co. v. United States, " 10 U. S. Stats, at Large, 309,
146 U. S. 120, 13 Sup. Ct. Kep. 94, sec. 8.
J56 L. ed. 912; United States v. San 78 16 Stats, at Large, 304.
Jacinto Tin Co., 125 U. S. 273, 8 Sup.
Ct. Kep. 850, 31 L. ed. 747.
333 CEDED TERRITORY AS PART OF UNITED STATES. [§ 294:
called the court of private land claims, to have jurisdiction in
the hearing and decision of private land claims ''within the limits
of the territory derived by the United States from the Republic
of Mexico and now embraced within the territories of New Mexico,
Arizona or Utah, or within the states of Nevada, Colorado or
Wyoming, by virtue of any such Spanish or Mexican grant, con-
cession, warrant or survey as the United States are bound to
recognize and confirm by virtue of the treaties of cession of
said country by Mexico to the United States, which at the date
of the passage of this act have not been confirmed by act of
Congress, or otherwise decided upon by lawful authority, and
which are not already complete and perfect. " 79 It was held that
this court had no jurisdiction over a claim for the remainder of
the land included in an alleged Mexican grant, which has been
allowed only in part by act of Congress.80 Nor did the act give
the court jurisdiction over an inchoate claim incapable of asser-
tion as an absolute right against the government of either Spain
or Mexico, and subject to the uncontrolled discretion of Con-
gress.81
§ 294. Preventing incorporation of ceded territory into United
States. — The treaty-making power may insert in the treaty of ces-
sion conditions which will preclude, without the consent of Con-
gress, the incorporation into the United States of territory ac-
quired by treaty. If the treaty is not repudiated by Congress,
79 26 Stats, at Large, 854, March v. United States, 171 U. S. 220, 18
3, 1891. Sup. Ct. Kep. 840, 43 L. ed. 142;
80 Las Animas Land Grant Co. v. United States v. Camou, 171 U. S.
United States, 179 U. S. 201, 21 Sup. 277, 18 Sup. Ct. Eep. 855, 43 L. ed.
Ct. Rep. 92, 45 L. ed. 153. 163; 184 U. S. 572, 22 Sup. Ct. Eep.
81 United States v. Santa Fe, 165 505, 46 L. ed. 694; Perrin v. United
U. S. 675, 17 Sup. Ct. Rep. 472, 41 L. States, 171 U. S. 292, 18 Sup. Ct. Rep.
ed. 874. For various other cases in- 861, 43 L. ed. 169; Real de Dolores
volving this act, see Ainsa v. United Del Oro v. United States, 175 U. S. 71,
States, 161 U. S. 208, 16 Sup. Ct. Rep. 20 Sup. Ct. Rep. 17, 44 L. ed. 76;
544, 40 L. ed. 673; United States v. Ainsa v. New Mexico etc. R. Co., 175
Sandavol, 167 U. S. 278, 17 Sup. Ct. U. S. 76, 20 Sup. Ct. Rep. 28, 44 L. ed.
Rep. 868, 42 L. ed. 168; Cessna v. 78; United States v. Chavez, 175 U. S.
United States, 169 U. S. 165, 18 Sup. 509, 20 Sup. Ct. Rep. 159, 44 L. ed.
Ct. Rep. 314, 42 L. ed. 702; United 255; United States v. Martinez, 184
States v. Conway, 175 U. St 60, 20 U. S. 441, 22 Sup. Ct. Rep. 422, 46
Sup. Ct. Rep. 159, 44 L. ed. 72; Ely L. ed. 632; Reloj Cattle Co. v. United
§ 295] TREATIES OF CESSION. 334
such conditions will have the force of the law of the land. The
treaty by which the United States acquired Porto Rico and other
territory providing that the civil rights and political status of
the native inhabitants should be determined by Congress, mani-
fested an express purpose to leave the status of the territory
to the determination of Congress, but also to prevent the treaty
from having a contrary effect.82
Congress has power by legislation to give effect to the treaty
by which the United States agreed to assume and discharge the
obligations that might, under international law, result from its
occupation of Cuba or the protection of life and property in that
island.83
§ 295. Inhabitants of ceded territory as citizens. — The treaties
by which Louisiana, Florida, California and Alaska were acquired
made the native-born inhabitants of those territories citizens of
the United States. The treaty of Paris, by which Porto Rico
was acquired, contained no such provision, but, on the contrary,
declared: "The civil rights and political status of the native in-
habitants of the territories hereby ceded to the United States
shall be determined by the Congress. ' ' Congress passed, in April,
1900, an act in conformity with this clause in the treaty declar-
States, 184 U. S. 624, 22 Sup. Ct. Rep. Central Colorado Imp. Co. v. Pueblo
499, 46 L. ed. 721; Ainsa v. United County, 95 U. S. 259, 24 L. ed. 495;
States, 184 U. S. 639, 22 Sup. Ct. Eep. Maxwell Land Grant Case, 121 U. S.
507, 46 L. ed. 727; United States v. 325, 7 Sup. Ct. Rep. 1015, 30 L. ed.
Baca, 184 U. S. 653, 22 Sup. Ct. Rep. 949; 122 U. S. 365, 7 Sup. Ct. Rep.
541, 46 L. ed. 733; United States v. 1271, 30 L. ed. 1211; Russell v. Max-
Green, 185 U. S. 256, 22 Sup. Ct. Rep. well Land Grant Co., 158 U. S. 253,
640, 46 L. ed. 898 ; Lockhart v. Wills, 15 Sup. Ct. Rep. 827, 39 L. ed. 971 ;
9 N. Mex. 263, 50 Pac. 318. Maese v. Herman, 183 U. S. 572, 22
For decisions under other acts relat- Sup. Ct. Rep. 91, 46 L. ed. 335 ;
ing to land claims in Arizona and United States v. Cleveland etc. Cattle
New Mexico, see Pinkerton v. Ledoux, Co., 33 Fed. 323 ; Chaves v. Whitney,
129 U. S. 346, 9 Sup. Ct. Rep. 399, 4 N. Mex. 178, 16 Pac. 608; Colorado
32 L. ed. 706; Tameling v. United Fuel Co. v. Maxwell Land Grant Co.,
States Freehold etc. Co., 93 U. S. 644, 22 Colo. 71, 43 Pac. 556.
23 L. ed. 998; Interstate Land Co. * Downes v. Bidwell, 182 U. S. 244,
v. Maxwell Land Grant Co., 139 U. Rl Sup. Ct. Rep. 770, 45 L. ed. 1088.
S. 569, 11 Sup. Ct. Rep. 656, 35 L. ed. « Neely v. Henkel, 180 U. S. 109,
278; Shaw v. Kellogg, 170 U. S. 312, 21 Sup. Ct. Rep. 302, 45 L. ed. 448.
18 Sup. Ct. Rep. 632, 42 L. ed. 1050;
335 FOREIGN CORPORATIONS NOT SUBJECTS. [§§ 296, 297
ing : * ' That all inhabitants continuing to reside therein who were
Spanish subjects on the eleventh day of April, 1899, and then
resided in Porto Rico, and their children born subsequent thereto,
shall be deemed and held to be citizens of Porto Rico, and as
such entitled to the protection of the United States (excepting
such as had preserved their allegiance to Spain), and they, to-
gether with such citizens of the United States as may reside in
Porto Rico, shall continue a body politic under the name of 'The
People of Porto Rico,' with governmental powers as hereinafter
conferred, and with power to sue and be sued as such." An
unmarried woman who arrived in the United States in 1902, a
native of Porto Rico, was detained at the emigrant station, exam-
ined by a board of inquiry, and excluded from admission into
the United States, upon the ground that she was liable to become
a public charge. She presented a petition for a writ of habeas
corpus, and the sole question before the court was, Was she a
citizen or an alien ? The court held that the act of Congress did
not operate to naturalize her as a citizen of the United States,
and that she remained an alien.84
§ 296. Foreign corporations not subjects. — The rule has been
recognized that corporations are not subjects within the mean--
ing of treaties. A corporation organized in Great Britain, hav-
ing its principal place of business in that country, is not a sub-
ject of that country within the meaning of a treaty which gives
to the subjects of that country the right to do business in any
of the states of the Union on the same terms as native citizens.85
§ 297. Effect of treaty on dam in Rio Grande. — It was claimed
in a suit brought by the United States to restrain an irrigation
company from constructing a dam across the Rio Grande river
in the territory of New Mexico, and appropriating the waters of
that stream for the purposes of irrigation that the provision of
the treaty of Guadalupe Hidalgo of 1848, securing the free and
unobstructed navigation of that river, was violated. It was held
in the lower court that there was no violation of the treaty, and
in the supreme court of the United States it was held that the
treaty was not involved. In the lower court it was decided that
84 In re Gonzalez, 118 Fed. 941. » Scottish Union etc. Ins. Co. v.
,Herriott, 109 Iowa, 606, 80 N. W. 665.
'§ 297]
TREATIES OF CESSION.
336
the dam was not an obstruction to navigation, but this ruling was
reversed by the supreme court of the United States holding that
the jurisdiction of the general government over interstate com-
merce and its natural highways places in that government the
right to take all necessary measures to preserve the navigability
of the navigable watercourses of the country, and that the pro-
hibition against obstructing the navigable capacity of any waters
included an obstruction not only in that part of the stream that
was navigable, but also anything destroying the navigable capac-
ity of a navigable stream wherever or however done.86 The pres-
ervation of the navigable waters of the United States for the
86 United States v. Rio Grande Dam
& I. Co?, 174 U. S. 690, 19 Sup. Ct.
Eep. 770, 43 L. ed. 1136. The case in
the lower court is reported in 9 N. Mex.
292, 51 Pac. 674. So far as the ques-
tion of treaty was involved, Mr. Jus-
tice Brewer said: " Neither is it
necessary to consider the treaty stipu-
lations between this country and Mex-
ico. It is true that the Eio Grande,
for several hundred miles above its
mouth, forms the boundary between
this country and Mexico, and that the
seventh article of the treaty between
the United States and Mexico of
February 2, 1848 (9 Stats, at Large
928), stipulates that 'the Eiver Gila
and the part of the Eio Bravo del
Norte lying below the southern
boundary of New Mexico being agree-
ably to the fifth article, divided in the
middle between the two Eepublics, the
navigation of the Gila and of the
Bravo below said boundary shall be
free and common to the vessels and
citizens of both countries, and neither
shall, without the consent of the
other, construct any work that may
impede or interrupt, in whole or in
part, the exercise of this right, not
even for the purpose of favoring new
methods of navigation The
stipulations contained in the present
article shall not impair the territorial
rights of either Eepublic within its
established limits.' But by the
fourth article of the Gadsden treaty
of December 30, 1853 (10 Stats, at
Large, 1034), it was provided that
'the several provisions, stipulations,
and restrictions contained in the sev-
enth article of the treaty of Guada-
lupe Hidalgo shall remain in force
only so far as regards the Eio Bravo
del Norte, below the initial of the
said boundary provided in the first
article of this treaty, that is to say,
below the intersection of the 31 de-
gree, 47' 30" parallel of latitude,
with the boundary line established by
the late treaty dividing said river
from its mouth upwards, according
to the fifth article of the treaty of
Guadalupe. ' And on December 26,
1890, a convention was concluded be-
tween the United States and Mexico
(26 Stats, at Large, 1512), which pro-
vided for an international boundary
commission, to which was given, by
article five, the power to inquire, upon
complaint of the local authorities,
whether works were being constructed
in the Eio Grande prohibited by any
prior treaty stipulations. There is no
suggestion in the bill that any action
by these commissioners was invoked,
although it appears from one of the
affidavits that the commission has been
EFFECT OF TREATY ON DAM IN RIO GRANDE.
[§ 297
benefit of its own citizens is a matter of as much concern as any
obligation created by treaty or arising from the principles of in-
ternational law, in favor of other nations or their citizens.
duly constituted. Now it is debated
by counsel whether the construction
of a dam at the place named in New
Mexico, a place wholly within the ter-
ritorial jurisdiction of the United
States, is a violation of any of the
treaty stipulations above referred to —
they being, primarily at least, lim-
ited to that portion of the river
which forms the boundary line be-
tween the two nations; and also
whether the fact that the Eio Grande
is partially within the limits of Mex-
ico would give that nation, under the
rules of international law, any right
to complain of the total appropriation
of its waters for the legitimate uses
of the people of the United States.
Such qiiestions might under some cir-
cumstances be interesting and impor-
tant; but here the Eio Grande, so
far as it is a navigable stream, lies
Treaties — 22
as much within the territory of the
United States as in that of Mexico,
it being, where navigable, the bound-
ary between the two nations, and
the middle of the channel being the
dividing line. Now, the obligation of
the United States to preserve for their
own citizens the navigability of its
navigable waters is certainly as great
as any arising by treaty or interna-
tional law to other nations or their
citizens, and if the proposed dam and
appropriation of the waters of the
Eio Grande constitute a breach of
treaty obligations or of international
duty to Mexico, they also constitute
an equal injury and wrong to the
people of the United States."
United States v. Eio Grande Dam &
I. Co., 174 U. S. 690, 19 Sup. Ct.
Bep. 770, 43 L. ed. 1140.
TREATIES OF EXTRADITION AND PROCEEDINGS. 338
CHAPTER XI.
TKEATIES OF EXTRADITION AND PEOCEEDINGS THEREUNDER.
§ 298. Extradition dependent upon treaty.
§ 299. Extradition included within treaty-making power.
§ 300. Delivery to the United States as a matter of comity.
§ 301. No power to reciprocate.
§ 302. Escape effected by means of foreign vessel.
§ 303. Asking extradition as a favor.
§ 304. Delivery independent of treaty.
§ 305. Surrender not in pursuance of treaty.
§ 306. Delivery under immigration acts.
§ 307. Territory occupied by United States.
§ 308. Treaty measure of right.
§ 309. Crime committed within jurisdiction.
§ 310. Crime not complete in one country.
§ 311. Irregularities in extradition.
§ 312. Indictment and trial valid.
§ 313. Action by the government.
§ 314. Criminal by the law of both countries.
§ 315. Bonds and coupons.
§ 316. Common-law crimes.
§ 317. Embezzling public moneys.
§ 318. Law of the place.
§ 319. Laws of the place of refuge.
§ 320. Forgery in the third degree.
§ 321. Retroactive effect of treaties.
§ 322. Special stipulation as to time of taking effect.
§ 323. Extradition of citizens.
§ 324. Treaty provisions.
§ 325. Position of the United States.
§ 326. Under the Mexican law.
§ 327. Citizens of another country.
§ 328. Political offenses.
§ 329. Final decision as to question.
§ 330. Some instances.
§ 331. Raid at San Ignacio.
§ 332. Pilcomayo mutineers.
§ 333. Exemption from local jurisdiction.
§ 334. Attempt against life of President or other officers.
§ 335. Case of anarchists.
§ 336. Trial for different offense.
§ 337. Pleading other offense.
339 EXTRADITION DEPENDENT UPON TREATY. [§ 298
§ 338. Variances.
§ 339. Lesser offense.
§ 340. Arrest on prior charge.
§ 341. Offense committed pending trial.
§ 342. Application for requisition.
§ 343. Mandate.
§ 344. Who may act as magistrate.
§ 345. Sufficiency of the complaint.
§ 346. Precision of indictment not required.
§ 347. Ordinary technicalities not applicable.
§ 348. Arrest of fugitive.
§ 349. Provisional arrest.
§ 350. Evidence required.
§ 351. Foreign depositions.
§ 352. Evidence on behalf of fugitive.
§ 353. Habeas corpus proceedings.
§ 354. Appeal and not writ of error.
§ 355. Consul may appeal.
§ 356. Conflicting evidence.
§ 357. Surrender of fugitive an executive function.
§ 358. Surrender upon different charge.
§ 359. Eefusal to surrender.
§ 360. Eelease of debtor in jail under civil process.
§ 361. Delivery within two months after commitment.
§ 362. Transit across the United States.
§ 363. Eestoration of property.
§ 364. Expenses of extradition.
§ 365. Expenses of district attorney.
§ 366. Method for payment of expenses.
§ 367. Deserting seamen.
§ 368. Gradual extension of list of crimes included in treaties.
§ 369. Eegulations of State Department.
§ 298. Extradition dependent upon treaty. — In the absence of
a treaty, one country is under no obligation to deliver up fugitives
from justice to another, although as a matter of comity between
nations such deliveries have often been made. "The laws of
nations embrace no provision for the surrender of persons who
are fugitives from the offended laws of one country to the
territory of another. It is only by treaty that such surrender
can take place. ' ' 1
In 1834 the British Minister requested the extradition of a
person charged with murder in England, but the reply was made
1 Mr. Eush, Secretary of State, to Mr. Hyde de Neuville, April 9, 1817,
MS. Notes to For. Leg., II, 218.
§ 298]
TREATIES OF EXTRADITION AND PROCEEDINGS.
340
that where no treaty existed on the subject, the authority of
the Executive to exercise an act having such an important effect
upon the rights of personal security was more than questionable,
and that the case was "without any remedy in the competency of
this government to apply."2 Mr. Webster, while Secretary of
State, stated: "Although such extradition is sometimes made,
yet, in the absence of treaty stipulations, it is always a matter of
comity or courtesy. No government is understood to be bound
by the positive law of nations to deliver up criminals, fugitives
from justice, who have sought an asylum within its limits,"3
It is well settled, whatever may be said by writers on inter-
national law, that there is no obligation upon the United States
to deliver fugitives from justice except as authorized by and
in compliance with treaty provisions.4 "In the United States,
the general opinion and practice have been that extradition
should be declined in the absence of a conventional or legislative
provision.
2 Mr. Forsyth, Secretary of State,
to Mr. Vaughan, July 7, 1834, MS.
Notes to British Leg., VI, 1.
3 6 Webster's Works, 399, 405.
4 United States v. Eauscher, 119
U. S. 407, 17 Sup. Ct. Eep. 234, 30
L. ed. 425; Matter of Metzger, 5 How.
(U. S.) 176, 12 L. ed. 104; Matter of
Sheazle, Fed. Gas. No. 12,734; 1
Wood. & M. (U. S.) 66; United States
v. Watts, 8 Saw. (U. S.) 370, 14
Fed. 130; Ex parte McCabe, 46 Fed.
363, 12 L. E. A. 589; Adriance v.
La Grave, 59 N. Y. 110, 17 Am. Eep.
317; Commonwealth v. Hawes, 13
Bush (Ky.), 697, 26 Am. Eep. 242;
Commonwealth v. Deacon, 10 Serg. &
E. 125 ; Eespublica v. De Longchamps,
1 Dall. (Pa.) Ill, 1 L. ed. 59; Sulli-
van's Case, 1 Op. Atty. Gen. 509;
Huggen's Case, 2 Op. Atty. Gen.
452; Case of Two Portuguese Seamen,
2 Op. Atty. Gen. 559; Dewit's Case,
3 Op. Atty. Gen. 661; Wing's Case,
6 Op. Atty. Gen. 431.
8 Terlinden v. Ames, 184 U. S. 270,
289, 22 Sup. Ct. Eep. 484, 46 L. ed.
534, 545, per Mr. Chief Justice Ful-
ler. Mr. Buchanan, while Secretary
of State, said: "But the practice of
nations tolerates no right of extradi-
tion. Whatever elementary authors
may say to the contrary, one nation
is not bound to deliver up persons
accused of crimes who have escaped
into its territories on the demand of
another nation against whose laws
the alleged crime was committed.
The government of the United States
has from the very beginning acted
on this principle. Mr. Jefferson,
when Secretary of State under the
administration of General Washing-
ton, declared that 'the laws of this
country take no notice of crimes com-
mitted out of their jurisdiction. The
most atrocious offender, coming with-
in our pale, is received by them as
an innocent man, and they have au-
thorized no one to seize or deliver
him. ' It has been contrary to the
practice of the United States even
to request as a favor that the gov-
ernment of another country should
341 EXTRADITION INCLUDED WITHIN TREATY-MAKING POWER. [§ 299
§ 299. Extradition included within treaty-making power. —
That the power to provide for the extradition of those charged
with crime is within the treaty-making power cannot be ques-
tioned. "The power to surrender is clearly included within the
treaty-making power, and the corresponding power of appoint-
ing and receiving ambassadors and other public ministers. Its
exercise pertains to public policy and governmental administra-
tion is devolved on executive authority, and the warrant of
deliver up a fugitive from criminal
justice, because under our laws we
possess no power to reciprocate such
an act of grace. Since I came into
the Department of State the Presi-
dent, after full deliberation with his
Cabinet, refused for this reason to
prefer such a request to the govern-
ment of Texas. The truth is, that
it has been for a long time well set-
tled, both by the law and practice
of nations, that, without a treaty stip-
ulation, one government is not under
any obligation to surrender a fugi-
tive from justice to another govern-
ment for trial." Mr. Buchanan, Sec-
retary of State, to Mr. Wise, Septem-
ber 27, 1845, MS. Inst. Brazil, XV,
119.
In November, 1863, eleven hundred
African negroes, whom it was in-
tended to sell as slaves, were cap-
tured by an officer of the Spanish
army named Don Jose Augustin Ar-
guelles. He at the time was lieuten-
ant-governor of a district in Cuba,
and obtained for his action a large
proportion of the prize money allowed
to the captors. He subsequently de-
parted for New York, and after he
left it was ascertained that a number
of the negroes captured had been re-
tained by him and his officers and
sold into slavery. The captain-gen-
eral of Cuba, through the United
States consul at Havana, requested
his surrender, and when Arguelles
reached New York he was arrested
and delivered up pursuant to an or-
der of the Executive of the United
States to an agent of the captain-
general and taken to Cuba. Owing
to the celerity with which the seizure
and delivery were effected, no oppor-
tunity was presented to obtain a writ
of habeas corpus, but when the news
became known condemnatory resolu-
tions were offered in the House of
Eepresentatives, but did not pass.
In the Senate a resolution was adopted
requesting information from the Presi-
dent as to whether the delivery as
alleged was made, and if so, under
what authority of law or of treaty
it was done. The President on June
1, 1864,, transmitted a report of the
Secretary of State, saying that as
there was no treaty in existence, the
extradition was made in virtue of the
law of nations and the constitution
of the United States, and "Although
there is a conflict of authorities con-
cerning the expediency of exercising
comity toward a foreign government
by surrendering, at its request, one
of its own subjects charged with the
commission of crime within its terri-
tory, and although it may be con-
ceded that there is no natural obliga-
tion to make such a surrender on a
demand therefor, unless it is acknowl-
edged by treaty or by statute law,
yet a nation is never bound to fur-
nish asylum to dangerous criminals
§ 300] TREATIES OF EXTRADITION AND PROCEEDINGS. 342
surrender is issued by the Secretary of State as the representa-
tive of the President in foreign affairs. ' ' 6
Extradition may be denned as "the surrender by one nation
to another of an individual accused or convicted of an offense
outside of its own territory, and within the territorial jurisdic-
tion of the other, which, being competent to try and to punish
him, demands the surrender. ' ' 7 Speaking of the distinction be-
tween transportation, extradition and deportation, Mr. Justice
Gray said: "Strictly speaking, transportation, extradition and
deportation, although each has the effect of removing a person
from the country, are different things, and have different pur-
poses. Transportation is by way of punishment of one convicted
of an offense against the laws of the country. Extradition is the
surrender to another country of one accused of an offense against
its laws, there to be tried, and, if found guilty, punished. De-
portation is the removal of an alien out of the country, simply
because his presence is deemed inconsistent with the public
welfare, and without any punishment being imposed or contem-
plated, either under the laws of the country out of which he is
sent or those of the country to which he is taken. ' ' 8
§ 300. Delivery to the United States as a matter of comity.—
There have been several instances in which fugitives have been
delivered to the United States in the absence of treaties as a
matter of comity. Tweed, after his arrest in Cuba, and before
the conclusion of a treaty between the United States and Spain,
was delivered to the United States, but Mr. Fish, Secretary of
State, declared: "The United States has from time to time care-
fully avoided making requests for the surrender of criminals
for the reason, among others, that it might not be possible to
reciprocate in such a matter. The government of Spain, in its
who are offenders against the human Sup. Ct. Eep. 484, 46 L. ed. 534, 545,
race; and it is believed that if in citing Holmes v. Jennison, 14 Pet.
any case the comity could with pro- 569, 10 L. ed. 593. See, also, Tucker
priety be practiced, the one which is v. Alexandroff, 183 U. S. 424, 22 Sup.
understood to have called forth the Ct. Eep. 195, 46 L. ed. 264.
resolution furnished a just occasion 7 Terlinden v. Ames, supra,
for its exercise. /; Dep. Cor. 1864, 8 In Fong \ue Ting v. United
pt. 2, pp. 60, 71; pt. 4, p. 35. States, 149 U. S. 698, 709, 13 Sup.
6 Mr. Chief Justice Fuller in Ter- Ct. Kep. 1016, 1020, 37 L. ed. 905.
linden v. Ames, 184 U. S. 270, 289, 22
343 NO POWER TO RECIPROCATE. [§ 301
action in this case, has appreciated the peculiarity of the case. ' ' 9
Mr. Clay, in 1827, applied to the British government for the
extradition of a bank-teller charged with robbery.10 The British
government was reminded of the application made by the British
Minister to the United States in 1825 for the extradition of one
Neilson, charged with forgery in Scotland, which application was
favorably recommended to the governor of New York.11 In 1828
the United States requested from Mexico the extradition of per-
sons of the name of Harden, who, it was charged, had committed
a series of murders in Tennessee, and who had fled to Texas and
taken refuge there. In accordance with this request, the Mexican
government directed that the government of the state of Coa-
huila and Texas should arrest and surrender the fugitives. The
Secretary of War of the United States was requested to detail a
part of the military force on the border to assist the agent of
the state of Tennessee in taking the fugitives to that state.12
§ 301. No power to reciprocate. — It may be stated that it
is now the settled policy of the United States not to request
extradition except pursuant to treaty stipulations, and hence
extradition should not be asked as an act of comity merely.13
Mr. Bayard, in a report to the President, declared: "During
the past thirty years this government has repeatedly refused to
make a request for extradition in the absence of a treaty, and
several notable surrenders of fugitive criminals to the United
States, among which may be instanced that of Tweed, have been
made without any request on the part of this government. But
9 November 3, 1876, MS. Inst. that notorious offenders should not
Spain, XVIII, 17. escape with impunity." Mr. Clay,
10 He said in his note to Mr. Secretary of State, to Mr. Tudor, No-
Tudor, charge d'affaires: "The ap- vember 23, 1827, MS. Inst. U. S.
plication which you are thus instructed Ministers, XII, 44.
to make to the British government u Governor Clinton, of New York,
is not founded upon strict right, that stated that no sufficient proof had
government being under no obligation been presented to justify the surren-
by any existing treaty or by the pub- der of Neilson. Governor Clinton to
lie law to surrender the fugitive. Mr. Clay, December 19, 1825, MS.
It addresses itself solely to the Misc. Let.
courtesy and discretion of that gov- 12 22 MS. Dom. L'et. 275; Am.
ernment, to its sense of justice, and State Papers For. Eel., VI, 611.
to the interest common to all nations 13 Gushing, 6 Op. Atty. Gen. 85.
§§ 302, 303] TREATIES OF EXTRADITION AND PROCEEDINGS. 344
where a treaty of extradition exists, it is believed that the action
of the executive branch of the Government has uniformly been
guided by the principle that the expression of one thing is the
exclusion of another. An agreement between two nations to
comply with demands for extradition for certain enumerated
offenses implies that surrender will neither be granted nor asked
for others not enumerated. ' ' 14
§ 302. Escape effected by means of foreign vessel. — It is not
a ground for demanding the return of a fugitive that his escape
was effected by foreigners by means of a foreign vessel,15 as it
is probable that the majority of fugitives from justice take this
means of escape, nor would the fact that the foreign vessel was
a man-of-war make any difference.
§ 303. Asking extradition as a favor. — In 1900 a request was
made by the governor of Porto Rico that the United States should
demand the extradition from Spain of an individual charged with
murder, but Mr. Hay, Secretary of State, declined to comply, be-
cause no extradition treaty between the United States and Spain
existed, and the United States could not, in the absence of a
treaty, surrender under similar circumstances a fugitive from
justice.16 The Mexican law does not permit extradition where
14 In the case of William J. Me- sel — this is not regarded as a valid
Garigle, September 14, 1887, 17 MS. ground for claiming a surrender. On
Book, 13. the contrary, this Department, in
15 Mr. Bayard, in his report to the 1872, as appears by its records, in
President in the case of McGarigle, the case of two seamen of the U. S. S.
September 14, 1887, 17 MS. Eept. 'Wachusett/ who were charged with
Book, 13, said: "The ownership of having committed larceny in the city
a vessel, or of the vehicle in which of Leghorn and had escaped to that
a fugitive criminal escapes, does not vessel, approved the action of the
appear to have any bearing upon the commanding officer of the European
question of extradition. It is prob- fleet, in refusing to comply with the
able that a majority of the fugitive request of the Italian authorities for
criminals from the United States, who the surrender of the men, the offense
in recent years have found refuge with which they were charged not
beyond the seas, have escaped on being included in the extradition
foreign-owned vessels; but this is not treaty between the United States and
known ever to have been made a Italy. ' '
ground for asking the extradition of 16 Mr. Hay to the Governor of Porto
a fugitive. Even if the vessel in Rico, June 19, 1900, 245 MS. Dom.
which the criminal flees should be a Let. 649.
foreign man-of-war — a national ves-
345
ASKING EXTRADITION AS A FAVOR.
[§ 303
no treaty exists, unless the government seeking it shall promise
strict reciprocity. Owing to the inability of the United States
to grant extradition in the absence of treaty stipulations, this
government does not occupy a position authorizing it to request
the surrender of a fugitive by the Mexican government in a case
not embraced by the treaty.17
Where it was sought to have the United States request extra-
dition from Chile, Mr. Hill, Acting Secretary of State, replied:
"It has been deemed impolitic to ask of foreign governments a
favor which the government could not grant. This policy has
been maintained with few exceptions for a long period of time,
and the Secretary of State has directed that it shall be observed
in the present case. ' ' 18
17 Mr. Hay, Secretary of State, to
Mr. Graves, December 7, 1899, 241
MS. Dom. Let. 456.
18 To Mr. Warner, October 6, 1899,
240 MS. Dom. Let. 407. Said Mr.
Buchanan, while Secretary of State:
' ' It has been contrary to the prac-
tice of the United States even to
request, as a favor, that the govern-
ment of another country should de-
liver up a fugitive from criminal jus-
tice because under our laws we pos-
sess no power to reciprocate such an
act of grace." Letter to Mr. Wise,
September 27, 1845, MS. Inst. Brazil,
XV, 119. The extradition of Bill
Tucker, alias John Nie, was requested
in 1884 from Guatemala, with the ex-
planation that the United States could
not promise reciprocity. Mr. Freling-
huysen, Secretary of State, to Mr.
Gosling, December 18, 1884, 153 MS.
Dom. Let. 459. In 1797 the sur-
render of persons charged with mur-
der on board of an American vessel,
who were in confinement on a French
war vessel at Norfolk, Virginia, was
requested by Mr. Pickering, Secre-
tary of State, and the fugitives were
surrendered. 9 MS. Dom. Let., pp.
411-415. In 1855 Mr. Marcy, Secre-
tary of State, wrote to the Spanish
Minister that if he could officially or
otherwise request the authorities of
the Canary Islands, to which a per-
son charged with crime had fled, "to
interpose no unnecessary obstacle to
the arrest of Baker and his return
to this country, it would be consid-
ered as an act of courtesy which would
be appreciated and reciprocated."
MS. Notes to Spain; Notes from
Spanish Leg. In 1878 one Angell,
charged with embezzlement, fled to
Portugal, and Mr. Evarts, Secretary
of State, instructed the American rep-
resentative at Lisbon that: "It is
presumed that the government of his
Majesty will have no difficulty in ac-
ceding to the prevalent opinion in
respect of extradition, that it is a
right inherent in the sovereignty of a
nation, and not born of specific
treaty obligations; while, on the other
hand, the right to claim the extradi-
tion of a criminal flows exclusively
from the reciprocal stipulations of
treaty. In this aspect of the ques-
tion, this government concedes that
it may, with perfect propriety, ex-
press to that of his most faithful
Majesty the great satisfaction which
304]
TREATIES OF EXTRADITION AND PROCEEDINGS.
346
§ 304. Delivery independent of treaty. — While, as we have
seen, the United States is powerless to reciprocate the delivery
of fugitives in the absence of treaty, many nations, although not
obligated to do so, have voluntarily returned to the United States
fugitives from justice. Thus, in 1888, Denmark surrendered John
A. Benson, charged with obtaining public lands through fraud
practiced on the government, and in 1885 Japan surrendered
Calvin Pratt, who was charged with forgery in California.19 The
jurisdiction of the court to try a prisoner for an offense com-
mitted within its jurisdiction is not affected by the question
whether the act of the governor of the state was illegal in pro-
curing his return from a foreign government with which there is
no extradition treaty. The manner in which the accused is
brought before the court cannot impair its jurisdiction.20
In 1893 President Cleveland, in his annual message to Con-
gress, announced that Costa Rica had, as an act of amity, surren-
it would have in learning that the
latter is willing, as an act of in-
ternational comity, to cause the arrest
of Angell, and his surrender to a
duly authorized agent of this govern-
ment to the end that he may be
brought to this country, here to stand
his trial in due form of law for the
offense whereof he stands charged. ' '
The fugitive was surrendered, the
Portuguese Minister expressing the
hope that if his government should
have occasion to address a similar
requisition to the United States "the
same would be received with equal
goodwill"; to which the American
representative replied that "such ap-
plication will meet with an equally
prompt and effectual response. ' '
Portugal made application twice for
the surrender of fugitive convicts, but
in each instance the reply was re-
turned that in the absence of a treaty,
the request could not be complied
with. MS. Desp. Portugal. Mr.
Frelinghuysen, Secretary of State,
to Viscount das Noguieras, February
9, 1883, MS. Notes, Portugal; Mr.
Bayard, Secretary of State, to Baron
d'Almeirim, June 4, 1888, MS. Notes,
Portugal.
19 4 Moore Int. L. D. 258; 1 Moore
on Extradition, sec. 41, pp. 47-49. In
1817 Sweden and Denmark delivered
certain members of an American ship
who were charged with murder and
piracy. Mexico surrendered Hardin,
charged with murder in Tennessee.
In 1839 Texas surrendered Cooke,
charged with murder in Mississippi.
In 1855 Switzerland surrendered
Schrock, who was charged with the
embezzlement of public funds in
Ohio. In 1856 Austria surrendered
Morris, who was charged with mur-
der committed on an American vessel
on the high seas. In 1864 Cuba sur-
rendered convicts who had escaped
from the Tortugas. In 1879 Brazil
surrendered Conyngham, who was
charged with forgery. See 1 Moore
on Extradition, sec. 41, pp. 47-49;
4 Moore Int. L. D. 258.
20 People v. Pratt, 78 Cal. 345, 20
Pac. 731.
347 SURRENDER NOT IN PURSUANCE OF TREATY. [§ 305
dered to the United States, upon duly submitted evidence of
criminality, a fugitive from justice though no treaty of extra-
dition was in existence.21 In 1886 Mr. Tree, the Minister of the
United States at Brussels, reported to Mr. Bayard, Secretary of
State, that the administrator of the Congo had stated in conver-
sation that if the United States should signify its desire for the
extradition of a fugitive criminal from the independent state of
the Congo, the fugitive, on the presentation of proper proofs,
would be arrested and delivered to the American authorities,
irrespective of the existence of a treaty of extradition or re-
ciprocal arrangement with the United States.22
§ 305. Surrender not in pursuance of treaty. — When it is pro-
vided by a treaty that fugitives charged with certain crimes
shall be surrendered, the reciprocal duty of surrender does not
extend beyond the particular cases for which the treaty has made
provision.23 But each nation has the right to exercise its own
discretion in surrendering fugitives from justice in cases not
covered by the treaty, and when a fugitive charged with the
commission of a crime as to which the treaty is silent is surren-
dered, the presumption is that the surrender was made in the
exercise of the sovereign discretion of the surrendering power,
and as an act of comity. Where a defendant has not been sur-
rendered in pursuance of a treaty, the rule that he cannot be
tried for any other offense than that named in the extradition
proceeding does not apply. If he is surrendered for trial upon
a particular indictment referred to in the warrant of arrest for
extradition, the fact that such indictment was set aside upon his
motion after extradition does not justify a court in discharging
him upon habeas corpus when he is arrested upon a complaint
charging him with the commission of the same offense named in
the indictment that was set aside.24
21 For. Eel. 1893, V; 4 Moore Int. U. S. 407, 7 Sup. Ct. Eep. 234, 30 L.
L. D. 258. ed. 425; Commonwealth v. Hawes, 13
22 Mr. Tree to Mr. Bayard, Sec- Bush, 697, 26 Am. Kep. 242.
retary of State, No. 108, June 12, =* Ex parte Foss, 102 Cal. 347, 41
1886, For. Kel. 1886, 33 ; 4 Moore Int. Am. St. Eep. 182, 36 Pad. 669, 25
L. D. 258. L. E. A. 593.
23 United States v. Eauscher, 119
§§ 306-308] TREATIES OF EXTRADITION AND PROCEEDINGS. 348
§ 306. Delivery under immigration acts. — The laws of the
United States that authorize the return of alien convicts to the
country to which they belong may, incidentally, have the effect
of placing a criminal within the dominion of the authorities of
the country from which he made his escape. But such laws do
not take the place of treaties of extradition, and do not authorize
the Executive to surrender fugitives from justice on the demand
of foreign governments.25
§ 307. Territory occupied by United States.— In 1900 the stat-
ute was amended so as to provide for the extradition of persons
violating the laws of a foreign territory occupied by the United
States or under its control.26 Under this provision Cuba was
held to be foreign territory, although, at the time, the island was
under a military government appointed by the President of the
United States for the purpose of assisting the inhabitants of
that island to form a government of their own.27
The Constitution contains certain fundamental guaranties of
life, liberty and property relating to the writ of habeas corpus,
bills of attainder, ex post facto laws, and trial by jury for crimes.
These, however, have no bearing on crimes committed without
the jurisdiction of the United States against the laws of a foreign
country.28
§ 308. Treaty measure of right. — The right to demand extra-
dition depends upon the language of the treaty, and is measured
and restricted by the express or implied provisions of the treaty.29
A foreign government can claim no right to demand the return
of a fugitive from justice who has found an asylum in the United
States, without a treaty conferring such right.30 A statute of a
state authorizing the governor, in his discretion, to deliver over
25 4 Moore Int. L. D. 259; 1 Moore 28 Neely v. Henkel, 180 U. S. 109,
on Extradition, sec. 31; Mr. Freling- 21 Sup. Ct. Eep. 302, 45 L. ed. 448.
huysen, Secretary of State, to Mr. 29 Commonwealth v. Hawes, 76
Willamov, November 14, 1882, MS. Ky. (13 Bush) 697, 26 Am. Rep. 242.
Notes to Russia, VII, 403. 30 Ex parte Dos Santos, Fed. Cas.
26 See act of June 6, 1900, amend- No. 4016, 2 Brock. 493. But see as
ing Rev. Stats., sec. 5270. to the law of nations in the absence
27 Neely v. Henkel, 180 U. S. 109, of a treaty, In re Washburn, 3 Wheel.
21 Sup. Ct. Rep. 302, 45 L. ed. 448. C. C. 473; In re Sheazle, Fed. Cas.
No. 12,734, 1 Wood. & M. 66.
349
CEIME COMMITTED WITHIN JURISDICTION.
[§ 309
to justice any person found in the state who is charged with a
crime committed out of the jurisdiction of the United States is
unconstitutional.31 Courts are not obligated by the principles of
international law alone without a treaty or statute to remand
prisoners for trial to a foreign government.32 Under a treaty
providing that "neither of the contracting parties shall be bound
to deliver up its own citizens, under the stipulations of this
treaty," a citizen of the United States charged with a murder
committed in one of the states of Mexico will not be surren-
dered.33 The right of foreign nations to demand the surrender
of fugitives from justice aside from treaty stipulations has never
been recognized by the United States.34
§ 309. Crime committed within jurisdiction. — The treaties of
extradition provide usually for the surrender of a person found
in the territory of one of the contracting powers for an offense
committed within the jurisdiction of the other. And it should
appear that the crime was committed within the jurisdiction of
the government demanding jurisdiction.35 Jurisdiction is held
to be convertible with the term "country."36 An offense com-
31 In re Vogt, 50 N. Y. 321; S. C.
44 How. Pr. 171.
32 United States v. Davis, Fed. Gas.
No. 14,932, 2 Sum. 482. It was held
that the treaty with France, respect-
ing the surrender of fugitives from
justice could not be executed by the
President of the United States in the
absence of legislation. In re Metz-
ger, 1 Park. Cr. Eep. 108.
33 Ex parte McCabe, 46 Fed. 363, 12
L. R. A. 589. In this case the au-
thorities are reviewed at length and
the court said: "If there were no
pre-existing obligation to extradite a
fugitive, the obligation must neces-
sarily grow out of either statute
law or treaty engagement. It is,
therefore, apparent that the purpose
of the treaty was to authorize the
parties to do something which they
had no previous authority to do.
The parties came together through
their respective representatives, and
made an agreement — an obligatory,
binding agreement — to surrender,
under certain circumstances, persons
who commit crimes and flee from
offended justice. They are author-
ized to act as they bind themselves.
The agreement is mutual; the rights
and obligations reciprocal. If power
to surrender be not affirmatively
given, the right to demand a fugitive
can have no existence. The right
to demand implies ex vi termini, the
corresponding authority and obliga-
tion to surrender. But both to exist
should be founded upon express stip-
ulations. ' '
34 In re Fetter, 23 N. J. L. (3
Zab.) 311, 57 Am. Dec. 382.
35 Gushing, Atty. Gen. 1856, 8 Op.
215.
36 Williams, Atty. Gen., 14 Op. 281.
The court had held otherwise. In
re Stupp, 11 Blatchf. 124, Fed. Gas.
No. 13,562.
§ 310] TREATIES OP EXTRADITION AND PROCEEDINGS. 350
mitted on board of a public ship of war on the high seas is com-
mitted within the jurisdiction of the nation to whom the ship
belongs.37
When the Russian Minister expressed a desire that a proposed
treaty of extradition should provide for the extradition of per-
sons charged with the commission of crimes against the laws of
either country committed outside of its territorial jurisdiction,
Mr. Fish, Secretary of State, said: "This cannot be conceded. It
is at once repugnant to the policy of this Government and to the
criminal jurisprudence of the United States, and in effect would
render the municipal law of one country operative within the
territorial sovereignty of another independent sovereign power.
By the Constitution of the United States an accused party is
entitled to trial within the state and district wherein the crime
shall have been committed ; no offender can be tried in the United
States for an offense committed without its jurisdiction."38
§ 310. Crime not complete in one country. — But a person who
is charged with poisoning, resulting in death, in Canada, may be
extradited to Canada, although it may appear that the poison,
if given at all, was administered in the United States.39
A British subject, charged with the commission of murder on
board of a British steamship, on which he was a seaman, while
the vessel was lying at a Cuban port, was brought on the regular
voyage of the steamer to New York. The authorities of Cuba
had refused to entertain jurisdiction of the offense on the ground
that it was committed on board of a British vessel by a British
subject. On his landing in New York the British government
demanded his extradition, which was granted.40 But where the
United States, in 1891, requested of Great Britain the arrest of
a person who had escaped from a jail at Constantinople and was
supposed to be on his way from New York to England, it was
replied that the British government had no power to arrest the
37 President Adams to Mr. Picker- Mr. Jewell, May 9, 1874, MS. Inst.
ing, Secretary of State, May 21, 1799 ; Russia, XV, 426.
8 John Adams' Works, 651; 1 Moore 39 Sternaman v. Peck, 83 Fed. 690,
on Extradition, 135; Wharton's State 28 C. C. A. 377.
Trials, 392. 40 1 Moore on Extradition, 138.
38 Mr. Fish, Secretary of State, to
351 IRREGULARITIES IN EXTRADITION. [§ 311
fugitive in respect of his escape from the Constantinople prison.41
It was held, under the treaty between the United States and
Great Britain of 1899, providing for the extradition of persons
charged with crimes committed within the jurisdiction of either
nation, that extradition will not be granted from the United
States of a person charged with the commission of an offense
prior to the proclamation of Lord Eoberts in 1900, declaring that
the South African Republic was a British colony.42 The "Ben-
nington," a war vessel of the United States, in 1894 arrived off
the Golden Gate, having on board a number of citizens of Sal-
vador, to whom an asylum had been granted, and she remained
outside until the 23d of August. Instructions having been re-
ceived from the Navy Department, she came inside the harbor,
when a United States marshal served warrants on them on charges
of crime preferred under the extradition treaty between Sal-
vador and the United States. When the prisoners were brought
before the federal district court, a plea was interposed to the
court's jurisdiction on the ground that they were brought by the
government of the United States forcibly and against their will,
and hence were not, within the meaning of the treaty, fugitives
from justice, but the court overruled the plea.43 It was said by
Mr. Hay, Secretary of State, that while a conspiracy formed
within the United States to commit a crime abroad may be pun-
ishable in the United States, the authorities of the government
within whose territory the conspiracy was to be effectuated could
not obtain the extradition of the persons concerned in the con-
spiracy.44
§ 311. Irregularities in extradition. — A person who has been
brought from a foreign country by proceedings which violate a
treaty between that country and the United States, and which
are forbidden by that treaty, may raise the question by a plea
to an indictment in a state court, and if the right asserted by the
plea is denied, the supreme court of the United States can review
41 Mr. Lincoln, Minister to Eng- Law Eev., Jan.-Feb., 1895; 4 Moore
land, to Mr. Blaine, Secretary of Int. L. Dig. 286.
State, No. 485, June 30, 1891, 168 44 Mr. Hay, Secretary of State, to
MS. Desp. from England. Baron Fava, Italian Ambassador, No.
42 In re Taylor, 118 Fed. 196. 654, March 8, 1901, MS. Notes to
43 The Salvadorean Eefugees, Am. Ital. Leg., IX, 508.
§ 312] TREATIES OF EXTRADITION AND PROCEEDINGS. 352
the judgment of the state court.45 To enable the supreme court
of the United States, however, to review the judgment, the right
claimed must be under the Constitution, laws or treaties of the
United States. If a prisoner has been kidnaped in a foreign
country and brought by force against his will within the juris-
diction of the state, the law of which he is charged with violat-
ing, without attempting to proceed under the extradition treaty,
although one exists, the supreme court of the United States is
powerless to grant relief.46 The manner in which the accused
is brought before a state court does not impair its jurisdiction.
Therefore, it is no objection to the trial and detention of a pris-
oner that he has been forcibly abducted from another state, and
conveyed within the jurisdiction of the court detaining him.47
Where a person is held under process legally issued from the
courts of a state, the supreme court of the United States will not
interfere to relieve him, although he may have been arrested
and taken by violence from the territory of one state to that of
another.48
§ 312. Indictment and trial valid. — The courts have refused
to discharge a prisoner returned from another state by means of
false affidavits,49 and the state courts have frequently declined
to order the discharge of a prisoner kidnaped and taken from
another state ; 50 in other words, it may be stated that the indict-
ment and trial may be valid although the original arrest was
illegally made.51 A fugitive from justice is not guaranteed by the
treaties of extradition an asylum, and such treaties do not give
him any greater or more sacred right than he possessed before.
Their object is to provide that for certain crimes he shall be
deprived of that asylum and surrendered to justice, and they
prescribe the manner of accomplishing this object.52
45 Ker v. Illinois, 119 U. S. 436, 7 Pac. 40, 15 L. R. A. 193; Baker v.
Sup. Ct. Rep. 225, 30 L. ed. 421. State, 88 Wis. 147, 59 N. W. 572.
46 Ker v. Illinois, 119 U. S. 436, 51 In re Johnson, 167 U. S. 126, 17
7 Sup. Ct. Rep. 225, 30 L. ed. 421. Sup. Ct. Rep. 735, 42 L. ed. 105.
« Cook v. Hart, 146 U. S. 183, 13 B2 Ker v. Illinois, 119 U. S. 436, 7
Sup. Ct. Rep. 43, 36 L. ed. 934. Sup. Ct. Rep. 225, 30 L. ed. 421. The
48 Cook v. Hart, 146 U. S. 183, 13 federal courts have jurisdiction of ex-
Sup. Ct. Rep. 40, 36 L. ed. 934. tradition proceedings under treaty.
49 In re Moore, 75 Fed. 824. In re Ezeta, 62 Fed. 967. A pris-
50 Kingen v. Kelly, 3 Wyo. 577, 28 oner convicted of a nonextradit-
353 ACTION BY THE GOVERNMENT. [§ 313
§ 313. Action by the government. — But the government in
which the arrest is made may have a cause for complaint. In
1891 Rufino Rueda was arrested at Key West, for the purpose of
extradition, on a charge of murder committed in Havana. On
the night of his arrest he was taken by Spanish agents, placed
on board of a vessel, and taken to Havana. The United States
demanded his return to American jurisdiction, subject to such
extradition process as the government of Spain might, under the
treaty, subsequently institute, and in compliance with this demand
the Spanish government caused the return of the prisoner to Key
West.53
A nation that claims a fugitive from justice has not the right
to invade the territorial waters of another state for the purpose
of causing the arrest of such fugitive.54 In 1892 a boy, fifteen
years of age, a citizen of Canada, was kidnaped in New York
and enticed across the boundary into Canada. The British gov-
ernment voluntarily agreed to return him to the place in New
York from which he had been abducted.55
In 1863 two Canadian constables abducted two persons, Wilson
and McElvery, from Michigan, and Mr. Seward, Secretary of
State, complained of the abduction. The governor-general of
Canada disavowed the action of the officers, and expressed regret
for the occurrence, and offered to restore immediately the ab-
ducted persons should the United States so require. It appeared
that the persons abducted had violated the laws of Canada, and
able offense will be refused a dis- charged on the principle of comity
charge after a voluntary return. In between states, see Com. v. Shaw
re Cross, 43 Fed. 520. An extradited (Pa.), 6 Grim. L. Mag. 245. As to
prisoner claiming not to be a fugi- extradition effected by false affidavit
tire was refused a discharge. Eaton authorizing a discharge on habeas cor-
v. West Virginia, 91 Fed. 766, 61 pus after conviction, see State v. Jack-
U. S. App. 676, 34 C. C. A. 68. The son, 36 Fed. 258, 1 L. R. A. 370.
abduction of a prisoner will not pre- 5J MS. Inst. Spain, XXI, 54, 65;
vent his trial and conviction. Mahon Dispatch No. 216, March 5, 1892,
v. Justice, 127 U. S. 700, 8 Sup. Ct. from the American legation at Ma-
Rep. 1204, 32 L. ed. 283; State v. drid, 124 MS. Desp. from Spain.
Brewster, 7 Vt. 118; People v. Rowe, 34 MS. Inst. Brazil, XV, 119, Mr.
4 Park. Cr. Rep. 253; State v. Ross, Buchanan, Secretary of State, to Mr.
21 Iowa, 467. But see contra, State Wise, September 27, 1845.
v. Simmons, 39 Kan. 262, 18 Pac. M 4 Moore Int. Law Dig., p. 330.
177. Where a prisoner was dis-
Treaties — 23
§ 314] TREATIES OF EXTRADITION AND PROCEEDINGS. 354
had fled to Michigan. Under the circumstances, Mr. Seward
stated that he would not insist on their liberation or restoration,
but would remit them to the penalties which had been adjudged
against them by the laws of the country whose laws had been
violated by them.56
Mr. F. Webster, Acting Secretary of State, in a note addressed
in 1841 to Mr. Fox, the British Minister, stated that a party of
British soldiers had entered a house in Vermont and carried off
one Grogan to Canada, and expressed the opinion, if the facts
should appear to be as alleged, that the British government
would liberate the prisoner and punish the offenders. Mr. Fox, in
response, stated that before the receipt of any official communica-
tion, but upon the receipt of a report of the matter, the British
government had ordered the release of Grogan and his restoration
to the state of Vermont, should there appear to be confirmation
of the reported illegality of his arrest. Grogan, after an inves-
tigation of the case, was ordered released, and was conducted by
a sheriff to a place in Vermont, as near the place of his abduction
as it was possible to ascertain.57
Other instances have occurred which have become the subjects
of diplomatic correspondence between the United States and
other governments, when persons have been taken from one coun-
try to another, and in which the restoration of the rescued pris-
oner has been demanded.
§ 314. Criminal by the law of both countries. — It is not neces-
sary, to make an offense criminal by the laws of both coun-
tries, that there should be absolute identity in the statutes de-
fining the offense. Taking, for instance, the treaty with Great
Britain, we find that extradition shall be effected only "upon
such evidence of criminality as, according to the laws of the
place where the fugitive or person so charged shall be found,
56 Mr. Seward, Secretary of State, r>T F. Webster, Acting Secretary of
to Lord Lyons, British Minister, June State, to Mr. Fox, September 28,
6, 1863, MS. Notes to Great Britain, 1841; Mr. Fox to Mr. Webster, Octo-
X, 67. Several cases have occurred ber 21, and November 26, 1841; Mr.
in some of which demand for return Webster, Secretary of State, to Mr.
of "kidnaped prisoners was made by Fox, November 27, 1841, MS. Dep. of
the United States and in others de- State.
mand was made upon the United
States.
355 BONDS AND COUPONS. [§§ 315, 316
would justify his apprehension and commitment for trial, if the
crime or offense had there been committed."58 But under this
provision of the treaty it is sufficient if the essential character
of the transaction constituting the offense is the same, and the
statutes of each country make it criminal.59
§ 315. Bonds and coupons. — Where copies of bonds and cou-
pons were innocently made by engravers for the use of corpora-
tions as samples, and were never delivered to the corporations,
they are not forged instruments so long as they are innocently
retained by the engravers or others to whom they are delivered.
But they become forgeries when they are fraudulenly uttered as
genuine, even if they are not altered.60
§ 316. Common-law crimes. — Under the treaty with Mexico it
was held that a person may be extradited from the United States
to Mexico for the crime of forgery of an instrument which the
laws of Mexico make an offense, the Mexican authorities having
held him for the offense. It was contended that the real definition
of forgery was to be found in the common law of England, and
that although the transaction complained of might have been a
cheat, it was not a forgery within the meaning of the treaty. But
the court answered that the common law of England could hardly
be said to be the only criterion by which to construe the lan-
guage of a treaty, and that Mexico could not be supposed to have
the common law exclusively in mind as governing the true con-
struction of a treaty between it and this country, neither of which
owed any allegiance to England. The court further said there
were no common-law crimes of the United States, and that it
could not be said that the Mexican authorities intended to be
bound by any very restricted use of the word "forgery" "when
the question concerned an offense of that character committed in
Mexico. It is for an offense against Mexican law that the pris-
oner is held to answer. ' ' 61
38 Treaty of 1842, art. 10, 8 Stats. 60 In re Count de Toulouse Lautrec,
at Large, 572, 576. 102 Fed. 878, 43 C. C. A. 42.
r'° Wright v. Henkel, 190 U. S. 59, <" Benson v. McMahon, 127 U. S.
23 Sup. Ct. Kep. 785, 47 L. ed. 954; 457, 8 Sup. Ct. Kep. 1240, 32 L. ed.
In re Wright, 123 Fed. 463. 234.
§§ 317, 318] TREATIES OF EXTRADITION AND PROCEEDINGS. 356
§ 317. Embezzling public moneys. — It was provided by the
treaty of December 11, 1861, between the United States and Mex-
ico that extradition might be had of a person charged with the
crime of "the embezzlement of public moneys." Where moneys
were collected as tolls and wharfage, they became the property
of the state as soon as they were collected, and to constitute them
public moneys it was not necessary that they should be first paid
into the treasury. For such an embezzlement, extradition of the
person charged can be secured under the treaty.62 The funds of
a private corporation, however, cannot be considered public
moneys within the meaning of the treaty.63 But where a cashier
of a savings bank owned by a city in Germany embezzles its funds,
he being a public official appointed by the city, the crime is an
embezzlement of public moneys within the meaning of that term
in the treaty of 1852 between Prussia and the United States.64
The Penal Code of Cuba provides that a public employee who
shall take public funds of which he has charge by virtue of his
office shall be guilty of a crime. If such an officer falsely certi-
fies to invoices in which coupons are inclosed, and obtains pos-
session of money, which could not, except in consequence of his
official act, pass from the possession of the bank to his own, he is
guilty of an extraditable offense.65 If it appears from the extra-
dition papers that the person charged received checks for money
due a municipality, and deposited them in bank to the credit of
the corporation, but that he accounted for only a portion, suffi-
cient proof is presented to warrant his delivery. Whether the
amount unaccounted for, as appeared from the evidence, was
greater or less than the amount charged is, in such a case, im-
material.66
§ 318. Law of the place. — In applying in particular cases the
definitions of crimes named in a treaty, the jurisdiction and legis-
lation of the particular places of arrest will be determining fac-
tors.67 Where a murder is committed on the high seas, on board
62 People v. Gray, 66 Cal. 271, 5 firmed, Oteiza v. Jacobs, 136 U. S.
Pac. 240. 330, 10 Sup. Ct. Eep. 1031, 34 L. ed.
63 Blandford v. State, 10 Tex. App. 464.
627. ce In re Breen, 73 Fed. 458.
64 In re Reiner, 122 Fed. 110. 6T In re Muller, Fed. Gas. No. 9913.
65 In re Cortes, 42 Fed. 47; af-
' 357 LAWS OF THE PLACE OF REFUGE. [§ 319
of a British war vessel, it, within the meaning of the treaty of
extradition of 1794, was within the jurisdiction of Great Britain,
and the government of the United States, should the accused be
found in the country, is compelled to surrender him.68 Forgery,
as defined and recognized by the courts of England, does not in-
clude the making of false entries in the usual books of account,
or memoranda on slips directing such entries by others, made by
an officer or employee of a bank, for the purpose of concealing
embezzlements made by him. A person will be discharged on
habeas corpus where he is held to extradition for forgery and the
only proof consists of such acts committed in England.69
§ 319. Laws of the place of refuge. — Under a treaty between
the United States and France, it was provided that the laws of
the place of refuge were to be applied to the investigation, as if
the crimes had been committed at the place of arrest, but it was
held that on the question whether an extraditable offense had
been committed or not, the laws of France, and not those of the
' United States, should form the basis of inquiry.70
The term "forgery," as used in the treaty between Austria-
Hungary and the United States, includes the crime of uttering
forged papers.71 The third article of the treaty between the
United States and Salvador, in defining murder, states that it
comprehends "the crimes designated in the penal codes of the
contracting parties by the terms 'homicide,' 'patricide,' 'assas-
sination,' 'poisoning' and 'infanticide.' : The Penal Code of San
Salvador defines murder as homicide "committed with premedi-
tation and under one of the following circumstances: (1) With
perfidy or a breach of trust; (2) for a price or promise of re-
ward; (3) by means of flood, fire or poison. The crime of
murder will be punished with the penalty of death." The same
code defines homicide as the killing of another "with premedita-
68 United States v. Bobbins, Fed. crime for which extradition may be
Cas. No. 16,175; United States v. had, although the crime is not sub-
Cooper, Whart. St. Tr. 659, Fed. Cas. ject to such punishment in the United
No. 14,865. States. In re Farez, Fed. Cas. No.
69 In re Tully, 20 Fed. 812. 1645, 7 Blatchf. 345. See as to.mur-
70 In re Metzger, Fed. Cas. No. der and manslaughter, In re Kelley,
9511. Under the treaty with Switzer- Fed. Cas. No. 7655, 2 Low. 339; In
land, a crime subject to infamous re Palmer, Fed. Cas. No. 10,679.
punishment in that country is a 71 In re Adult, 55 Fed. 376.
§ 320]
TREATIES OF EXTRADITION AND PROCEEDINGS.
358
tion, and without any of the circumstances enumerated in the
preceding article, or under some one of said circumstances, and
without premeditation." The penalty for homicide is punish-
ment at hard labor. It was held that homicide as thus denned
constituted murder within the meaning of the treaty.72 But
where a person was killed in Salvador by the President and his
officer under the jurisdiction of the military law of that country,
the offense is not extraditable.73
§ 320. Forgery in the third degree. — The Mexican government
held that the making of original false entries in books of account,
constituting forgery in the third degree under the law of Missouri,
did not constitute forgery within the meaning of the treaty which
in the Spanish text employed the word * ' f alsificacion. ' ' 74 But
where a treaty uses general terms, such as ' t murder " or ' ' arson, ' '
it does not follow that their meaning is to be interpreted solely
by the common law, but they may be interpreted according to
the law of the two countries as it exists when extradition is
sought.75
72 In re Ezeta, 62 Fed. 972.
7:5 In re Ezeta, 62 Fed. 972.
7* Mr. Foster, Secretary of State,
to Mr. Byan, Minister to Mexico, No.
837, October 17, 1902, MS. Inst. Mex-
ico, XXIII, 288.
75 Cohn v. Jones, 100 Fed. 639. A
case came before the United States
circuit court for the northern dis-
trict of California on a petition for
a writ of habeas corpus, where, among
other questions, the point was urged
that under the treaty with Japan
forgery was not committed where a
signature was obtained to a paper
by fraud. It appeared that a mer-
cantile firm in Japan had been in the
habit of furnishing military machin-
ery and supplies to a Japanese ar-
senal, and for several years had em-
ployed the accused to receive the sup-
plies and to verify the statements
furnished, while all the pecuniary
transactions were attended to by a
member of the firm, which had been
in the habit of furnishing their state-
ments and invoices in French. The
accused, however, stated to the man-
aging partner that it would be more
convenient for those in charge of the
arsenal if the invoices should in the
future be made out in Japanese, and
to such procedure consent was given.
The accused presented to the manag-
ing partner, written entirely in Jap-
anese, what purported to be an in-
voice, but which in reality was a re-
ceipt on which the accused collected
money. It was contended on one side
that this constituted forgery, because
the accused had made his employer
his unconscious agent in completing
the document; while, on the other, it
was urged that the act constituted
either embezzlement or obtaining
money by false pretenses, offenses
not extraditable. Another charge was
also made against the prisoner of al-
359 RETROACTIVE EFFECT OF TREATIES. [§ 321
§ 321. Retroactive effect of treaties. — An extradition treaty
is not in the nature of an ex post facto law within the meaning
of the Constitution, and hence, unless a clause is inserted to the
contrary, it will cover offenses committed prior to its ratifi-
cation.70 An extradition treaty was concluded February 22,
1899, between the United States and Mexico, which provided in
its eighteenth article that it "shall take effect from the date of
exchange of ratifications, but its provisions shall be applied to all
cases of crimes or offenses enumerated in article II which may
have been committed since the twenty-fourth day of January,
1899." Mr. Hay, Secretary of State, in a note to the Mexican
Ambassador, stated that while the Department of State did not
deem the question entirely free from doubt, it had reached the
conclusion that in view of the stipulations contained in the eigh-
teenth article, the treaty did not authorize extradition for offenses
committed prior to January 24, 1899.77 In his annual message of
December 7, 1903, President Roosevelt said: "Steps have been
taken by the State Department looking to the making of bribery
an extraditable offense with foreign powers. The need of more
effective treaties covering this crime is manifest. ' ' 78
Charles Kratz, charged with the commission of bribery in
Missouri, fled to Mexico, and in October, 1903, the United States
asked for his extradition, although at the time when the offense
was committed the crime was not included in the treaty of extra-
dition between the United States and Mexico, but was embraced
in a supplemental convention, which subsequently became opera-
tive. The law of Mexico of 1897 authorized extradition to be
granted where there was no treaty covering the subject, on the
promise that reciprocity would be made. The United States,
basing its action on the latter convention, made a promise of
reciprocity, saying that according to the decision of the federal
courts, an extradition treaty has, in the United States, a retro-
tering the figures in an instrument, 7C In re Giacomo, Fed. Gas. No.
so that the first question became in- 3747, 12 Blatchf. 391. This is the
volved in the second, and practically general rule. Twiss ' Law of Nations,
was not necessary to be decided. ed. 1884, 411.
The writ of habeas corpus was denied " July 11, 1899, MS. Notes to Mex-
and the prisoner remanded. In re ican Leg., X, 469, No. 17.
Oyama Kenichi, No. 12,579, decided 78 For. Eel. 1903, XV.
April 8, 1898.
§§ 322, 323] TREATIES OF EXTRADITION AND PROCEEDINGS. 360
active operation, where no express stipulation to the contrary
exists, and accordingly the extradition of Kratz was, after exam-
ination, effected.79
§ 322. Special stipulation as to time of taking effect. — If,
however, a treaty expressly provides that it shall not apply to
crimes committed anterior to its date, and it specifies no date when
it shall take effect, the date of its conclusion will be deemed the
date on which it becomes effective.80 But where the treaty de-
clares that it shall not apply to offenses committed prior to its
date, and that it shall take effect twenty days after the exchange
of ratification, the treaty will apply to an offense committed the
day after the exchange of ratifications, as the reference to the
date of the treaty was either the date of the signing or the date
of the exchange of ratifications, and not the time when it should
take effect.81 A statute of a state making an act a crime,
enacted after the date of a treaty, will sustain an application
for extradition, where the statute was in force at the time when the
offense was committed and when the application was heard.82
§ 323. Extradition of citizens. — In many of the extradition
treaties it is expressly provided that neither of the contracting
powers shall be obliged to deliver up its own citizens. But it is
not necessary for the government seeking extradition to allege
or prove that the fugitive is not a citizen of the demanding gov-
ernment. Citizenship is a matter of defense.83 But the United
States "is ever ready to annul or to narrow the exemptions con-
tained in its extradition treaties based on the citizenship of the
fugitive."84 Citizenship is not conferred by a declaration of
intention to become a citizen.85 Where a different mode of trial
79 Tor. Eel. 1903, 674. 82 In re Muller, Fed. Gas. No. 9913.
80 Matter of Metzger, 5 N. Y. Leg. s:i Mr. Gresham, Secretary of State,
Obs. 83. to the Attorney General, May 22, 1893,
81 In re Vandervelpen, Fed. Gas. No. .192 MS. Dom. Let. 82.
16,844, 14 Blatchf. 137. In this case 84 Mr. Olney, Secretary of State, to
the treaty was between the United Mr. Ransom, Minister to Mexico, De-
States and Belgium, and the date of cember 13, 1895, For. Eel. 1895, II,
the signing of the treaty was March 1008, 1009.
19, 1874. The exchange of ratifica- M Mr. Olney, Secretary of State,
tions was effected on April 30, 1874, to Mr. Tounsend, November 13, 1896,
and the crime for which extradition 213 MS. Dom. Let. 680, in the case
was sought was committed in Belgium of Antonio Vizcarra.
en May 1, 1874.
361 TREATY PROVISIONS. [§ 324
is not prescribed by the treaty, an American citizen ' who is
charged with crime in a foreign country cannot complain if he
is forced to yield to such modes of trial and punishment as the
laws of such country provide for its own people.86 Yet a gov-
ernment may refuse to subject its citizens to forms of trial
unknown to its laws and abhorrent to its government and people.87
The treaty concluded between the United States and the
Argentine Republic, September 26, 1896, provided that in no case
should the nationality of the accused be an impediment to his ex-
tradition, but the Senate of the United States, January 28, 1898.
amended the treaty by adding the clause, "but neither govern-
ment shall be bound to deliver its own citizens for extradition
under this convention; but either shall have power to deliver
them up, if, in its discretion, it be deemed proper to do so." This
amendment was inserted in the treaty as ratified and proclaimed
lay the two governments.88
§ 324. Treaty provisions. — The Italian penal code forbids the
extradition of Italian subjects. The United States, in 1890, de-
manded the extradition of two Italians, who had committed
murder in the United States and had fled to Italy. The Italian
government refused to surrender, but they were arraigned under
the Italian law for crimes committed in the United States and
were convicted.89 Mr. Elaine contended in the diplomatic cor-
86 Neely v. Henkel, 180 U. S. 109, States. He said: "I have had the
21 Sup. Ct. Eep. 302, 45 L. ed. 448. honor to receive your note of the
87 Mr. Fish, Secretary of State, to 20th of April last, in relation to the
Mr. Jewell, May 9, 1874, MS. Inst. cases of the two Italian subjects, Bevi-
Kussia, XV, 426. vino and Villella, who, having com-
88 Mr. Day, Secretary of State, to mitted murders in the United States
Mr. Viso, May 26, 1898, MS. Notes of a most aggravated and atrocious
to Argentine Leg., VII, 29. character, have sought asylum in their
89 One received a sentence of twenty own country, which has refused to
years' imprisonment and the other of comply with the demand of this gov-
fifteen years. Mr. Gresham, Secretary ernment, based upon treaty, for their
of State, to the governor of Penn- extradition. The immediate occasion
sylvania, January 31, 1894, 195 MS. of your note was the reply made by
Dom. Let. 329. me to your request for the execution
Mr. Elaine, Secretary of State, in in this country of letters rogatory is-
his note to the Italian Minister, Baron sued by a court in Italy, before which
Fava, of June 23, 1890, expressed the two fugitives have been arraigned
the views on the subject entertained for trial, under Italian law, for the
by the government of the United crimes committed in the United States.
§ 324]
TREATIES OP EXTRADITION AND PROCEEDINGS.
362
respondence on the subject that citizens were not exempted from
surrender by international law, and that it had been well under-
stood when dealing with the United States that "citizens" were
In that reply I stated that, with a
view to preventing, if possible, the
total defeat of the ends of justice
in the cases in question, I would for-
ward the letter to the governors of
the States of Pennsylvania and New
York for such action as they might
find it proper to take, the letters be-
ing respectively addressed to the au-
thorities in those States. At the same
time I took occasion to reserve what
I regarded as the clear right of the
Government of the United States, un-
der the treaty with Italy, -to require
the delivery of the fugitives for trial
in this country.
' ' In answer to this you remind me
that this question has been discussed
at length and entirely settled by the
royal ministry of foreign affairs and
the United States legation at Kome;
that Mr. Stallo, lately the minister
of the United States to Italy, must
have informed this Department that,
according to Italian law, no citizen
can be removed from the jurisdiction
of his natural judges, the judges of
his own country; and that, although
an exception is made to this principle
when a citizen who has committed a
crime in a foreign country is there
arrested, it nevertheless resumes its
force when he returns to his own
country. You also state that the new
Italian penal code expressly forbids
the extradition of Italian subjects, and
declare that this principle now forms
a part of public law, which the United
States has recognized in many of its
treaties
"You are correct in your supposi-
tion that Mr. Stallo informed the De-
partment of the provisions of Italian
law on the subject, but the Depart-
ment is surprised to learn that the
Government of Italy entertair.s the
impression that the question was set-
tled by the royal ministry of foreign
affairs and the United States lega-
tion at Eome. In various interviews
with the royal ministry of foreign
affairs reported by him to the De-
partment, as well as in formal com-
munications addressed to that minis-
try, Mr. Stallo protested against the
position of the Italian Government;
and the Department is not informed
of anything said or written by him
that savored of acquiescence
' ' In order to understand the pres-
ent controversy, it is necessary to re-
vert to its origin. It did not arise
in the cases of Villella and Bevivino,
but in that of Salvatore Paladini,
whose extradition Mr. Stallo, on May
17, 1888, demanded of the Italian
Government on a charge of passing
counterfeit money of the United
States, for which Paladini was under
indictment in the district court of
the United States for the district of
New Jersey On October 25,
Mr. Crispi, more than 5 months after
the original demand, announced that,
according to the Italian procedure,
the minister of grace and justice had
submitted the demand to the succes-
sive examination of the criminal sec-
tion of the court of appeals of Mes-
sina, of the council of state, and of
the council of ministers, and that
they were unanimously of opinion that
Paladini should not be extradited, for
the reason that he was an Italian
subject. This opinion, he said, was
based upon certain principles, which
he stated. It is unnecessary to re-
count them, since they are the same,
363
TREATY PROVISIONS.
[§ 324
embraced by the general term "persons," and unless they were
expressly exempted by the language of the treaty, they should
be extradited when a proper application was made for that pur-
in almost the same language, as those
set forth in your note.
* * In January, 1899, the Department
received from Governor Beaver, of
Pennsylvania, information that two
Italians, named Vincenzo Villella and
Giuseppe Bevivino, charged with the
commission of atrocious murders in
Luzerne County, Pa., had taken refuge
in Italy. The Department at once
telegraphed information of the facts
to the legation at Borne. Mr. Stallo
saw the minister of foreign affairs,
and, laying the facts before him, was
assured that measures would at once
be taken for the arrest of the ac-
cused and i or their eventual trial in
Italy as soon as he could give their
names, which he was at that time un-
able to do, owing to a confusion in
the telegrams.
"On January 30, 1889, Governor
Beaver made a formal request that
the extradition of the fugitives be de-
manded. He had been informed of
the attitude of the Italian Govern-
ment in the case of Paladini, but
because of the importance of inflict-
ing punishment upon the criminals in
Pennsylvania, and influenced by an
opinion which, he had been informed,
had been expressed by the Italian
consul at Philadelphia to the effect
that the fugitives would be given up,
he asked the Department to endeavor
to obtain their surrender. A Presi-
dent's warrant was accordingly is-
sued to John B. Saville and Frank
P. Dimaio, the persons designated by
Governor Beaver to receive the fugi-
tives, and Mr. Stallo was so informed.
These agents, Mr. Stallo was also in-
formed, would take with them authen-
tic proof of the guilt of the fugi-
tives, and upon arriving in Italy
would proceed at once to Borne to
consult with him. Meanwhile he was
to ascertain whether the extradition of
the fugitives could be obtained, and
to apply to the Italian Government
for that purpose.
"On February 20, Mr. Stallo ac-
knowledged the receipt of the papers,
which he transmitted to the foreign
office, with an application for the fu-
gitive's surrender, coupled with an
expression of the earnest desire of
the United States that the determina-
tion in the Paladini case should be
reconsidered. Mr. Stallo also called
attention to the fact that the princi-
pal witness against the two fugitives
was their accomplice, Michele Bizzolo,
who was under arrest at Wilkes-Barre,
in Pennsylvania, and had made a full
confession, and that it was imprac-
ticable to bring this witness, either
before or after his trial, to Italy in
order to testify before an Italian
court.
"On the 7th of March, Mr. Stallo
enclosed to the Department a note
from Mr. Crispi, bearing date of the
preceding day, in which the surrender
of the fugitives was refused. The
reasons given were the same as those
stated in the case of Paladini.
"It was in view of the total di-
vergence of opinion between this Gov-
ernment and that of His Majesty, de-
veloped in the preceding correspond-
ence, that I deemed it necessary to
make the reservation contained in my
note of the 21st of March last. I
shall now endeavor to show that that
reservation was not only justified, but
also required, by the circumstances.
§ 324]
TREATIES OF EXTRADITION AND PROCEEDINGS.
364
pose. The chief purpose of entering into extradition treaties,
he said, was to assure the punishment of the criminal at the place
where the crime wras committed.
• ' i do not understand the Italian
Government to deny that the provi-
sions of the treaty of 1868, if not
obstructed by any municipal statute
or qualified by any principle of in-
ternational law, would oblige the con-
tracting parties to deliver up their
citizens. Indeed, I assume this to be
admitted. The treaty says that the
two governments mutually agree to
deliver up 'persons who, having been
convicted of or charged with the crime
specified in the following article com-
mitted within the jurisdiction of one
of the contracting parties, shall seek
an asylum or be found within the ter-
ritories of the other.' As the term
'persons' comprehends citizens, and
as the treaty contains no qualifica-
tion of that term, it is unnecessary
to argue that the treaty standing alone
would require the extradition by the
contracting parties of their citizens or
subjects.
"I shall also assume it to be ad-
mitted by. the Italian Government that
the parties to a treaty are not per-
mitted to abridge their duty under it
by a municipal statute. It is true
that the authorities of a country may,
by reason of such a statute, find them-
selves deprived of the power to exe-
cute a treaty. But if, in obeying the
statute, they violate or refuse to ful-
fill the treaty, the other party may
justly complain that its rights are
disregarded and may treat the conven-
tion as at an end. Hence, in appeal-
ing to its statutes to justify its ac-
tion in the present case, T understand
the position of the Italian Govern-
ment to be that those statutes are
merely declaratory of the law by
which nations are bound to be gov-
erned in their dealings one with an-
other.
1 ' We are brought, therefore, to the
consideration of the question whether
the refusal of the Italian Government
to deliver up Paladini, Villella, and
Bevivino, under the treaty of 1868,
is justified by the principles of inter-
national law. The answrer to be given
to this question must be decisive of
the matter.
"It is stated — and the statement
has the sanction of the eminent Italian
publicist, Fiore — that the refusal to
surrender citizens had its origin in the
practice of extradition by France and
the Low Countries in the eighteenth
century. Formerly such an exception
was not recognized. Even the Eom-
ans, who were not wanting in a dis-
position to assert their imperial pre-
rogatives, did not refuse to deliver
up their citizens, their feciales being
invested, in respect to states in alli-
ance with Kome, with authority to
investigate complaints against Roman
citizens and to surrender them to jus-
tice if the complaints were found to
be well grounded. The exception of
their citizens by France and the Low
Countries originated in the following
manner :
' ' The two countries practiced ex-
tradition, not under a convention, but
under independent declarations of a
general character. By the Braban-
tine Bull, issued by the German Em-
peror in the fourteenth century, sub-
jects of the Duke of Brabant enjoyed
the privilege of not being withdrawn
from his jurisdiction. A similar
privilege was gradually extended by
law and usage to other subjects of
the House of Austria, while the Low
365
POSITION OF THE UNITED STATES.
[§ 325
§ 325. Position of the United States.— In 1894 the Minister
of Italy submitted a draft of a supplementary extradition treaty,
providing that neither party should be obliged to surrender its
Countries were still under its do-
minion. In consequence of the es-
tablishment of this rule, the Low
Countries refused to deliver up their
subjects, and France, as an act of
retaliation, refused to surrender
Frenchmen. Thus, not in recognition
of any principle, but merely with a
view to observe a strict reciprocity,
was the precedent first established.
1 ' That the example thus set has
generally been followed by European
states is not to be questioned; for,
with the single exception of England,
it is believed that they have adopted
the rule of refusing to deliver up
their citizens. But, in order to de-
termine the force and effect of this
rule from the point of view of inter-
national law, it is necessary to in-
quire how it has been secured and
enforced. Where no treaty exists, the
subject is simple. It is generally
agreed that, in the absence of a con-
vention extradition is a matter of
comity, and not of positive obliga-
tion. In such case, each nation is
free to regulate its conduct according
to its owft discretion. If it declines
to surrender its citizens, its action,
though detrimental to the interests of
justice, does not afford ground for
Complaint or pressure, since it is
acting within its right. But, where
the subject is regulated by treaty,
the case is different. What before
was a matter of comity and discre-
tion, becomes a matter of duty, and
the measure of that duty is the treaty.
It is not strange, therefore, that, in
order to avoid the obligation to ex-
tradite their citizen, the states of
Europe have industriously inserted in
their treaties an express stipulation
to exempt themselves from that ob-
ligation. With respect to those who
are to be surrendered, they usually
employ, as is done in the treaty be-
tween the United States and , Italy,
the general term 'persons.' Having
used this term, they then proceed to
insert a clause to except their citi-
zens from the general obligation; and
it is by means of this clause, and
not by reason of an implication cre-
ated by international law, that the
duty of surrender is avoided.
"More cogent proof of this fact
could not be found than is afforded
by the extradition treaties of the
United States with European nations,
to which you refer for the purpose
of showing that this Government has
recognized the exemption of citizens
by international law. Among those
treaties is that with Prussia and other
German states, concluded June 16,
1852, which is the first in which the
United States admitted an exception
of citizens. It is a part of the pub-
lic history of extradition that for
years the Government of the United
States refused to negotiate treaties
for the surrender of fugitives from
justice with several of the states of
Europe, because, owing to the limita-
tions of their domestic laws, they in-
sisted upon the insertion of a clause
to exempt their citizens. It was for
this reason alone that this Govern-
ment, in order to avoid the misfor-
tune of a total lack of extradition,
finally admitted the exception. Ac-
cordingly, we find in the preamble
to the treaty with Prussia and other
German states, the following recital:
'Whereas it is found expedient for
the better administration of justice
§ 325]
TREATIES OF EXTRADITION AND PROCEEDINGS.
366
own citizens or subjects, but to this proposal Mr. Gresham, Sec-
retary of State, replied: "The President is unwilling to enter into
any treaty of extradition which will exclude citizens or subjects
and the prevention of crime within
the territories and jurisdiction of the
parties respectively that persons com-
mitting certain heinous crimes, being
fugitives from justice, should, under
certain circumstances, be reciprocally
delivered up, and also to enumerate
such crimes explicitly; and whereas
the laws and constitution of Prussia,
and of the other German states, par-
ties to the convention, forbid them
to surrender their own citizens to a
foreign jurisdiction, the Government
of the United States, with a view of
making the convention strictly recip-
rocal, shall be held equally free from
any obligation to surrender citizens
of the United States: Therefore, etc.'
"This recital, it is to be observed,
was not a declaration by the United
States alone, but by both parties, of
the reason for the exclusion of citi-
zens. The same declaration is found
in the treaty with Bavaria of 1853,
with Austria-Hungary of 1857, with
Baden of 1857, and with various
German states by virtue of their
accession to the treaty with Prussia,
which was, in 1868, finally extended
to the whole of the north German
Confederation.
"In the record of the negotiation
of the treaty with Italy no reference
is found to the subject of citizens.
What may have been said in the oral
discussions cannot now be discovered.
It is, however, a matter of record in
this Department that in the same
year, 1868, Mr. Seward, who, as Sec-
retary of State, signed the treaty on
the part of the United States, re-
fused to conclude a convention with
Belgium because she insisted upon the
exception of her citizens. In this re-
lation I may advert to another fact
which possesses great significance.
The treaty of extradition concluded
between the United States and Italy
in 1868 was one of two treaties con-
cluded between those countries in that
year, the other relating to the rights
and privileges of consuls. These
treaties were designed to take the
place of the treaties formerly made
between the United States and the
independent states of Sardinia and
the Two Sicilies. In the treaty with
the latter Government of 1855, there
were stipulations relating to extradi-
tion, and among them was the follow-
ing provision : l The citizens and sub-
jects of each of the high contracting
parties shall remain exempt from the
stipulations of the preceding articles,
as far as they relate to the sur-
render of fugitive criminals.' (Arti-
cle XXIV.)
' ' In view of. the existence of this
clause in the treaty with the Two Sici-
lies, it can scarcely be supposed that
the parties to the substitutionary ar-
rangement of 1868, negotiated that
instrument in oblivion of* the ques-
tion as to citizens. And when we
consider the omission of the clause,
especially in conjunction with Mr.
Seward 's refusal to negotiate with
Belgium, the inference seems to be
morally irresistible that the obliga-
tion to deliver up their citizens, un-
der the treaty of 1868, was fully un-
derstood by the contracting parties
at the time of its conclusion.
"From what has been stated I am
forced to conclude, not only that inter-
national law does not except citizens
from surrender, but also that it has
been well understood, especially in
367
POSITION OF THE UNITED STATES.
[§ 325
of either country from its operations. No good reason is per-
ceived why citizens of the United States who commit crimes in
Italy, or Italian subjects who commit crimes in the United States,
dealing with the United States, that
the term ' persons' includes citizens
and requires their extradition, unless
they are expressly exempted.
' ' Nor am I able to find sufficient
ground for the refusal to surrender
citizens in the general principles on
which extradition is conducted. It
does not satisfy the ends of justice to
say that, although a nation does not
extradite its citizens, it undertakes to
try and punish them. This argument
may be admitted to have great force
where, by reason of the absence of
any conventional assurance of reciproc-
ity, a nation declines a demand ad-
dressed to its discretion. But the
chief object of extradition is to se-
cure the punishment of crime at the
place where it was committed, in ac-
cordance with the law which was then
and there of paramount obligation.
It is for this purpose that extradi-
tion treaties are made, and, except in
so far as their stipulations may pre-
vent the realization of that design,
they are to be executed so as to give
it full effect. It is at the place
where the offense was committed that
it can most efficiently and most cer-
tainly be prosecuted. It is there that
the greatest interest is felt in its
punishment and the moral effect
of retribution most needed. There,
also, the accused has the best oppor-
tunity for defense, in being con-
fronted with the witnesses against
him; in enjoying the privilege of
cross-examining them; and in exer-
cising the right to call his own wit-
nesses to give their testimony in the
presence of his judges. These and
other weighty considerations, which
it is not necessary to state, have led
what I am inclined to regard as the
great preponderance of authorities on
international law at the present day
to condemn the exception of citizens
from the operation of treaties of ex-
tradition. In France I need only to
refer to such well-known writers on
extradition as Billot and Bernard.
In Italy I may refer again to the
eminent publicist Fiore, who says
that, in spite of all that has been
said on the subject, his opinion is that,
while in former times the absolute
prohibition against the surrender of
citizens had some reason for its ex-
istence, it is insisted upon to-day
rather as one of numerous conven-
tional aphorisms, accepted without
searching discussion for fear of show-
ing too little regard for national dig-
nity (Traite de Droit Penal Int., sec-
tion 362). I will not extend the
length of this note by citing other
books, but, as showing the general
view of eminent publicists, will refer
to two resolutions of the Institute of
International Law, adopted at the
session at Oxford in 1881-82. Those
resolutions are as follows:
" 'VI. Between countries whose
criminal legislation, rests on like bases,
and which should have mutual confi-
dence in their judicial institutions,
the extradition of citizens would be
a means to assure the good adminis-
tration of penal justice, since it ought
to be regarded as desirable that the
jurisdiction of the forum delicti com-
misi should, so far as possible, be
called upon to judge.
'"VII. Admitting it to be the
practice to withdraw citizens from
extradition, account ought not to be
taken of a nationality acquired only
§ 325] TREATIES OF EXTRADITION AND PROCEEDINGS. 368
should not, if they take refuge in their own country, be delivered
up by its authorities to the country whose laws they have violated.
A refusal to surrender them would result, in the case of Ameri-
cans committing crime in Italy, in an utter failure of justice ; and
though Italy may undertake to punish her subjects who, after
committing crime here, return within her jurisdiction, yet the
means of ascertaining the truth and doing justice must, under
such conditions, always be difficult and often unattainable."90
It was decided by the courts oi: Switzerland that under the
terms of the treaty between that country and the United States, a
person charged with the commission of embezzlement in the
United States, and who resisted extradition on the ground that
he was a citizen of Switzerland and not subject to surrender,
should, nevertheless, be delivered up. The treaty of 1850 be-
tween these two countries provided for the surrender of persons
charged with crime, and had no stipulation exempting the citi-
zens of the contracting parties from surrender. The stipulation
was made in general terms, and no distinction was made between
strangers and citizens.91
In 1893 the United States refused to surrender a person who
had been committed for extradition to Mexico, under the terms
of a treaty providing that the contracting parties should not be
after the perpetration of the act for require either the denunciation of that
which extradition is demanded. treaty or the conclusion of new
(Annuaire, v. 1881-82, pp. 127, 128.) ' stipulations upon which the contract-
' ' At the session at which these ing parties will find themselves in
resolutions were adopted seventeen agreement. If, as a part of those
members and eight associates of the stipulations, citizens should be ex-
institute were present, including some cepted, it would be essential to reach
of the most eminent publicists in Eu- an understanding as to the effect of
rope, and representing Italy, Ger- naturalization. These matters it is
many, Austria, Belgium, Spain, not my purpose to discuss on the
France, Great Britain, Greece, Kussia, present occasion, but I deem it my
and Sweden. duty to suggest them for considera-
' ' In view of what has been shown, tion. ' ' Mr. Blaine, Secretary of
I am unable to discover any ground State, to Baron Fava, Ital. Min., June
of reconciliation of the totally oppo- 23, 1890, For. Eel. 1890, 559.
site views entertained by the United ao For. Eel. 1894, 361, 364; 4 Moore
States and Italy in regard to the force Ent. L. Dig. 297.
and effect of the treaty of 1868, un- 91 Mr. Washburne, Minister to
less 'the Government of Italy will re- Switzerland, to Mr. Blaine, Secretary
consider its position. The present of State, No. 50, March 23, 1891, 28
situation, therefore, seems to me to MS. Desp. from Switzerland.
369 UNDER THE MEXICAN LAW. [§ 326
bound to deliver up their own citizens. This action was placed
on the ground that it appeared from the evidence that he was a
citizen of the United States.92
§ 326. Under the Mexican law. — Under the Mexican law a
foreigner acquiring real estate becomes a citizen, and on this
ground the Mexican government, in 1895, refused to surrender to
the United States a fugitive from justice who had purchased
real estate in Mexico.93 The treaty of 1899 between the United
States and Mexico, while providing that neither party shall be
bound to deliver up its own citizens, also contains a stipulation
that ''the executive authority of each shall have the power to
deliver them up, if, in its discretion, it be deemed proper to do
so." In that year a woman charged with the murder of her
husband in Mexico, although both were American citizens, was
delivered up.94 In 1884 the United States declined to surrender
Alexander Trimble, an American citizen, to Mexico, on charges
of robbery and murder, basing its refusal on the ground that the
President was not authorized to act, as the treaty negatived any
obligation of this character.95 In 1878 certain Mexicans who had
taken part in an assault on a jail in Texas were ordered surren-
dered, but before the order was carried into effect the governor
of Texas made the issuance of the order the foundation of a de-
mand for the extradition of other Mexicans as a matter of
right, and on this ground the order was withdrawn.96 In 1878
Mexico signified its willingness to grant the extradition of its
citizens if it could receive a formal assurance of reciprocity.
Mr. Evarts stated that he did not deem himself clothed with au-
thority to give such a general pledge, and added: "Cases, how-
ever, may, and probably will, occur in which the President would
not hesitate to exercise in due form whatever discretion in such
matters might rest with him, were adequate provisions made by
92 Mr. Gresham, Secretary of State, Minister of Foreign Affairs, to Mr.
to Mr. Romero, Mexican Minister, Butler, Charge , January 23, 1896, For.
May 13, 1893, Notes to Mexico, IX, Rel. 1895, II, 1010.
664. 94 For. Rel. 1899, 497-501.
93 4 Moore Int. L. Dig. 303; Mr. 95 Report of Mr. Frelinghuysen, in
Olney, Secretary of State, Minister Sen. Ex. Doc. 98, 48th Congress, 1st
to Mexico, December 13, 1895, For. Session.
Rel. 1895, II, 1008; Mr. Mariscal, 96 For. Rel. 1878, 534, 539, 540.
Treaties — 24
§§ 327, 328] TREATIES OF EXTRADITION AND PROCEEDINGS. 370
Congress to that end. In the absence of any provisions of law
for the extradition of criminals in cases not covered by treaty
obligations, it is very apparent that this government must re-
serve the right to decide upon its own circumstances each case
which may be brought to its notice by your government. ' ' 97
§ 327. Citizen of another country. — But while under a treaty
American citizens may not be surrendered, this principle does not
apply to the citizens of another country found within the limits
of the United States. The correct view was expressed by Mr.
Marcy: "If a Mexican citizen should commit a crime in England
and flee to the United States, there is no doubt in my mind that
this government would have a right to surrender him as a fugi-
tive on a requisition under our treaty of extradition with her. ' ' 98
Hence it is not necessary that a foreign government should prove
that the person whose extradition is sought is one of its citizens,
"for its right to demand extradition is not limited to the case
of its own citizens, but extends to all cases, save that of Ameri-
can citizenship/'99
§ 328. Political offenses. — Extradition will not be granted for
political offenses. It may be difficult, however, in many in-
stances, to determine whether an offense is political within the
sense of the term as used. On an application for extradition it
is only necessary to show probable cause. As said by Chief Jus-
tice Marshall: "I certainly should not require that proof which
would be necessary to convict the person to be committed, on a
trial in chief, nor should I even require that which should abso-
lutely convince my own mind of the guilt of the accused. But
I ought to require, and I should require that probable cause be
shown, and I understand probable cause to be a case made out
by proof, furnishing good reason to believe that the crime alleged
has been committed by the person charged with having com-
97 1 Moore on Extradition, 166. 54, October 22, 1855, MS. Mexico,
Other instances may be found cited XVII, 54.
in 1 Moore on Extradition, 166, show- " Mr. Gresham, Secretary of State,
ing the application of this principle. to the Attorney General, May 22,
98 Mr. Marcy, Secretary of State, to 1893, 192 MS. Dom. Let. 82.
Mr. Gadsen, Minister to Mexico, No.
371 FINAL DECISION AS TO QUESTION. [§§ 329, 330
mitted it. ' ' 10° It is the duty of a committing magistrate to de-
termine whether the offense alleged is of a political nature.101
§ 329. Final decision as to question. — As different views pre-
vail as to what acts constitute a political offense, the final de-
cision must rest with the government in which the fugitive has
found refuge.102 The United States cannot consent that a Ger-
man city shall surrender to a German state, on the ground of
dereliction in military service, a citizen of the United States
who is temporarily residing in such city.103
Under the law of the state of New York authorizing the gov-
ernor to surrender to foreign government any person found with-
in the state charged with the commission of any crime that, if
committed in New York, would be punishable with death or im-
prisonment in the state prison, the governor of New York, in
1822, refused to surrender a person charged with murder, arson
and robbery, where it appeared that the acts constituting the of-
fense were committed by a band of from six hundred to fifteen
hundred persons, who had armed themselves and had commenced
an insurrection for the redress of alleged grievances.104
§ 330. Some instances. — During the progress of the Civil
War, in 1863, an American vessel loaded with cotton, en route
from Mexico to New York, was seized by passengers on board
in the name of the Confederate government. Four of the of-
fenders were arrested in Liverpool, their extradition having been
requested on a charge of piracy. The case was finally decided
on the ground that even if the acts constituted piracy, it was not
such piracy as the treaties had in view, which the court con-
sidered to be piracy under municipal statutes.105
In 1864 one Burley, who professed to act on behalf of the Con-
federate government, seized an American boat, in American wa-
ters, not far from the shore of the state of Ohio. Burley was
brought to Toronto, Canada, and his extradition was demanded
on the charges of piracy, robbery and assault with attempt to
100 1 Burr's Trial, 11. Mr. Schleiden, April 9, 1859, MS.
101 In re Ezeta, 62 Fed. 972. Notes to Hanse Towns, VII, 31.
302 Lord Derby to Colonel Hoffman, 104 MS. Misc. Let., December 30,
May 4, 1876, For. Eel. 1876. 1837.
103 Mr. Cass, Secretary of State, to 10<s In re Tivnam, 5 Best & S. 645.
§ 331] TREATIES OF EXTRADITION AND PROCEEDINGS. 372
commit murder. He was remanded to Ohio for trial, the judges
of Canada taking the ground that a prima facie case of robbery
was clearly established.106 But in 1864 certain persons who or-
ganized an expedition in Canada came to the town of St. Albans,
in Vermont, and raided that town, committing many acts of vio-
lence. It appeared that the leader had a commission under the
Confederate states, and he claimed that in making the raid he
was acting as an officer, and that his companions were soldiers
acting under his authority and command. It was held by the
Canadian authorities that the attack was a hostile expedition,
authorized both expressly and impliedly by the Confederate
states.107
§ 331. Raid at San Ignacio. — Three Mexicans, named Inez
Ruiz, Juan Duque and Jesus Guerra, were a part oi! an armed
band who, crossing the Bio Grande from Texas to Mexico, De-
cember 10, 1892, attacked a garrison of soldiers stationed at the
village of San Ignacio. This band wounded and killed some of
the soldiers and captured others, whom they subsequently released.
The band likewise burned the barracks of the soldiers and took
away their horses and equipments, assaulted private citizens,
burned houses in the village, extorted money from the inhabit-
ants, and appropriated clothes and provisions. The raiders
kidnaped three citizens and carried them over the boundary
into Texas, although they afterward escaped. A revolutionary
movement took place in Mexico under Garza in 1891, but Garza
was not present at the time of the depredations and had no con-
nections with the raiders, who displayed no uniform or flag, and
whose only emblem indicating their identity was a red band
around their hats. The Mexican Minister requested the ex-
tradition of the three Mexicans on charges of murder, arson, rob-
bery and kidnaping committed in Mexico. The examining magis-
trate committed the prisoners for surrender, but they applied to
the district court for release on habeas corpus, and that court
held that the offense was of a political character, and ordered
108 Dip. Cor. 1864, part II. mitting magistrate, examined into the
IOT rpne g^ Albans Eaid, by L. N. charges preferred against certain citi-
Benjamin, B. C. L., Montreal, 1865. zens of Salvador, and held that sev-
In re Ezeta, 62 Fed. 972, Judge Mor- eral of the offenses were political in
row, District Judge, sitting as a com- character.
373 P1LCOMAYO MUTINEERS. [§ 332
the prisoners discharged. An appeal was taken to the supreme
court of the United States, which held that the judgment of the
magistrate rendered in good faith on legal evidence, to the ef-
fect that the accused was guilty of the act with which he was
charged, and that the offense constituted an extraditable crime,
is not reviewable on the weight of the evidence. Unless the judg-
ment is palpably erroneous in law, it is final for the purposes of
the preliminary examination.108
§ 332. Pilcomayo mutineers. — A mutiny took place on the
Chilean gunboat, "Pilcomayo," March 31, 1891, while she was
lying in the docks at Buenos Ayres, which resulted in the wound-
ing of eleven of the crew and the death of three. The local po-
lice, at the instance of the commander, took twelve of the mu-
tineers into custody, and the Chilean Minister requested their
detention until the vessel was ready to depart for Chile, so that
they might be transported to that country and tried for their
offense. The Chilean government had ordered the dismantling
of the "Pilcomayo," and this task was being performed at the
time of the mutiny. It was understood that upon the comple-
tion of this task, the vessel was to be taken back to Chile and put
10S Ornelas v. Euiz, 161 U. S. 502, concerned with the question of the
16 Sup. Ct. Eep. 689, 40 L. ed. 787. actual criminality of petitioners if the
Said the court : ' ' Can it be said that commissioner had probable cause for
the commissioner had no choice on his action. It is enough if it appear
the evidence, but to hold, in view of that there was legal evidence on
the character of the foray, the mode which the commissioner might prop-
of attack, the persons killed or cap- erly conclude that the accused had
tured, and the kind of property committed offenses within the treaty
taken or destroyed, that this was a as charged, and so be justified in ex-
movement in aid of a political revolt, ercising his power to commit them to
an insurrection or a civil war, and await the action of the executive de-
that acts which contained all the char- partment. ' '
acteristics of crimes under the ordin- A writ of habeas corpus cannot
ary law were exempt from extradition perform the office of a writ of error,
because of the political intentions of Oteiza y Cortes v. Jacobus, 136 TJ. S.
those who committed them? In our 330, 10 Sup. Ct. Eep. 1031, 34 L. ed.
opinion the inquiry must be answered • 464; Benson v. McMahon, 127 U. S.
in the negative. The contention that 457, 8 Sup. Ct. Eep. 1240, 32 L. ed.
the right of the executive authority 234; Fong \ue Ting v. United States,
to determine what offenses charged 149 U. S. 714, 13 Sup. Ct. Eep. 1016,
are or are not purely political is not, 37 L. ed. 913.
involved in any degree; nor are we
§ 333] TREATIES OF EXTRADITION AND PROCEEDINGS. 374
out of service, and that a part of the crew was to be taken over-
land and enlisted in the army. A judge of the Argentine Re-
public granted a writ of habeas corpus to the mutineers, and de-
cided on the hearing that the exemption of ships of war from the
jurisdiction of the local authorities could not extend to the
length of bestowing authority to entertain jurisdiction over per-
sons in foreign territory under its flag. The court decided, also,
that by causing the men to be taken from the vessel and placed
in the custody of the Argentine officials, the Chilean Minister
had renounced or lost the right to remove and try them, a right
which he might have exercised had they been retained on board
of the vessel or held under arrest in the Chilean legation. It
was intimated by the court that as the vessel had lost its charac-
ter as a ship of war by dismantlement, it was improper to detain
the mutineers as a part of the crew of a man-of-war. An appeal
was taken from this decision to the supreme court of the Argen-
tine Republic, which held that as the mutiny appeared to be for
political reasons, the offense was to be considered a political one ;
and that as the taking of the mutineers to shore and their de-
livery to the Argentine authorities were caused by the inability
of retaining them on board of the vessel, it was impossible to
grant their return to the representative of Chile, without violat-
ing the rule exempting political offenders from extradition. The
supreme court of that nation also held that by their delivery, the
principle of public law which protects prisoners of war, whether
public or insurrectionary, would be violated. It is a rule of in-
ternational law, held the court, that by the commission of acts
of hostility by foreign insurgents in the territorial waters of an-
other state, delivery may be made of the vessels or things taken
from them, but they themselves are not to be surrendered.109
§ 333. Exemption from local jurisdiction.— There is a class of
cases in which it is understood that every sovereign waives a
part of the complete exclusive jurisdiction which is an incident
to sovereignty. A public vessel of war of a foreign nation at
109 Mr. Buchanan, Minister to the Francois S. Jones, Secretary of Lega-
Argentine Kepublic, to Mr. Hay, Sec- tion, citing Fallos cle la Suprema
retary of State, No. 584, December 1, Corte de la Eepublica Argentina, 1893,
1898, 37 MS. Desp. from Argentine XLIII, 321, 323.
Eepublic, inclosing a report of Mr.
375 EXEMPTION FROM LOCAL JURISDICTION. [§ 333
peace with the United States, coming into an American port and
committing no breach of the laws, is exempt from the jurisdiction
of the courts.110 A libel was filed against the schooner "Ex-
change," alleging that the libelants were her sole owners when
she sailed from Baltimore bound to St. Sebastians, in Spain, and
that while lawfully and peaceably pursuing her voyage, she was
violently and forcibly taken by certain persons, acting under the
orders of Napoleon, out of the custody of the libelants, and dis-
posed of in violation of their rights. It was alleged that the
vessel had been brought into the port of Philadelphia; that no
sentence or decree of condemnation had been pronounced
against her by any court of competent jurisdiction, but that the
property of the libelants in her remained unchanged and in full
force. The United States attorney filed a suggestion to the ef-
fect that the vessel whose name had been changed belonged to
the Emperor of France, and that while actually employed in
his service, was compelled by stress of weather to seek the port
of Philadephia for repairs; and that if the vessel was ever the
property of the libelants, their title had been devested according
to the decrees and laws of France. Upon the ground that a pub-
lic armed vessel of a foreign sovereign in amity with the United
States is not subject to the ordinary judicial tribunals of the
country, so far as the question of title by which such sovereign
holds the vessel is concerned, the circuit court, reversing the sen-
tence of the district court, ordered the vessel to be restored to
the litigants. On an appeal to the supreme court of the United
States, Mr. Chief Justice Marshall, in delivering the opinion of
the court said: "The jurisdiction of the nation within its own
territory is necessarily exclusive and absolute. It is susceptible
of no limitation not imposed by itself. Any restriction upon it,
deriving validity from an external source, would imply a diminu-
tion of its sovereignty to the extent of the restriction, and an
investment of that sovereignty to the same extent in that power
which could impose such restriction The world being com-
posed of distinct sovereignties, possessing equal rights and equal
independence, whose mutual benefit is promoted by intercourse
with each other, and by an interchange of those offices which
mumanity dictates and its wants require, all sovereigns have con-
sented to a relaxation in practice, in cases under certain peculiar
110 The Schooner Exchange v. McFaddon, 7 Cranch, 116, 3 L. ed. 287.
§ 334] TREATIES OF EXTRADITION AND PROCEEDINGS. 376
circumstances, of that absolute and complete jurisdiction within
their respective territories which sovereignty confers. This con-
sent may, in some instances, be tested by common usage and by
common opinion growing out of that usage. A nation would
justly be considered as violating its faith, although that faith
might not be expressly plighted, which should suddenly and with-
out previous notice exercise its territorial powers in a manner
not consonant to the usages and received obligations of the civil-
ized world. " m
§ 334. Attempt against life of President or other officers.— It
is now provided in many treaties that an attempt to take the life
of the head of a nation shall not be considered a political offense.
In the treaties concluded in 1882 and 1883 between the United
States and Belgium and Luxemburg, a clause was inserted that an
attempt against the head of the government or against any
member of his family shall not be considered a political of-
fense when such attempt comprises the act of murder, assassina-
tion or poisoning. Similar clauses were inserted in the recent
treaties concluded with Russia and Denmark.112 The extradition
treaty of Brazil of 1897 provides that an attempt against the
life of the President or vice-president of the United States, or the
governor or lieutenant-governor of any state, or the President or
vice-president of the United States of Brazil, or of the President or
vice-president or governor of any of its states, shall not be con-
sidered a political crime when it is unconnected with political
movements.
After the assassination of President Lincoln a request was made
to several governments to surrender his assassin, should he be
found within their jurisdictional limits, and in all cases none
but a ready and favorable response was received. John H.
Surratt, charged with complicity in the assassination, was ar-
rested at Alexandria in 1866, and with the co-operation of the
Egyptian authorities was placed on board of an American man-
of-war.113 While under the treaty with Italy, political offenses
111 The Schooner Exchange v. Me- to was concluded March 28, 1887, and
Faddon, 7 Cranch, 116, 3 L. ed. 287. the ratifications exchanged April 21,
See Tucker v. Alexandroff, 183 U. S. 1893. The treaty with Denmark was
424, 22 Sup. Ct. Eep. 195, 46 L. ed. concluded January 6, 1902.
264. 113 4 Moore Int. L. Dig. 343; 1
112 The treaty with Eussia referred Moore on Extradition, 308.
377 CASE OF ANARCHISTS. [§§ 335, 336
are not extraditable, the Department of State is not inclined to
consider any case to be a political one merely because the
victim is the head of the government.114
§ 335. Case of anarchists. — It was held by the court of
queen's bench in England, in 1894, that to constitute an offense
of a political character, "there must be two or more parties in
the state, each seeking to impose the government of their own
choice on the other," and that the offense must be "committed
by one side or the other in pursuance of that object." Accord-
ingly, anarchists, notwithstanding they claim that they are actu-
ated by political motives, are not to be considered political of-
fenders.115
§ 336. Trial for different offense. — It is now a settled rule in
the United States that a fugitive who has been extradited from
a foreign country upon a specified charge can be tried for that
offense only until he has had a reasonable time and opportunity
after his release or trial to return to the country from which he
was taken.116
Mr. Justice Miller, after reviewing many authorities, summed
up by saying: "Upon a review of these decisions of the federal
and state courts, to which may be added the opinions of the dis-
tinguished writers which we have cited in the earlier part of
this opinion, we feel authorized to state that the weight of au-
thority and of sound principle are in favor of the proposition
that a person who has been brought within the jurisdiction of
the court by virtue of proceedings under an extradition treaty
*14 Mr. Hill, Acting Secretary of L. ed. 425; United States v. Watts, 8
State, to Baron Fava, Tel. September Saw. (U. S.) 370, 14 Fed. 130; State
12, 1900, MS. Notes to Ital. Leg., IX, v. Vanderpool, 39 Ohio St. 273, 48
462. Am. Eep. 431; Ex parte Coy, 32 Fed.
115 In re Meunier, 2 Q. B. [1894] 911; Commonwealth v. Hawes, 13
415. In that case a fugitive from Bush (Ky.), 697, 26 Am. Kep. 242;
justice, who was charged with caus- Blandford v. State, 10 Tex. App. 627;
ing the explosion at the Cafe Very, in Ex parte Hibbs, 26 Fed. 421 ; People
Paris, as well as another explosion v. Hannan, 9 Misc. Rep. 600, 30 N.
at the barracks of the government, Y. Supp. 370; People v. Stout, 81
was ordered delivered up. Hun (N. Y.), 336, 30 N. Y. Supp.
116 United States v. Kauscher, 119 898.
U. S. 407, 7 Sup. Ct. Kep. 234, 30
§ 337] TREATIES OP EXTRADITION AND PROCEEDINGS. 378
can only be tried for one of the offenses described in that treaty,
and for the offense with which he is charged in the proceedings
for his extradition, until a reasonable time and opportunity have
been given him after his release or trial upon such charge to re-
turn to the country from whose asylum he had been forcibly taken
under those proceedings. ' ' m Thus, a fugitive extradited for
larceny cannot be extradited for forgery ; 118 nor is a fugitive
who has been extradited on an indictment filed in a state court
subject to arrest by a federal court.119 But where the distinc-
tion between principals and accessories has been abolished by
statute, a fugitive extradited as an accessory may be tried as a
principal.120 A fugitive who is captured while voluntarily re-
turning to the United States is not entitled to claim the benefit
of this exemption.121
§ 337. Pleading other offense. — Judge Deady said that the
detention of a person for a charge other than that for which he
had been surrendered would be "not only an infraction of the
contract between the parties to the treaty, but also a violation of
the supreme law of this land in a matter directly involving his
personal rights. A right of person or property secured or rec-
ognized by treaty may be set up as a defense to a prosecution in
disregard of either with the same force and effect as if such
right was secured by an act of Congress. ' ' 122
In Ohio two persons, who were delivered by Canada for of-
fenses specified in the treaty, were for such offenses convicted
and sentenced. Subsequently they were indicted on other
charges, and they pleaded in abatement that they could not be
placed upon their trial on these charges until after the lapse of a
117 United States v. Kauscher, 119 Fed. 206, 4 L. E. A. 236; Hall v.
U. S. 407, 7 Sup. Ct. Kep. 234, 30 Patterson, 45 Fed. 354; In re Cross,
L. ed. 425. 43 Fed. 519; Ex parte McKnight, 48
118 In re Fitton, 45 Fed. 472. Ohio St. 594, 28 N. E. 1034, 14 L.
119 Cosgrove v. Winney, 174 U. S. B. A. 130; State v. Hall, 40 Kan. 341,
68, 19 Sup. Ct. Eep. 598; 43 L. ed. 10 Am. St. Eep. 202, 19 Pac. 920;
897. Moletor v. Sonnen, 76 Wis. 312, 20
120 In re Eowe, 77 Fed. 165, 23 C. Am. St. Eep. 74, 44 'N. W. 1100, 7
0. A. 103, 40 U. S. App. 516; State v. L. E. A. 818; In re Eobinson, 29 Neb.
Rowe, 104 Iowa, 327, 73 N. W. 834. 138, 26 Am. St. Eep. 379, 45 N. W.
121 Ward v. State, 102 Tenn. 727, 268, 8 L. E. A. 309.
52 S. W. 997. See, also, In re Bar- 122 In Ex parte Hibbs, 26 Fed. 421
uch, 41 Fed. 473; In re Eeinitz, 39
379 VARIANCES. [§ 338
reasonable time after the expiration of their sentences for the
crimes of which they had previously been convicted. This view
was sustained by the supreme court of Ohio.123
§ 338. Variances. — A person whose extradition is obtained on
a charge of setting fire to and burning a brick "house," alleged
to have been inhabited as a retail shoe store, may be indicted
and placed on trial for setting fire to and burning a store "build-
ing" occupied as a store.124 So in a case where a fugitive was
extradited from Canada on a charge of arson committed in the
state of Iowa, and the information which constituted the founda-
tion of the proceeding alleged that the arson was committed by
the burning of a "house," which at the time of the act was "oc-
cupied and inhabited" by certain persons in conducting a busi-
ness, but in the indictment on which he was convicted it was
alleged that he burned a "store building," which was "occu-
pied" as such by certain persons, it was held that the word
"house" as employed in the information could not be consid-
ered a dwelling-house. This word, the court held, should be
construed in connection with the other allegations, as a building
used as a store, and consequently that no variance existed be-
tween the charge for which the extradition of the defendant
had been secured and that on which he had been tried.125
Where a person is extradited on charges of forgery, embezzle-
ment and larceny, it is not necessary that the government or
commissioner should elect as to the charge for which he shall
be tried. It is immaterial whether the indictment filed contain
counts for forgery, larceny or embezzlement if the defendant is
tried upon the facts which appear in evidence before the com-
missioner, and upon the charges, or one of the charges, for which
he is surrendered.126
123
State v. Vanderpool, 39 Ohio Am. St. Eep. 476, 33 N. E. 83, 19 L.
St. 273, 48 Am. Eep. 431. But see E. A. 208; People v. Cross, 135 N. Y.
as to fugitive extradited from an- 540, 31 Am. St. Eep. 853, 32 N. E.
other state, State v. Leidigh, 47 Neb. 247; State v. Glover, 112 N. C. 898,
132, 66 N. W. 309 ; Lascelles v. State, 17 S. E. 526.
90 Ga. 362, 35 Am. St. Eep. 219, 16 m State v. Spiegel, 111 Iowa, 701,
S. E. 946; Lascelles v. Georgia, 148 83 N. W. 722.
U. S. 541, 13 Sup. Ct. Eep. 687, 37 123 Cohn v. Jones, 100 Fed. 639.
L. ed. 551; State v. Patterson, 116 126 Bryant v. United States, 167
Mo. 516, 22 S. W. 698; Common- U. S. 104, 17 Sup. Ct. Eep. 744, 42
wealth v. Wright, 158 Mass. 151, 35 L. ed. 94.
§§ 339, 341T TREATIES OF EXTRADITION AND PROCEEDINGS. 380
§ 339. Lesser offense. — Although the laws of a state permit
a person to be convicted of a lesser crime under an indictment
charging a higher one, it has been held that a person who has
been surrendered in pursuance of a treaty of extradition on a
charge of assault with intent to commit murder cannot be con-
victed of an assault with intent to do great bodily harm.127
It is said by the Department of State that "since the decision
of the supreme court in the Bauscher case, it is believed by the
Department to be well settled that a fugitive secured by extra-
dition can neither be lawfully tried nor punished except for the
offense for which his extradition was granted. And this rule
holds good notwithstanding the offense for which it is proposed
to try or convict him be included in that for which his extra-
dition was granted, unless the former is also included in the
treaty, which is not the case here. It is proper to say that this
is also the view taken by the British government. ' ' 128
§ 340. Arrest on prior charge. — The rule that an extradited
prisoner is immune from arrest extends to the case when it is
attempted to arrest him upon a prior judgment of conviction.
Thus, several indictments were found against a person for con-
spiring to defraud the United States of duties upon imports, and
of procuring the admission into the United States of goods in
violation of the statute. He was convicted, sentenced to prison,
took an appeal, was released on bail pending the appeal, and when
the judgment of his conviction was affirmed, he fled to Canada.
His extradition as a convict was demanded and refused, and
immediately afterward a new demand was made, based upon an
indictment on which he had not been tried. In compliance with
this later demand he was surrendered by Canada, and while
traveling on the train was arrested on a warrant based upon
the former conviction, and lodged in prison. He sued out a
writ of habeas corpus, and it was held that he should not be ar-
rested or tried under the treaty for any other offense than that
127 People v. Stout, 81 Hun, 336, as to the right to try a person brought
30 N. Y. Supp. 898; People v. Cross, from another state for another
135 N. Y. 540, 31 Am. St. Eep. 850, offense without giving him an op-
32 N. E. 246. portunity to return, see Taylor v.
128 Mr. Uhl, Acting Secretary of Commonwealth, 29 Ky. Law Eep. 714,
State, to Mr. Hanford, April 21, 96 S. W. 440.
1894, 196 MS. Dom. Let. 443. But
381 OFFENSE COMMITTED PENDING TRIAL. [§ 341
with which he was charged in extradition until he should have had
a reasonable time to return unmolested to the country from
which he was brought, and accordingly he was discharged.129
§ 341. Offense committed pending trial. — In the cases in
which the principle has been announced that a .fugitive extra-
dited on one charge cannot be tried on another until the con-
clusion of the trial, and until he has had a reasonable time to
return to the country from which he was extradited, the crime
for which it has been attempted to place the extradited prisoner
on trial was alleged to have been committed prior to his extra-
dition. But suppose he should commit a crime after his return
and before the expiration of the time that, under ordinary cir-
cumstances, would be allowed for his return? This question has
recently been decided in a case in California where a prisoner
charged with perjury was extradited from Canada and tried
for the offense before a jury that disagreed. During the course
of the trial the accused became a witness in his own behalf.
Before a second trial was had on the original indictment upon
which his extradition had been secured he was indicted for alleged
perjury in testimony given by him as a witness at the trial, and
upon the second indictment was tried and convicted. He con-
tended, in a proceeding of habeas corpus, that as he had been
extradited from Canada upon a specific indictment, he could not
be tried upon any other charge until the original charge had
been disposed of and a reasonable time had been given to him
within which to return to the country from which he had been
extradited. The court held that the defendant could properly
be tried for the offense committed after his surrender before the
final disposition of the first charge, and in the course of the
opinion delivered by Mr. Justice Henshaw, said: "The obligation
assumed by the country demanding the surrender is that such
surrender will not be used for the purpose of putting the pris-
oner on trial for any other offense which he may be claimed to
have committed before he sought the asylum of the foreign coun-
try; but we cannot see that there would be any breach of inter-
129 Ex parte Brown, 205 U. S. 309, the words "or be punished" were
27 Sup. Ct. Eep. 539, 51 L. ed. 816; omitted in the treaty, after the pro-
S. C., 148 Fed. 68. vision that no person surrendered shall
This was held to be so although be triable or tried. Id.
§ 341]
TREATIES OF EXTRADITION AND PROCEEDINGS.
382
national faith in compelling him, in common with other persons
within the jurisdiction, to assume responsibility for any offense
which he may commit after his return. In such case there is
no possibility of the extradition proceedings being used as a
subterfuge to pursue the accused for an offense other than the
one for which he was extradited. In the absence of any au-
thority compelling such conclusion, we are not prepared to hold
that a person extradited under a treaty may, after his return,
and pending his trial upon the extradition charge, commit any
crime, however atrocious, with absolute security against prosecu-
tion until he shall have had an opportunity to return to the
country from which he was taken. ' ' 13°
130 Ex parte Collins (Cal.), 90 Pac.
827, 830. The court said that in the
Rauscher Case, 119 U. S. 407, 7 Sup.
Ct. Eep. 234, 30 L. ed. 425, as well
as in every other case called to their
attention, the crime for which it was
attempted to try the extradited pris-
oner was one which it was alleged had
been committed prior to his extradi-
tion. "In the present case," said
the court, ' ' on the contrary, the crime
with which Collins was charged and
of which he was convicted was com-
mitted after his surrender by the au-
thorities of the country in which he had
sought a refuge, and after his return
to the state of California. The ques-
tion is whether the immunity against
prosecution for another offense, de-
clared in United States v. Rauscher
and similar cases, extends to an
offense committed subsequent to the
extradition. No doubt there is
language in United States v. Rauscher,
general in its terms, which, taken
Avithout regard to the facts before the
court, would lend countenance to the
view that the prisoner is, until the
conclusion of his trial for the offense
on which he was extradited, and for
a reasonable time thereafter, abso-
lutely immune from prosecution on
any other charge. It is an elementary
doctrine, however, that expressions in
judicial opinions are to be read in the
light of the facts before the court,
and it is necessary, therefore, to con-
sider the grounds upon which the de-
cision in this class of cases went in
order to determine whether those
grounds are applicable to the case of
a crime committed after extradition.
The reasoning of United States v.
Rauscher is substantially this: That
in the absence of treaty there is no
obligation upon any country to sur-
render to another persons who are
charged with crime in the latter coun-
try. That as a matter of comity
such surrender might be made, but
that, if made in pursuance of a de-
mand or request for the surrender of
a person accused of a specific crime,
there is an implied undertaking on the
part of the country receiving the
surrender that such surrender is asked
and received for the purpose of put-
ting the accused on trial for that
crime, and for no other purpose.
When a treaty is adopted, providing
for the surrender of persons accused
of specific crimes, the same implied
obligation exists, more particularly
in view of the provision generally
found in treaties of extradition, that,
before any surrender shall be made,
383 APPLICATION FOR REQUISITION. [§ 342
§ 342. Application for requisition. — Applications for extra-
dition will not be inaugurated by the Department of State on the
mere reference to it of papers "without a specific request or
expression of the wish of the Department of Justice or of the
authority of a state, as the case may be, through which the
papers may come to this Department."131 The word "accused"
in a treaty means accused in due form of law, and where a pro-
ceeding by information is authorized, this will form the basis
for extradition as well as an indictment.132
The Department of State will not allow technical reasons to
control its conduct where a prima facie case is presented, but,
acting in the interest of justice, will request extradition and
leave it to the authorities of the country where the accused is
found to decide as to his delivery.133 Counsel will not be heard
in opposition by the Department of State to its making of a de-
mand for extradition.134 The demand must emanate from the
supreme political authority of the state asking extradition.135 An
affidavit for a requisition which is made on information and be-
lief, and which is not predicated on facts within the knowledge
of the affiant, is insufficient.136 The governor of Porto Rico,
under the provisions of the statute conferring upon him all the
powers of the governors of the territories of the United States
that are not locally inapplicable, is authorized, to the same extent
there must be some proof of the com- 131 Mr. Fish, Secretary of State, to
mission of the offense. To permit Mr. Pierrepont, February 2, 1876, 111
a country to seek the extradition of MS. Dom. Let. 539. See, also, Mr.
a person found in another country Hay, Secretary of State, to Messrs.
upon the ground that he is charged Kingsford & Son, February 25, 1899,
with the commission of a specific of- 235 MS. Dom. Let. 152.
fense covered by an extradition treaty, 132 State v. Rowe, 104 Iowa, 323, 73
and then, when his surrender has N. W. 833.
been granted upon that ground, to 1:!3 Mr. Bayard, Secretary of State,
try him for some other offense, would to Mr. Torrey, March 10, 1886, 159
make it possible to evade the provi- MS. Dom. Let. 279.
sions of the treaty, and to use it as 34 Mr. Gresham, Secretary of State,
a pretense for securing possession of to Mr. Peffer, January 30, 1895, 200
the person of a prisoner whom it was MS. Dom. Let. 425.
not designed to try for the charge 135 Gushing, 8 Op. Atty. Gen. 240.
upon which his extradition was nom- 136 Ex parte Cheatham (Tex. Grim.
inally sought, but for some other of- App.), 95 S. W. 1077.
fense which might or might not be
in itself extraditable."
§§ 343, 344] TREATIES OF EXTRADITION AND PROCEEDINGS. 384
as the governor of a territory, to issue a requisition for the
rendition of a fugitive criminal.137
§ 343. Mandate. — Extradition proceedings may be initiated
by the President without the requirement of such proof as would
justify extradition.138 At one time it was held that it was neces-
sary to produce a requisition from the demanding government
before the commissioner could act.139 But the later view is that
now it is not essential that there should be a requisition from the
demanding government to enable a United States commissioner
to entertain jurisdiction over extradition proceedings.140
Mr. Bayard, Secretary of State, said: "After a careful exam-
ination of the treaty now in force between the United States and
Great Britain in reference to extradition, I have come to the con-
clusion that it is neither necessary nor proper that any mandate
or other authorization should issue from this Department as a
preliminary to arrest by the commissioners or other judicial offi-
cers in whom the function of arrest and examination in such
cases is specifically vested. I am strengthened in this conclusion
by the fact that in all cases in which the question had come up
before the judicial department of this Government it has been
held that, under the treaty in question and the distinctive legis-
lation of the United States, no such preliminary process of this
Department is requisite. It is proper, also, that this seems to be
the general sense of those who represent Her Majesty's Gov-
ernment in such process, since in most cases the application for
arrest is made directly to the commissioner, or other judicial au-
thority vested with the jurisdiction, the case not coming before
this Department until the application for surrender. ' ' 141
§ 344. Who may act as magistrate. — A judge of a court of
record of general jurisdiction has authority to entertain com-
137
In re Kopel, 148 Fed. 505. See Kaine's Case, 14 How. 129, 14 L.
People v. Bingham, 102 N. Y. Supp. ed- 355-
878, 117 App. Div 411. 14° Grin v' Shine> 187 U' S" 195>
» Gushing, 6 Op. Atty. Gen. 217. 23 ^' Ct' **• 98> 47 L' ed* 13°'
Benson v. McMahon, 127 U. S. 457,
• In re Herns, 32 Fed. 583; In re g gup> ct> Rep> mo> 32 L ^ ^
Henrich, 5 Blatchf . 414, Fed. Cas. No. M Mr> Bayard, Secretary of State,
6369; In re Farez, 7 Blatchf. 34, 345, to Mr. West, February 16, 1886, MS.
Fed. Cas. Nos. 4644, 4645. See Notes to Great Britain, XX, 189.
385 SUFFICIENCY OF THE COMPLAINT. [§ 345
plaints in extradition cases. It is not necessary to recite in the
warrant of arrest issued by him that he possesses authority to
act in such cases, because he does not need a special appointment
for the purpose.142 Under the law and treaties, a commissioner of
the circuit court of the United States who has been specially ap-
pointed to act in extradition cases is a competent examining mag-
istrate.143 Such commissioner may grant continuances in his
discretion, and a statute of the state limiting continuances to ten
days does not limit his action.144 But as to the amount of proof
required, Judge Morrow, United States District Judge, sitting as
a committing magistrate, held that as the defendants were found
within the territory of California, the law of that state must fur-
nish the rule of procedure in the examination.145 The proceeding
before the commissioner is not to be regarded as a final trial, but
as a preliminary examination before a committing magistrate.140
In such cases attorneys are not required to appear for foreign
governments ; 14T nor is it essential that the proceedings should
either be conducted or approved by the attorney of the United
States for the district.148 There is no provision for bail in the
law or in the treaties.149
§ 345. Sufficiency of the complaint. — A complaint made solely
on information and belief, without attempting to set forth the
sources of information or the grounds of belief, is defective.150
But if it contains various counts, some of which are made on
the personal knowledge of the complainant, the presence of a
count based merely on information and belief will not invalidate
the complaint.151 If, however, a complaint is verified by the
consul of a foreign government, in which the offense is properly
'*- Ex parte McCabe, 46 Fed. 363, 147 Black, 9 Op. Atty. Gen. 497.
12 L. E. A. 589. 14S Black, 9 Op. Atty. Gen. 246.
143 Eice v. Ames, 180 IT. S. 371, 14!' In re Ezeta, 62 Fed. 972; In re
21 Sup. Ct. Eep. 406, 45 L. ed. 577; Carrier, 57 Fed. 578; In *e Wright,
Nelson, 4 Op. Atty. Gen. 201; Cal- 123 Fed. 463. But see Wright v.
der's Case, 6 Op. Atty. Gen. 91. Henkel, 190 U. S. 40, 23 Sup. Ct.
144 Eice v. Ames, 180 U. S. 371, 21 Eep. 781, 47 L. ed. 948.
Sup. Ct. Eep. 406, 45 L. ed. 577. tr'° Eice v. Ames, 180 U. S. 371, 21
14"' In re Ezeta, 62 Fed. 972. Sup. Ct. Eep. 406, 45 L. ed. 577.
146 Benson v. McMahon, 127 U. S. «l Eice v. Ames, 180 U. S. 371, 21
457, 8 Sup. Ct. Eep. 1240, 32 L. ed. Sup. Ct. Eep. 406, 45 L. ed. 577.
2H4; In re Breen, 73 Fed. 458.
Treaties — 25
§ 346] TREATIES OF EXTRADITION AND PROCEEDINGS. 386
charged, it will be sufficient, even if the affiant does not make
the allegations on his personal knowledge of the facts.152
Where it is stated in a complaint that the complainant is the
duly accredited official agent and representative of a foreign
government, and it is signed by him as consul of that govern-
ment, it is immaterial that he did not swear positively in the
jurat that he was such consul.153 And a complaint may be made
by any person acting under the authority of the foreign govern-
ment who has knowledge of the facts, or, in the absence of such
person, by a consul or official representative of the foreign gov-
ernment founded upon depositions in his possession.154 It is suffi-
cient if it appears that the complainant is acting for the foreign
government.155
While the request or authority of the government within whose
jurisdiction the offense was committed must appear at some stage
in the proceedings, it is not essential that it should appear in
the first instance, Hence where a complaint was made by a
person Describing himself as " a resident and citizen of Montreal, ' '
but it did not show that it was made at the request or by au-
thority of the government of Canada, it was held that a prisoner
was not entitled to a discharge on habeas corpus where, on the
hearing, it was shown that an agent to act in securing the extra-
dition of the fugitive had been appointed by the Canadian gov-
ernment.156
The German imperial code supersedes certain laws of Prussia,
but an application for extradition is not rendered defective by an
allegation that the offense was committed contrary to the law of
the Kingdom of Prussia.157
§ 346. Precision of indictment not required. — It is not neces-
sary that the complaint should set out the offense with the par-
ticularity of an indictment, but it will be sufficient if it is in
conformity with the requirements of a preliminary complaint
under the local law of the place in which the accused is found.158
152 In re Farez, 7 Blatchf. 345, Fed. 13(i In re Mineau, 45 Fed. 188.
Cas. No. 4645. 13T Terlinden v. Ames, 184 U. S.
153 In re Adult, 55 Fed. 376. 270, 22 Sup. Ct. Eep. 484, 46 L. ed.
154 Grin v. 'Shine, 187 U. S. 181, 23 534.
Sup. Ct. Eep. 98, 47 L. ed. 130. 15S In re Herskovitz, 136 Fed. 713.
in5 In re Orpen, 86 Fed. 760. .
387 ORDINARY TECHNICALITIES NOT APPLICABLE. [§§ 347, 348
Article 10 of the treaty with Great Britain authorizes extra-
dition of persons charged with "assault with intent to commit
murder." An information charging the accused with "assault
with intent to kill and murder" is sufficient to bring the offense
within this provision.159
§ 347. Ordinary technicalities not applicable. — The purpose of
a proceeding in extradition is to put the person on trial under the
laws of his own country, and as it is unreasonable to expect that
there will be an exact correspondence between the laws of the
two countries, the ordinary technicalities of criminal proceedings
are in the contruction and carrying out of treaties of extradition
applicable only to a limited extent. The indictment is to be con-
strued not by one general description alone, but by a full and
liberal consideration of all its substantial averments.160 A com-
plaint charging an offense at common law is not defective be-
cause it concludes "against the form of the statute," and in such
case no proof of the foreign statute is necessary.161 If it clearly
appears that a treaty offense was meant to be charged, the com-
plaint will be sufficient.162 Where a person is extradited under
an indictment charging an extraditable offense, and the indict-
ment is quashed in the demanding state, he is not entitled to a
reasonable time to return before being called on to answer a new
indictment charging the same offense.163
§ 348. Arrest of fugitive. — "It is a common practice for mag-
istrates to issue warrants for the arrest of fugitives from justice,
and to detain them for a reasonable time on complaint duly
made before them by consular officers on the strength of tele-
graphic information received from their government. ' ' 164 The
fugitive may be arrested a second time on a new complaint.165
The practice of issuing warrants for arrest is governed by the
provisions of the Revised Statutes of the United States, and is
159 United States v. Piaza, 133 Fed. 1M Mr. Moore, Assistant Secretary
998. of State, to the Attorney General,
160 United States v. Greene, 146 Fed. May 26, 1898, 227 MS. Dom. Let. 651.
766. 16S Gushing, 6 Op. Atty. Gen. 91; In
1C1 Ex parte Lane, 6 Fed. 34. re Macdonnell, 11 Blatchf. 170, Fed.
1C2 In re Both, 15 Fed. 506. Cas. No. 8772.
163 Ex parte Fischl (Tex. Crim.
App.), 100 S. W. 773.
§ 349] TREATIES OF EXTRADITION AND PROCEEDINGS. 388
well settled.106 It is the duty of a United States marshal who
executes a warrant of arrest issued by an extradition commis-
sioner in another district or state to take the prisoner for exam-
ination before the nearest magistrate in the district in which the
arrest is made.167 Wrere the British government has applied for
the extradition of a fugitive, his arrest may be made on a British
vessel in the waters of the United States.168 A commitment of
the accused for extradition from the United States will not be
invalidated by evidence of malice on the part of the prosecuting
witness, at whose instance the criminal prosecution was com-
menced in a foreign country.169
§ 349. Provisional arrest. — The treaty between the United
States and Mexico of February 22, 1899, provides for the pro-
visional arrest and detention of fugitives from justice by de-
claring that each government, in receiving a proper request, shall
endeavor to procure the arrest of the criminal, ' ' and to keep him
in safe custody for such time as may be practicable, not exceeding
forty days, to await the production of the documents upon which
the claim for extradition is founded." Mr. Hill, Acting Secre-
tary of State, in a case where this limit had nearly expired, sug-
gested that the papers should be promptly forwarded to the
examining magistrate, stating that there was no provision under
the laws of the United States for extending the period of pro-
visional detention provided for by the treaty.170 But where the
treaty contains no such provision, it would seem that there is no
limit. In 1888 Mr. Bayard, Secretary of State, in a note to the
Belgian government, called attention to the decision of the su-
preme court of the United States in Benson v. McMahon,171
holding that under section 5270 of the Revised Statutes, a fugi-
tive may be arrested and held for examination without inter-
166 Rev. Stats., sees. 5270, 5271; In his discharge to permit him to return
re Mineau, 45 Fed. 188. to the state whence he came before
167 Pettit v. Walshe, 194 U. S. 205, such a suit may be commenced. Rut-
24 Sup. Ct. Rep. 657, 48 L. ed. 938. ledge v. Krauss, 73 N. J. L. 397, 63
168 In re Newman, 79 Fed. 622. Atl. 988.
169 In re Herskovitz, 136 Fed. 713. 17° To Mr. Aspiroz, Mexican Am-
Where a person has been brought into bassador, No. 174, May 14, 1901, MS.
the state by means of extradition, a Notes to Mexican Leg., X, 555.
civil suit may be instituted against m 127 U. S. 457, 8 Sup. Ct. Rep.
him before his discharge. lie is not 1240, 32 L. ed. 234.
entitled to a reasonable time after
389 EVIDENCE REQUIRED. [§ 350
ventiou on the part of the President, or without proof of the
making of a requisition, and said: "Under the statute it is be-
lieved that there exists in the United States a very liberal system
of provisional arrest and detention of fugitives from foreign
justice, under which, upon oaths made on information and belief
(a requirement which the preliminary mandate did not dis-
pense with), such fugitives are constantly arrested and held
without interference on the part of the executive branch of the
Government of the United States to await examination before
our judicial magistrates in accordance with our laws. No time
is specified during which a fugitive may be so held; but the ju-
dicial officer decides in each case what term is reasonable under
all the circumstances for the detention of the fugitives pending
the reception of the formal proofs of his culpability and their
examination. Save in cases in which the question of the neces-
sity of executive interference was formally raised, this Depart-
ment has received no complaints of the refusal of judicial magis-
trates to grant proper facilities. On the contrary, it is believed
that such magistrates have generally construed their powers with
as much liberality as is consistent with the security which all
persons, both citizens and foreigners, should enjoy against un-
founded arrest and detention." 1T-
350. Evidence required. — Where 'the evidence submitted
shows a probability of guilt of such a character that a cautious
man would be led to believe that the fugitive is guilty of the
offense with which he is charged, it is sufficient for his commit-
ment for surrender.173 In England it is sufficient that prima facie
evidence is produced of what would be a crime against English
law.174 Proofs are admissible where the certificate of the Amer-
ican Ambassador states that they "are properly and legally au-
172 Mr. Bayard, Secretary of State, JUmson v. McMahon, 127 U. S. 462,
to Mr. Parkhurst, No. 18, January 28, 8 Sup. Ct. Rep. 1240, 32 L. ed. 234;
1898, For. Eel. 1889, 50, 53. In re Wadge, 15 Fed. 864, 16 Fed.
173 In re Ezeta, 62 Fed. 972; Mimns 332, 21 Blatchf. 300; In re Macdon-
v. De Nemours, 3 Wash. C. C. 31, Fed. nell, 11 Blatchf. 170, Fed. Cas. No.
('as. No. 9926; In re Farez, 7 Blatchf. 8772.
345, Fed. Cas. No. 4645; In re Beh- 174 In re Bellencontre, 2 Q. B. D.
remit, 22 Fed. 699, 23 Blatchf. 40; 122.
§ 351] TREATIES OF EXTRADITION AND PROCEEDINGS. 390
thenticated, so as to entitle them to be received in evidence for
similar purposes by the tribunals of Great Britain. ' ' 175
Under the federal statute providing for the authentication of
depositions taken in a foreign country to be used in extradition
proceedings, it is sufficient if the certificate of a principal diplo-
matic or consular officer of the United States follows the words
of the statute,.176 A commissioner is justified in committing a
prisoner for extradition on a charge of forgery by circumstantial
evidence as to the manner of drawing checks and posting books
by an employee.177 If a certificate is signed by the charge
d'affaires ad interim, the court will take judicial notice that he
was the principal diplomatic officer when the certificate was
given.178
§ 351. Foreign depositions. — Where the statute provides that
foreign depositions and other documents may be received in ex-
tradition proceedings when certified as "properly and legally
authenticated so as to entitle them to be received for similar pur-
poses by the tribunals of the foreign country from which the
accused party shall have escaped," the addition of the words
"as evidence" will not vitiate the certificate.179
The same weight is to be allowed to depositions as if the
deponent was present at the hearing.180 Papers purporting to
be depositions, and duly certified as required by law, are admis-
sible for what they are worth, although from the recitals con-
tained in the introductory part it does not distinctly appear that
the statements contained in the papers were made on oath.181
In a proceeding to extradite on a charge of embezzlement for
a failure to account for moneys received, it is immaterial whether
the amount accounted for was, according to certain testimony,
greater or less than the amount charged.182 Where a treaty pro-
vides that extradition shall be granted only "upon such evidence
of criminality as, according to the laws of the place where the
fugitive or person so charged shall be found," would justify his
175 In re Breen, 73 Fed. 458. 1T9 Grin v. Shine, 187 U. S. 181, 23
176 In re Krojanker, 44 Fed. 482 ; In Sup. Ct. Eep. 98, 47 L. ed. 130.
TO Behrendt, 23 Blatchf. 40, 22 Fed. 18° In re Farez, 7 Blatchf. 491, Fed.
699. See, also, In re Ezeta, 62 Fed. Gas. No. 4646. See In re Wadge, 16
972. Fed. 332, 21 Blatchf. 300.
m In re Bryant, 80 Fed. 282. m In re Ezeta, 62 Fed. 972.
178 In re Orpen, 86 Fed. 760. 182 In re Breen, 73 Fed. 458.
391 EVIDENCE ON BEHALF OF FUGITIVE. [§§ 362, 353
I
apprehension and commitment for trial if the offense had been
committed in such place, the law of the state in which he is found
will be the law of the place by which the proceeding will be
governed.183
§ 352. Evidence on behalf of fugitive. — On his examination
before a magistrate the fugitive has the right to produce wit-
nesses in his own behalf.184 Evidence of insanity may be received
to rebut the presumption of guilt.185 On a charge of attempt to
commit murder, where it was alleged by the prisoner that he
was acting in obedience to the command of a superior officer,
and that his victim was the aggressor, it was held that these were
matters of justification and defense which could properly be de-
termined only by a trial in the country seeking his extradition.186
It is not necessary that the evidence should be conclusive, or that
the commissioner should be absolutely convinced of the guilt
of the accused, but it will be sufficient if the prisoner is held on
competent legal evidence, and there is probable cause for believ-
ing him guilty of the offense with which he is charged.187
§ 353. Habeas corpus proceedings. — Writs of habeas corpus
may be granted by the federal courts when it appears that a
person is deprived of his liberty in violation of a law or a treaty
of the United States, and where it is sought to try a person for
an offense other than that for which he was surrendered, a writ
may issue.188 It is a settled rule that a writ of habeas corpus
cannot perform the office of a writ of error. If the committing
magistrate has jurisdiction of the subject matter, and if the
offense charged is within the terms of the treaty, and there is
competent legal evidence before him sufficient to authorize him
18:: Pettit v. Walshe, 194 U. S. 205, surrender the prisoner, for the reason
24 Sup. Ct. Rep. 657, 48 L. ed. 938; that the crime for which he was corn-
In re Frank, 107 Fed. 272. mitted was not mentioned in the re-
184 In re Farez, 7 Blatchf. 345, Fed. quisition for his extradition, the
Cas. No. 4645; In re Henrich, 5 crimes there specified being murder,
Blatchf. 414, Fed. Cas. No. 6369; Ex arson and robbery. American Law
parte Boss, 2 Bond, 252, Fed. Cas. Eev., January, February, 1895, 8.
No. 12,069 ; In re Kelley, 25 Fed. 268. 1ST United States v. Piaza, 133 Fed.
185 Phillips, 6 Op. Atty. Gen. 642. 998.
186 In re Cienfuegos, 62 Fed. 972.- 18S Cohn v. Jones, 100 Fed. 639. .
The Department of State refused to
353]
TREATIES OF EXTRADITION AND PROCEEDINGS.
392
to exercise his judgment as to whether the facts are sufficient to
establish the criminality of the accused for the purpose of extra-
dition, his decision will not be reviewed on habeas corpus.1®*
Ordinarily, the federal courts will not interfere with a prosecution
pending in a state court until the party whose rights are invaded
has exhausted every remedy for relief which the laws of the
state afford.190
""' Ornelas v. Ruiz, 161 U. S. 502,
16 Sup. Ct. Kep. 689, 40 L. ed. 787;
Terlinden v. Ames, 384 U. S. 270, 22
Sup. Ct. Eep. 484, 46 L. ed. 534; Bry-
ant v. United States, 167 U. S. 104,
17 Sup. Ct. Rep. 744, 42 L. ed. 94;
In re Krojanker, 44 Fed. 482; In re
Adutt, 55 Fed. 376; Neely v. Henkel,
180 U. S. 109, 21 Sup. Ct. Rep. 302,
45 L. ed. 448.
1W) Whitten v. Tomlinson, 160 U. S.
231, 16 Sup. Ct. Rep. 297, 40 L. ed.
406; New York v. Eno, 155 U. S.
89, 15 Sup. Ct. Rep. 30, 39 L. ed.
80; Ex parte Royall, 117 U. S. 241, 6
Sup. Ct. Rep. 734, 29 L. ed. 868;
Baker v. Grice, 169 U. S. 284, 18 Sup.
Ct. Rep. 323, 42 L. ed. 748; Minne-
sota v. Brundage, 180 U. S. 499, 21
Sup. Ct. Rep. 455, 45 L. ed. 639;
Robb v. Connolly, 111 U. S. 624, 4
Sup. Ct. Rep. 544, 28 L. ed. 542;
United States v. Rauscher, 119 U. S.
407, 7 Sup. Ct. Rep. 234, 30 L. ed.
425; Ex parte Collins, 154 Fed. 980,
In Whitten v. Tomlinson, 160 U. S.
231, 240-242, 16 Sup. Ct. Rep. 297,
40 L. ed. 406, it is said : ' ' The power
thus granted to the courts and judges
of the United States clearly extends
to prisoners held in custody, under the
authority of a State, in violation of
the Constitution, laws or treaties of
the United States. But in the exer-
cise of this power the courts of the
United States are not bound to dis-
charge by writ of habeas corpus every
such prisoner.
1 ' The principles which should gov-
ern their action in this matter were
stated upon great consideration, in
the leading case of Ex parte Royall,
117 U. S. 241, 6 Sup. Ct. Rep. 734,
29 L. ed. 868, and were repeated in
one of the most recent cases upon the
subject, as follows:
* ' We cannot suppose that Congress
intended to compel those courts, by
such means, to draw to themselves, in
the first instance, the control of all
criminal prosecutions commenced in
state courts exercising authority with-
in the same territorial limits, where
the accused claims that he is held in
custody in violation of the Constitu-
tion of the United States. The in-
junction to hear the case summarily,
and thereupon ' to dispose of the party
as law and justice require,' does not
deprive the court of discretion as to
the time and mode in which it will
exert the powers conferred upon it.
That discretion should be exercised in
the light of the relations existing, un-
der our system of government, be-
tween the judicial tribunals of the
Union and of the States, and in recog-
nition of the fact that the public
good requires that those relations be
not disturbed by unnecessary conflict
between courts equally bound to guard
and protect rights secured by the Con-
stitution. 'Where a person is in cus-
tody, under process from a state
court of original jurisdiction, for an
alleged offense against the laws of
393
APPEAL AND NOT WRIT OF ERROR.
[§ 354
§ 354. Appeal and not writ of error. — Where the construction
of a treaty of extradition is involved, an appeal, and not a writ
of error, from a decision of a district court denying an applica-
tion for a discharge upon a writ of habeas corpus is authorized by
such State, and it is claimed that he
is restrained of his liberty in viola-
tion of the Constitution of the United
States, the Circuit Court has a discre-
tion, whether it will discharge him,
upon habeas corpus, in advance of his
trial in the court in which he is in-
dicted; that discretion, however, to
be subordinate to any special circum-
stances requiring immediate action.
When the state court shall have finally
acted upon the case, the Circuit Court
has still a discretion whether, under
all the circumstances then existing, the
accused, if convicted, shall be put to
his writ of error from the highest
court of the State, or whether it will
proceed, by writ of habeas corpus,
summarily to determine whether the
petitioner is restrained of his liberty
in violation of the Constitution of the
United States. ' Ex parte Royall, 117
U. S. 241, 251-253, 6 Sup. Ct. Rep.
734, 29 L. ed. 868; New York v.
Eno, 155 U. S. 89, 93-95, 15 Sup. Ct.
Rep. 30, 39 L. ed. 80.
' ' In Ex parte Royall and in New
York v. Eno, it was recognized that
in cases of urgency, such as those of
prisoners in custody, by authority of
a State, for an act clone or omitted
to be done in pursuance of a law of
the United States, or of an order or
process of a court of the United
States, or otherwise involving the au-
thority and operations of the general
government, or its relations to foreign
nations, the courts of the United
States should interpose by writ of
habeas corpus.
''Such an exceptional case was In
re Neagle, 135 U. S. M, 10 Sup. Ct.
Rep. 658, 34 L. ed. 55, in which a
deputy marshal of the United States
charged under the Constitution and
laws of the United States with the
duty of guarding and protecting a
judge of a court of the United States,
and of doing whatever might be nec-
essary for that purpose, even to the
taking of human life, was discharged
on habeas corpus from custody under
commitment by a magistrate of a
.State on a charge of homicide com-
mitted in the performance of that
duty.
"Such was In re Loney, 134 U. S.
372, 10 Sup. Ct. Rep. 584, 33 L. ed.
949, in which a person arrested by
order of a magistrate of a State, for
perjury in testimony given in the case
of a contested Congressional election,
was discharged on habeas corpus, be-
cause a charge of such perjury was
within the exclusive cognizance of the
courts of the United States, and to
permit it to be prosecuted in the
state courts would greatly impede and
embarrass the administration of jus-
tice in a national tribunal.
' ' Such, again, was Wildenhaus '
Case, 120 U. S. 1, 7 Sup. Ct. Rep.
385, 30 L. ed. 565, in which the ques-
tion was decided on habeas corpus
whether an arrest, under authority of
a State, of one of the crew of a
foreign merchant vessel, charged with
the commission of a crime on board
of her while in a port within the
State, was contrary to the provisions
of a treaty between the United States
and the country to which the vessel
belonged.
§ 354]
TREATIES OF EXTRADITION AND PROCEEDINGS.
394
the act providing for the creation and jurisdiction of the court
of appeals. The fact that it becomes essential or proper for a
federal circuit court to construe the acts of Congress passed for
the purpose of effectuating the provisions of an extradition
1 * But, except in such peculiar and
urgent cases, the courts of the United
States will not discharge the prisoner
by habeas corpus in advance of a final
determination of his case in the courts
of the State; and even after such
final determination in those courts,
will generally leave the petitioner to
the usual and orderly course of pro-
ceeding by writ of error from this
Court. ' '
In Baker v. Grice, 169 U. S. 284,
18 Sup. Ct. Eep. 323, 42 L. ed. 748,
violation of a Texas statute against
the petitioner was charged with the
trusts. He was discharged on habeas
corpus by the circuit court on the
ground that the statute conflicted
with the constitution of the United
States. But the supreme court of the
United States reversed this action say-
ing: "The court below had juris-
diction to issue the writ and to de-
cide the questions which were argued
before it. Ex parte Eoyall, 117 U.
S. 241, 6 Sup. Ct. Kep. 734, 29 L.
ed. 868; Whitten v. Tomlinson, 160
U. S. 231, 16 Sup. Ct. Kep. 297,
40 L. ed. 406. In the latter case
most of the prior authorities are men-
tioned. From these cases it clearly
appears, as the settled and proper
procedure, that while Circuit Courts
of the United States have jurisdic-
tion, under the circumstances set forth
in the foregoing statement, to issue
the writ of habeas corpus, yet those
courts ought not to exercise that ju-
risdiction by the discharge of a pris-
oner unless in cases of peculiar ur-
gency; and that instead of discharg-
ing they will leave the prisoner to
be dealt with by the courts of the
State; that after a final determina-
tion of the case by the state court,
the Federal courts will even then gen-
erally leave the petitioner to his rem-
edy by writ of error from this court.
The reason for this course is apparent.
It is an exceedingly delicate jurisdic-
tion given to the Federal courts by
which a -person under an indictment
in a state court and subject to its
laws may, by the decision of a single
judge of the Federal court, upon a
writ of habeas corpus, be taken out of
the custody of the officers of the State
and finally discharged therefrom, and
thus a trial by the state courts of an
indictment found under the laws of a
State be finally prevented. Cases
have occurred of so exceptional a
nature that this course has been pur-
sued. Such are the cases In re Loney,
134 U. S. 372," 10 Sup. Ct. Eep. 584,
33 L. ed. 949, and In re Neagle, 135
U. S. 1, 10 Sup. Ct. Eep. 658, 34
L. ed. 55, but the reasons for the
interference of the Federal court in
each of those cases were extraordin-
ary, and presented what this court
regarded as such exceptional facts as
to justify the interference of the Fed-
eral tribunal. Unless this case be of
such exceptional nature, we ought not
to encourage the interference of the
Federal court below with the regular
course of justice in the state court. "
In Minnesota v. Brundage, 180 U.
S. 499, 503, 21 Sup. Ct. Eep. 455, 45
L. ed. 639, the court, after referring
to cases that are exceptions to the
general rule, said: "The present case
does not come within any of the ex-
ceptions to the general rule announced
in the cases above cited. It is not,
395 CONSUL MAY APPEAL. [§§ 355, 356
treaty will have no effect on the power of the supreme court of
the United States to review the judgment if the determination
of the case depends, in part, on the construction of the treaty.191
§ 355. Consul may appeal. — Upon a complaint made by the
Mexican consul under oath, certain persons were committed
for extradition to Mexico. They applied for a writ of habeas
corpus, and they were granted a discharge on the ground that
the offenses with which they were charged were political. The
consul took an appeal to the supreme court of the United States,
and the question was raised that he was not the real party inter-
ested, but the court held that he might properly prosecute the
appeal, as the government of Mexico was the real party inter-
ested.192
§ 356. Conflicting evidence. — Although the evidence placed
before the commissioner may be conflicting and far from produc-
ing conviction, the court will not, on habeas corpus, review the
decision reached by him.193 Writs of habeas corpus cannot put
an end to proceedings for extradition regularly and constitu-
in any legal view, one of urgency. case could be brought here for re-
The accused does not, in his applica- view."
tion, state any reason why he should 191 Rice v. Ames, 180 U. S. 371, 21
not be required to bring the question Sup. Ct. Rep. 406, 45 L. ed. 577;
involved in the prosecution against Pe«it v. Walshe, 194 U. S. 205, 24
him before a higher court of the State SuP- Ct- EeP- 657> 48 L- ed- 938-
and invoke its power to discharge him The fifth section of the act of 1891
if in its judgment he is restrained Permits an aP?eal &**<** from the
of his liberty in violation of the Con- dlstrict court to the 8uPreme court of
stitution of the United States. It *?**?*• States. "in. ^ case in
which the constitutionality of any law
cannot be assumed that the state „ ,. TT ., „ „,
of the United States, or the validity
court will hesitate to enforce any ^ construction of any treaty ma/e
rights secured to him by that instru- under itg authorityj is drawn in queg.
ment; for upon them equally with the tion ,, 26 stats> at Larg6j 82g>
courts of the Union rests the duty 102 Qrnelas v. Euiz, 161 U. S. 502,
to maintain the supreme law of the 16 Sup> ct Eep 689> 40 L ed 789'
land. Eobb v. Connolly, 111 U. S. See, also, Mali v. Hudson County
624, 637, 4 Sup. Ct. Rep. 544, 28 L. Common Jailkeeper, 120 U. S. 1, 7
ed. 542. If the state court declined Sup. Ct. Rep. 385, 30 L. ed. 565.
to recognize the Federal right spe- 193 Sternaman v. Peck, 80 Fed. 883,
cially claimed by the accused, the 26 C. C. A. 214.
§§ 357, 358] TREATIES OF EXTRADITION AND PROCEEDINGS. 396
tionally taken under acts of Congress.194 If the committing mag-
istrate had competent evidence before him, and possessed juris-
diction, his decision cannot be reviewed on an application for a
writ of habeas corpus on the ground that further evidence can be
obtained.195
§ 357. Surrender of fugitive an executive function. — The
treaty-making power, and the power of appointing and receiving
ambassadors and other public ministers, clearly includes the
pOAver to surrender a fugitive to another nation. "Its exercise
pertains to public policy and governmental administration, is
devolved on the executive authority, and the warrant of sur-
render is issued by the Secretary of State as the representative of
the President in foreign affairs."196 The President may author-
ize the employment of counsel by the United States in behalf of
marshals of the United States against whom suits are brought for
lawful acts done by them in the extradition of fugitives from
justice,197 and although the accused has been remanded on habeas
corpus, the President, if he is of the opinion that the evidence
produced is not sufficient to justify the issuance of a wrarrant of
surrender, may refuse the surrender.198 Consuls of the United
States possess no authority to require masters of American ves-
sels to take on board and carry to the United States persons who
are accused of crime.199 The Revised Statutes limits the time to
two calendar months from his commitment by a magistrate for
taking a prisoner out of the United States,?00 and the Department
of State cannot extend this time.201
§ 358. Surrender upon different charge. — There is no author-
ity in the President to surrender a fugitive upon any charge
194 Terlindeu v. Ames, 184 U. S. 270, 22 Sup. Ct. Kep. 484, 46 L. ed.
270, 290, 22 Sup. Ct. Kep. 484, 46 L. 534.
ed. 534. "7 Gushing, 6 Op. Atty. Gen. 500.
195 Rex v. Governor of Holloway 198 Mr. Bayard, Secretary of State,
Prison, 87 L. T. 332, 71 Law J. K. to Mr. West, April 15, 1886, MS.
B. 935. See, also, when it was held Notes to Great Britain, XX, 233.
that where the commissioner has ju- 199 Gushing, 7 Op. Atty. Gen. 722.
risdiction to investigate, it is im- 20° Rev. Stats., sec. 5273.
proper to treat his warrant of re- 2°l Mr. Olney, Secretary of State,
maud as a nullity, United States v. to Messrs. Inghain & Hewitt, May
Gaynor, L. R. App. Gas. 128. 11, 1896, 210 MS. Com. Let. 94.
196 Terlinden v. Ames, 184 U. S.
397 REFUSAL TO SURRENDER. [§ 359
other than the one which a committing magistrate has heard and
certified to be sustained by the evidence.202 The warrant of the
Secretary of State directing the surrender of a fugitive from
justice is subject to the power of the courts of the United States
to hold him for trial for any charge which may be pending in the
United States against him.203 There must be a certificate of
criminality by the courts before the President can order the
extradition.204 If extradition is sought on two charges made in
two different states, it is preferred that precedence should be
given to the requisition based on the charge first presented by
the United States.205
A government is not obligated to surrender a person held on
a charge of crime committed within its own jurisdiction, and
accordingly the attorney general of the United States directed
that certain persons charged with the fraudulent use of the mails
should be detained for trial instead of delivering them to an officer
to be taken for examination for extradition on a charge of fraud
committed in England.206
§ 359. Refusal to surrender. — It is not a ground for declining
to surrender the accused that the persons directly injured have
condoned the offense.207 The United States cannot refuse to sur-
render a fugitive to Mexico because he subsequently rendered
services to the government in assisting to apprehend and bring
to justice his associates, as the surrender of fugitives under
treaties of extradition is a matter of law, and no plea, unless it
be a legal one, can be entertained to prevent the surrender.208
202 Mr. Elaine, Secretary of State, 206 Mr. Hay, Secretary of State,
to Sir J. Pauncefote, British Min- to Sir ,T. Pauncefote, British Am-
ister, May 17, 1892, MS. Notes to bassador, No. 1336, February 4, 1889,
Great Britain, XXI, 664. MS. Notes to British Leg., XXIV,
203 Mr. Gresham, Secretary of 435.
State, to Mr. Komero, Mexican Min- 207 Mr. Olney, Secretary of State,
ister, May 15, 1893, MS. Notes to to Mr. Townsend, November 13,
Mexico, IX, 66. 1896, 213 MS. Dom. Let. 680.
204 Gushing, 6 Op. Atty. Gen. 217. 208 Mr. Eockhill, Secretary of
203 Mr. Hay, Secretary of State, State, to Mr. Sanchez, July 13,
t<- Messrs. Kingsford and Son, Feb- 1896, 211 MS. Dom. Let. 315.
ruary 25, 1899, 235 MS. Dom. Let.
152.
§§ 360-362] TREATIES OF EXTRADITION AND PROCEEDINGS. 398
§ 360. Release of debtor in jail under civil process. — Section
753 of the Eevised Statutes of the United States provides that
"the writ of habeas corpus shall in no case extend to a prisoner
in jail unless where he is in custody .... in violation of the
Constitution or of a law or treaty of the United States." This
section, however, will not prevent the release on habeas corpus
of a debtor who is in jail under executions in civil actions, for the
purpose of bringing him before a commissioner for examination.
In such case the debtor is not confined in jail at the suit of the
state, but of his creditors. A deputy marshal holding a com-
missioner's warrant for the arrest of a debtor on proceedings
in extradition has an interest in the liberty of the debtor to an
extent sufficient to authorize him to apply for the debtor 's release
on habeas corpus.2®9 "This treaty is a part of the criminal law of
the land. This prisoner is charged with a crime in another coun-
try, but the consideration for surrender is assistance in enforcing
the criminal laws of this country. If arrest on civil process would
prevent extradition, a safe asylum for fugitives from justice could
be easily proved. ' ' 21°
§ 361. Delivery within two months after commitment. — Sec-
tion 5273 of the Revised Statutes of the United States provides
that if a person committed for extradition is not delivered up
and conveyed out of the United States within two calendar
months after such commitment over the time actually necessary
to convey the prisoner from the jail to which he was committed
by the readiest way out of the United States, any federal judge
may, upon a proper showing and notice, order the person so com-
mitted to be discharged from custody, unless sufficient cause is
shown why an order of discharge should not be made. It is
no answer to such an application that an officer from the country
seeking extradition is on his way to remove the prisoner, where
the officer might, with the exercise of reasonable diligence, have
been present before the making of the application, and no suffi-
cient cause is shown for his delay.211
§ 362. Transit across the United States. — The conveyance of
a prisoner of one nation across the territory of another is con-
209 In re Mineau, 45 Fed. 188. m In re Dawson, 101 Fed. 253.
210 In re Mineau, 45 Fed. 190. See,
also, Moore on Extradition, sec. 370.
399 RESTORATION OF PROPERTY. [§ 363
trary to the principles of international comity. In a case where
a request was made by Canada for permission to bring a fugitive
criminal from the West Indies to Toronto, through the territory
of the United States, the Department of State declared: "There
is no law of Congress authorizing the President or this Depart-
ment to give the permission which the Canadian authorities re-
quest, and such permission, even if granted, could not avail to
prevent the courts, upon the landing of the fugitive upon Amer-
ican soil, from releasing him by the writ of habeas corpus."212
President Cleveland, in his annual message of December 6, 1886,
suggested that the statutes regulating extradition might be ad-
vantageously amended by providing for the transit across Ameri-
can territory of fugitives surrendered by a foreign government
to a third state,213 and President McKinley, in 1898, made a sim-
ilar recommendation.214
§ 363. Restoration of property. — Under the general usage of
extradition, where property is found on a fugitive at the time of
his arrest, if it appears that it was secured by the crime with
which he is charged, or if it is required as part of the evidence of
the crime, it generally is turned over with the person surrendered.
But if money taken from a prisoner presumptively belongs to him,
it should be transferred under such conditions as will insure its
return to him if it should finally transpire that it was his right-
ful property.215
The customs authorities seized certain jewels that were brought
into the United States in violation of the revenue laws. They
were stolen from the Princess of Orange, and the attorney gen-
eral of the United States advised that as the person who had
brought them into this country had obtained them fraudulently,
against the will and without the knowledge of the owner, and as
she had done nothing to subject them to forfeiture, they were not
liable to condemnation. In law, he held, they stood on the same
footing as if they had been cast upon the shore by the force of
the winds and waves. No other claimant for the property ap-
212 Mr. Strobel, Third Assistant to Mr. Forman, February 20, 1894,
Secretary of State, to Mr. Coppinger, 195 MS. Dom. Let. 520.
Consul at Toronto, No. 9, February *» For. Eel. 1886, XL
20, 1894, 144 MS. Inst. Consuls, 411; S14 For. Eel. 1898, LXXIX.
Mr. Uhl, Acting Secretary of State, 215 Knox, 23 Op. Atty. Gen. 535.
§§ 364, 365] TREATIES OF EXTRADITION AND PROCEEDINGS. 400
peared, and as there was sufficient evidence that they were the
property of the princess, the attorney general advised that the
President might order the attorney for the United States to dis-
continue the prosecution, and might direct the marshal in whose
custody the jewels were to deliver them to the Minister of the
Netherlands.216
§ 364. Expenses of extradition. — The demanding government
should pay the expenses of extradition, including counsel fees.217
A stipulation in a treaty that the " party" who makes the requisi-
tion and receives the fugitive shall bear the expenses, means the
party to the treaty, and not the individual officer or authority of
the government making the demand.218 If, however, a fugitive
is charged with an offense against the laws of a particular state,
and extradition is demanded at the request of the state authori-
ties, the expenses are borne by the state requesting the surren-
der of the fugitive.219 If the offense is against the laws of a
territory, the expenses must be borne by the territor}^220
§ 365. Expenses of district attorney. — Where the statute of a
state makes it the duty of a district attorney to conduct the
prosecution of crimes, he is entitled to reimbursement for expenses
which he has necessarily incurred in obtaining the extradition
from a foreign country of a fugitive from justice ; 221 and a stat-
ute declaring it to be a misdemeanor for any officer of the state
to request or receive any fee or compensation for services or
expenses in procuring from the governor of a state a demand
for the extradition of a fugitive from justice does not extend to
expenses of a district attorney in procuring the extradition of a
fugitive from a foreign country.222
216 Taney, 2 Op. Atty. Gen. 482. gust 21, 1875, 109 MS. Dom. Let.
217 Gushing, 7 Op. Atty. Gen. 396. 489.
218 People v. Board of Supervisors, 221 People v. Board of Supervisors,
56 Hun, 17, 8 N. Y. Supp. 752. 56 Hun, 17, 8 N. Y. Supp. 752.
219 jy£r pigh^ Secretary of State, "2 People v. Supervisors, 134 N.
to Mr. Harvey, June 18, 1874, 102 Y. 1, 31 N. E. 322; Ellis v. Jacob,
MS. Dom. Let. 458. 45 N. Y. Supp. 177, 17 App. Div.
220 Mr. Cadwalader, Acting Sec- 471.
retary of State, to Mr. Ferry, Au-
401 METHOD FOR PAYMENT OF EXPENSES. [§§ 366, 367
§ 366. Method for payment of expenses. — The method fol-
lowed for the payment of expenses is for the commissioner who
has heard the case to send to the Department of State a state-
ment of costs including the expenses incurred by the marshal in
paying the fees of witnesses, and thereupon money is transmitted
to the marshal for the payment of the fees, or, if he has paid
them, for his reimbursement.223 A statute of a state which im-
poses on a county in which it is charged the offense has been
committed the expense of returning from another state a fugitive
from justice does not apply to a case where a fugitive is brought
back from a foreign country.224
It is held by the Department of State that it is the duty of the
demanding government to adduce the evidence which it expects
to establish the criminality of the accused, and this must be done
in such form and language as will be intelligible to and con-
venient for the court, and therefore, that a bill for the services
of a translator is no proper part of the expenses of extradition.225
If the United States is forced to intervene in a conflict between
the authorities of a state and those of the United States to main-
tain its supremacy and secure the extradition, the special ex-
penses should be paid, in the first instance, at least, by the United
States.226 A commissioner or marshal may lawfully charge such
fees as are usual for analogous services rendered to the United
States.227
§ 367. Deserting seamen. — The United States authorities can-
not, in the absence of a treaty stipulation, surrender deserting
seamen.228 The Revised Statutes provide for the delivery up of
deserting seamen to the consul or vice-consul of countries having
-:: Mr. Olney, Secretary of State, of Canadian commissioners were
to Messrs. Joske Brothers, June 20, twenty dollars per day, it would not
1895, 202 MS. Dom. Let. 691. be proper to refuse to pay them.
224 Goldfon v. Allegheny County, Mr. Gresham, Secretary of State, to
14 Pa. Super. Ct. 75. Mr. Ilensel, April 25, 1894, 196 MS.
225 Mr. Frelinghuysen, Secretary Dom. Let. 482.
of State, to Mr. Patterson, April 2, ~6 Cushing, 7 Op. Atty. Gen. 396.
1884, 150 MS. Dom. Let. 448. The 22T Black, 9 Op. Atty. Gen. 497.
Department of State expressed the 22S Tucker v. Alexandroff, 183 U.
opinion that where it appeared that S 424, 22 Sup. Ct. Eep. 195, 46 L.
the customary per diem charges ed. 264.
Treaties — 26
§ 368] TREATIES OF EXTRADITION AND PROCEEDINGS. 402
appropriate treaties.229 It would seem that no obligation is im-
posed by the Revised Statutes, or the British merchant shipping
act, or the treaty stipulations between the United States, on the
one hand ,- and Great Britain and Sweden and Norway on the
other, on the master of a foreign vessel, or on the consuls of the
foreign governments, to make arrests or reclamations of deserters
for the protection of the country in which the desertions are
made. These provisions seem to be intended for the benefit of
the shipmaster, who may exercise his discretion in making or
not making reclamation.230 In 1901, and also in 1902, complaint
was made by the German government that the object of the con-
sular convention of December 11, 1871, was defeated by ship-
ping commissioners, particularly by those of Portland and San
Francisco, who required proof that the person claimed to be a
deserter was a member of the crew, and also, who required it to
be shown that the offense stated by the consul in his applica-
tion for arrest had actually been committed, following the pro-
cedure in extradition cases. This complaint was referred to the
attorney general, who rendered an opinion to the effect that this
course was justified by section 5280 of the Revised Statutes,
which was designed to effectuate treaty stipulations for the re-
turn of deserters, and that the practice was not at variance with
the treaty, and advised that the consul should seek a decision of
the point raised by some competent court.231
§ 368. Gradual extension of list of crimes included in treaties.
No attempt has been made in the preceding sections to enumerate
all the crimes for which extradition may be had, as these are not
the same in all treaties, but the treaties with the different nations
vary in this respect. The first treaty providing for the extra-
dition of criminals was that entered into with Great Britain in
1794, which included as extraditable offenses only murder and
forgery. Gradually the list has been extended, but in the treaties
with some countries certain crimes are mentioned, while no refer-
ence is made to them in others. For instance, the crime of em-
bezzlement is in some treaties an extraditable offense, and in
others not. It may also be observed that in the extradition treaty
229 Rev. Stats., sec. 5280. June 18, 1898, 229 MS. Dom. Let.
230 Mr. Hay, Secretary of State, 42L
to the Secretary of the Treasury, ** For. Eel. 1903, 411-417.
403 REGULATIONS OF STATE DEPARTMENT. [§ 369
with Belgium concluded October 26, 1901, one of the crimes for
which extradition may be had is: "Obtaining money, valuable
securities, or other property by false pretenses, when such an act
is made criminal by the laws of both countries, and the amount
of the money or the value of the property fraudulently obtained
is not less than two hundred dollars, or one thousand francs."
In the treaty with Denmark concluded January 6, 1902, among the
extraditable crimes enumerated is: "Obtaining money, valuable
securities, or other property by false pretenses, or receiving
money, valuable securities, or other property, knowing the same
to have been embezzled, stolen or fraudulently obtained, when
such act is made criminal by the laws of both countries, and the
amount of money or the value of the property fraudulently ob-
tained or received is not less than $200, or kroner 740." In
other extradition treaties offenses of this character are not
mentioned at all. Bribery, which is generally not an extraditable
offense, has been made extraditable by recent treaties with Mexico
and the Netherlands. Therefore, in any given case, the treaty it-
self should be consulted to determine what crimes are included, as
the matter is purely one of treaty regulation.
• § 369. Regulations of State Department. — The State Depart-
ment has made regulations for the issuance of requisitions to
secure the extradition of fugitives from justice. All applica-
tions should be addressed to the Secretary of State, and be
accompanied by the necessary papers. The application must
come from the governor of a state or territory when the extra-
dition is sought for an offense within the jurisdiction of the
state or territorial courts, and from the attorney, general when
the offense is against the United States. The instructions issued
by the Department of State will be found in the appendix.232
232 See Appendix, I.
§ 370] TREATIES WITH INDIANS. 404
CHAPTER XII.
TREATIES WITH- INDIANS.
§ 370. Treaties with Indians.
§ 371. Dawes Commission.
§ 372. Eeport of commission.
§ 373. Further legislation.
§ 374. Tribe party to suit.
§ 375. Appeals to the supreme court.
§ 376. Constitutionality of legislation.
§ 377. Indian treaties prior to legislation.
§ 378. Eelinquishment by Great Britain.
§ 379. Indian right of occupation.
§ 380. Cutting timbers by Indians.
§ 381. Title of United States devested by patent.
§ 382. Abandonment of possession by Indians.
§ 383. Treaty-making power may dispose of government's title.
§ 384. Indian nation not a foreign state.
§ 385. General acts of Congress not applicable to Indians.
§ 386. Indians becoming citizens.
§ 387. Policy of the United States.
§ 388. Effect of treaties with Indians.
§ 389. Eecognition of executive department followed by courts.
§ 390. Liberal construction of treaties.
§ 391. May be controlled by legislation.
§ 392. Technical meaning of treaties not to be considered.
§ 393. Indian tribe not a sovereign nation.
§ 370. Treaties with Indians. — The Constitution confers upon
Congress the power to regulate commerce with foreign nations
and among the several states and with the Indian tribes.1 But,
beginning with the administration of Washington, and continu-
ing to the year 1871, it had been the practice of the government
to enter into treaties with the various Indian tribes. In 1789
President Washington sent a message to the Senate, in which he
stated that it was the general understanding and practice
of nations not to consider any treaty as final and conclusive un-
til ratified by the sovereign or government from whom the com-
missioners signing the treaty derived their powers. "This prac-
tice," said he, "has been adopted by the United States respect-
1 Const., art. I, see. 8, cl. 3.
405 DA WES COMMISSION. [§ 371
ing their treaties with European nations, and I am inclined to
think it would be advisable to observe it in the conduct of our
treaties with the Indians ; for though such treaties being, on their
part, made by their chiefs or rulers, need not be ratified by them,
yet being formed on our part by the agency of subordinate offi-
cers, it seems to be both prudent and reasonable that their acts
should not be binding on the nation until approved and ratified
by the Government. It strikes me that this point should be well
considered and stated, so that our national proceedings in this
respect may become uniform and be directed by fixed and stable
principles."- In 1871, a law was enacted that "No Indian na-
tion or tribe within the territory of the United States shall be
acknowledged or recognized as an independent nation, tribe, or
power with whom the United States may contract by treaty. ' ' 3
In some instances, although the states are not permitted to make
treaties, they did enter into treaties with Indian tribes occupy-
ing land within their limits.4
§ 371. Dawes Commission. — In the act making appropriations
for current and contingent expenses, and fulfilling treaty stipu-
lations with Indian tribes for the fiscal year ending June 30,
3894, Congress provided for a commission for the purpose of ex-
tinguishing the national or tribal title to any lands held by cer-
tain Indian tribes, with a view to such adjustment as may be
requisite and suitable to enable the ultimate creation of a state
or states of the Union in the territory in which such lands are
situated. This commission became known as the "Dawes Com-
mission" from the name of its chairman, Henry L. Dawes, of
Massachusetts.5
2 1 Bichardson's Messages, 61, 62. treaty between state of Georgia and
3 16 U. S. Seals at Large, 566, 18 the Creek Nation, 7 U. S. Stats.
Id. 176; 19 Id. 58; Kev. Stats., sec. at Large, 217; and as to treaty be-
2079. But it was declared that no tween the Seneca and Tuscarora In-
obligation of any treaty lawfully dians and individuals for the sale
made and ratified with any Indian of lands, 7 U. S. Stats, at Large,
nation or tribe prior to March 3, 557, 559.
1871, should be invalidated or im- 3 27 U. S. -Stats, at Large, 612,
paired. 645. The section bearing on this
4 See as to treaty between New subject is: "Sec. 16. The President
York and the Mohawk Indians, 7 shall nominate and, by and with the
U. S. Stats, at Large, 61; as to advice and consent of the Senate,
§ 372]
TREATIES WITH INDIANS.
406
§ 372. Report of commission. — In their report of November
18, 1895, the commission said that if citizenship should be left
without control or supervision to the absolute determination of
the tribal authorities, with power to decitizenize at will, the great-
est injustice would be perpetrated, and many good and law-abid-
ing citizens reduced to beggary. The commission felt compelled
to report that so long as power in these nations should remain
shall appoint three commissioners to
enter, into negotiations with the
Cherokee Nation, the Choctaw Na-
tion, the Chickasaw Nation, the
Muscogee (or Creek) Nation; the
Seminole Nation, for the purpose of
the extinguishment of the national
or tribal title to any lands within
that Territory now held by any and
all of such nations or tribes, either
by cession of the same or some
part thereof to the United States, or
by the allotment and division of the
same in severalty among the Indians
of such nations or tribes, respec-
tively, as may be entitled to the
same, or by such other method as
may be agreed upon between the
several nations and tribes aforesaid,
or each of them, with the United
States, with a view to such an ad-
justment, upon the basis of justice
and equity, as may, with the consent
of such nations or tribes of Indians,
so far as may be necessary, be
requisite and suitable to enable the
ultimate creation of a State or
States of the Union which shall em-
brace the lands within said Indian
Territory.
"The Commissioners so appointed
shall each receive a salary, to be
paid during such time as they may
be actually employed, under direc-
tion of the President, in the duties
enjoined by this act, at the rate of
five thousand dollars per annum,
and shall also be paid their reason-
able and proper expenses incurred
in prosecution of the objects of this
act, upon accounts therefor to be
rendered to and allowed by the
Secretary of the Interior from time
t« time. That such commissioners
shall have power to employ a sec-
retary, a stenographer, and such
interpreter or interpreters as may
be found necessary to the perform-
ance of their duties, and by order
to fix their compensation, which
shall be paid, upon the approval of
the Secretary of the Interior, from
time to time, with their reasonable
and necessary expenses, upon ac-
counts to be rendered as aforesaid;
and may also employ, in like man-
ner, and with the like approval, a
surveyor or other assistant or agent,
which they shall certify in writing
to be necessary to the performance
of any part of their duties.
' ' Such commissioners shall, under
such regulations and directions as
shall be prescribed by the President,
through the Secretary of the In-
terior, enter upon negotiation with
the several nations, of Indians as
aforesaid in the Indian Territory,
and shall endeavor to procure, first,
such allotment of lands in severalty
to the Indians belonging to each
such nation, tribe, or band, respec-
tively, as may be agreed upon as
just and proper to provide for each
such Indian a sufficient quantity of
land for his or her needs, in such
equal distribution and apportion-
ment as may be found just and
407
REPORT OF COMMISSION.
372
in the hands of those who were then exercising it, any further
effort to induce them by negotiation to agree voluntarily to a
change restoring to the people the benefit of the tribal property,
and assuring them that security and order in government enjoyed
by the people of the United States would be in vain. The com-
mission were of the opinion that the insecurity of life, person and
property increasing every day made immediate action imperative,
and that "the pretense that the government is debarred by treaty
obligations from interference in the present condition of affairs
in this territory is without foundation. The present conditions
are not 'treaty conditions.' There is not only no treaty obliga-
tion on the part of the United States to maintain, or even to per-
suited to the circumstances; for
which purpose, after the terms of
such an agreement shall have been
arrived at, the said commissioners
shall cause the lands of any such
nation or tribe or band to be sur-
veyed and the proper allotment to
be designated; and, secondly, to
procure the cession, for such price
and upon such terms as shall be
agreed upon, of any lands not found
necessary to be so allotted or di-
vided, to the United States; and to
make proper agreements for the in-
vestment or holding by the United
States of such moneys as may be
paid or agreed to be paid to such
nation or tribes or bands, or to any
of the Indians thereof, for the ex-
tinguishment of their claims there-
in. But said commissioners shall,
however, have power to negotiate
any and all such agreements as, in
view of all the circumstances af-
fecting the subject, shall be found
requisite and suitable to such an ar-
rangement of the rights and in-
terests and affairs of such nations,
tribes, bands or Indians, or any of
them, to enable the ultimate crea-
tion of a Territory of the United
States with a view to the admis-
sion of the same as a state in the
Union.
"The commissioners shall at any
time, or from time to time, report
to the Secretary of the Interior their
transactions and the progress of
their negotiations, and shall at any
time, or from time to time, if sepa-
rate agreements shall be made with
any nation, tribe or band, in pur-
suance of the authority hereby con-
ferred, report the same to the Sec-
retary of the Interior for submis-
sion to Congress for its considera-
tion and ratification.
"For the purposes aforesaid there
is hereby appropriated out of any
money in the Treasury of the United
States, the sum of fifty thousand
dollars, to be immediately available.
1 ' Neither the provisions of this sec-
tion nor the negotiations or agree-
ments which may be had or made
thereunder shall be held in any way
to waive or impair any right of sov-
ereignty which the Government of
the United States has over or re-
specting said Indian Territory or
the people thereof, or any other
right of the Government relating to
said Territory, its lands, or the
people thereof. Approved March 3,
1893."
§ 373] TREATIES WITH INDIANS. 408
mit, the present condition of affairs in the Indian territory, but,
on the contrary, the whole structure and tenor of the treaties for-
bid it. If our government is obligated to maintain the treaties ac-
cording to their original intent and purpose, it is obligated to
block out at once present conditions. It has been most clearly
shown that a restoration of the treaty status is not only an impos-
sibility, but if a possibility, would be disastrous to the people and
governments alike. The cry, therefore, of those who have brought
about this condition of affairs to be let alone, not only finds no
shelter in treaty obligations, but is a plea for permission to fur-
ther violate those provisions. ' ' 6
§ 373. Further legislation. — The commission under the Indian
appropriation act of 1896 was directed to continue to exercise
their authority and to endeavor to accomplish the objects pre-
scribed to them,7 and was also authorized to hear and determine
the application of all persons applying for citizenship, and they
were directed in determining such applications to respect all laws
of the several nations or tribes, not inconsistent with the laws
of the United States, "and all treaties with either of said na-
tions or tribes, and shall give due force and effect to the rules,
usages, and customs of each of said nations or tribes."8 In
1899, a United States court was established with a single judge,
having jurisdiction over the Indian territory,9 and in 1890, an
act was passed to provide a temporary government for the ter-
ritory of Oklahoma, and to enlarge the jurisdiction of the court.10
In 1895 two additional judges were provided for the court, who
were vested with all the authority, both in term time and in vaca-
tion, as to all causes, both criminal and civil, that might be
brought in the district.11 In 1897 a provision was made in the
Indian appropriation act for the appointment of an additional
6 The commissioner reported control of the money and other
further: "The commission is com- property of Indian citizens, much
pelled by the evidence forced upon less their lives, which they scarcely
them, during their examination into pretend to protect. ' '
the administration of the so-called " 29 Stats, at Large, 321, 329.
government in this territory, to re- 8 29 Stats, at Large, 321-329.
port that these governments in all 9 25 Stats, at Large, 783.
their branches are wholly corrupt, lft 26 Stats, at Large, 81, 93.
irresponsible, and unworthy to be n 28 Stats, at Large, 693.
longer trusted with the care and
409 TRIBE PARTY TO SUIT. [§§ 374. 375
judge for the United. States court, and further powers were con-
ferred upon the commission.1-
§ 374. Tribe party to suit. — In 1898 an act was passed provid-
ing- that when, in the progress of any civil suit, in law or in
equity, pending in any federal court in any district in the ter-
ritory, it should appear to the court that the property of any
tribe was in any way affected by the issues being heard, the
court was authorized and required to make the tribe a party to
the suit by service upon the chief or governor of the tribe, and
the suit should thereafter be conducted and determined as if the
tribe had been an original party to the action. By this act fur-
ther powers were also conferred upon the commission, and it was
declared that after its passage, "the laws of the various tribes
or nations of Indians shall not be enforced at law or in equity
by the courts of the United States, in the Indian territory, ' ' and
that after a fixed date, "all tribal courts in Indian territory shall
be abolished and no officer of said courts shall thereafter have
any authority whatever to do or perform any act theretofore au-
thorized by any law in connection with said courts, or to receive
any pay for same; and all civil and criminal causes then pend-
ing in any such court shall be transferred to the United States
court in said territory by filing with the clerk of the court the
original papers in the suit." 13
§ 375. Appeals to the supreme court. — The Indian appropria-
tion act of July 1, 1898, provided that appeals should be allowed
from the United States courts in the Indian territory direct to the
supreme court of the United States to either party "in all citi-
zenship cases, and in all cases between either of the Five Civilized
Tribes and the United States involving the constitutionality or
validity of any legislation affecting citizenship or the allotment
of lands, in the Indian territory, under the rules and regulations
governing appeals to said court in other cases, ' ' with certain limi-
tations as to the time within which appeals should be perfected.
The act also allowed appeals to be taken in cases decided prior
to the passage of the act.14 It was held that this provision was
not invalid, because it was retrospective, nor was it to be con-
12 30 Stats, at Large, 84. 14 30 Stats, at Large, 571.
13 30 Stats, at Large, 495.
§§ 376, 377] TREATIES WITH INDIANS. 410
sidered as invading the judicial domain, nor as destroying vested
rights, because, although the decrees of the court were made
iinal by statute, still the expectation of a share in the public
lands and money of the tribe could not be considered such an
absolute right of property as to prevent under subsequent legis-
lation the review of these decrees by a higher court.15
§ 376. Constitutionality of legislation. — The legislation rela-
tive to the Indian tribes was challenged as in conflict with trea-
ties made with them. The court said that it was well settled
that an act of Congress may supersede a prior treaty, and that
as the lands and money of these tribes are public, and not held in
individual ownership, the acts of Congress providing for the de-
termination of citizenship in the tribes were not unconstitutional
as impairing or destroying vested rights.16 An Indian tribe is
capable, under the terms of the Constitution, of entering into
treaty obligations with the government of the United States, al-
though from the nature of the case such tribe is subject to the
authority of the United States and to the exercise of its legisla-
tive power.17
§ 377. Indian treaties prior to legislation. — Prior to legisla-
tion by Congress treaties had been entered into with numerous
Indian tribes. When this continent was discovered, the nations
of Europe were desirous to appropriate to themselves such por-
tions as they could secure, and that conflicting claims might be
harmonized and wars averted, it was determined that the right
of acquisition, as between themselves, should be determined by
the principle of discovery, which gave title to the government
under whose authority the discovery was made as against all
other European governments. Possession would consummate the
title thus commenced by discovery. The nation making the dis-
covery had the sole right of acquiring the soil from the natives
and establishing settlements upon it, and to the assertion of this
right to which all European nations gave assent. While the
15 Stephens v. Cherokee Nation, 174 U. S. 445, 19 Sup. Ct. Eep. 722,
174 U. S. 445, 19 Sup. Ct. Eep. 722, 43 L. ed. 1041.
43 L. ed. 1041. " Choctaw Nati°n ^ United
States, 119 U. S. 1, 7 Sup. Ct. Rep.
« Stephens v. Cherokee Nation,
411 RELINQUISHMENT BY GREAT BRITAIN. [§§ 378, 379
rights of the original inhabitants were impaired to a large de-
gree, they were not completely disregarded. They were deprived
of their rights as independent nations to complete sovereignty,
but it was conceded that they were rightful occupants of the soil,
having a legal as well as just claim to hold its possession. As
exclusive title was given to those who made discovery, it fol-
lowed that the power of the original inhabitants to dis-
pose of the soil as they pleased could not be admitted. The
ultimate dominion was, according to this principle, in the differ-
ent nations making discovery. By virtue of this dominion, these
nations, while respecting the rights of occupancy of the natives,
claimed to, and did, exercise the power to grant the soil, and
grants made by them have been universally understood as con-
veying a title to the grantee, Subject only to the right of oc-
cupancy on the part of the Indians.
§ 378. Relinquishment by Great Britain. — Great Britain, in the
treaty of peace at the conclusion of the Revolution, acknowledged
the United States, naming the respective states "to be free,
sovereign and independent states," and "relinquishes all claim to
Government Property & Territorial Rights of the same & every
part thereof, ' ' 18 and the states thus acquired the powers of gov-
ernment and the right to the soil previously existing in Great
Britain. The exclusive power to extinguish the Indian right of
occupancy was vested in the government, having for the time be-
ing the constitutional right to exercise it. Hence, a title to lands
under grants to private individuals made by Indian tribes or na-
tions cannot be recognized in the courts of the United States.19
§ 379. Indian right of occupation. — A grant to a railroad com-
pany of land to which the Indian title had not been extinguished
conveys the fee to the company, subject, however, to the right
of Indian occupancy. Private parties cannot interfere with or
18 Treaty of 1783, art. 1; Comp. 34 Sup. Ct. Eep. 567, 38 L. ed. 350.
Treaties in Force, 293. See, also, Case v. Toftus, 14 Saw.
19 Johnson v. Mclntosh, 8 Wheat. 217, 39 Fed. 733, 5 L. E. A. 688;
543, 5 L. ed. 681. As to discoveries Stockton v. Williams, 1 Doug,
and settlements made by citizens of (Mich.) 546; Montgomery v. Ives,
the United States in Oregon, see 13 Smedes & M. (Miss.) 173.
Shively v. Bowlby, 152 U. S. 50,
§§ 380, 381] TREATIES WITH INDIANS. 412
place in controversy the manner, time or conditions of ex-
tinguishing the Indian right of occupancy, as such questions are
exclusively for the consideration of the government.20 In de-
termining what lands are occupied, consideration should be given
to the habits and modes of the life of the Indians.21 As the
paramount source of title is in the United States, the government
has the power to dispose of public lands situated within an In-
dian reservation, without the consent of the Indians.22 But an
Indian right of occupancy is sufficient foundation for the main-
tenance of an action of ejectment.23 The fee is in the state of
section 16 of every township occupied by Indians where the
same has been granted to the state by the United States.24
§ 380. Cutting timber by Indians. — It may be said, generally,
that timber while standing on the land is a part of the realty
and can be sold only as the land could be, and as land in the
possession of Indians cannot be sold by them, the timber, until
rightfully severed, cannot be sold. Logs not cut for the improve-
ment of the land may be recovered by the United States in an
action of replevin. It may also be said as the Indians possess
only a right of occupancy in the lands, it is presumed that they
have no authority to cut and sell timber, and every purchaser
from them is charged with this presumption.25 But a distinction
is to be drawn where, under certain treaties and acts of Con-
gress, Indian allottees are vested with sufficient title in their al-
lotments, notwithstanding the restraint placed upon the alienation
of the land to authorize the cutting of timber from the land for
the purposes of sale, and not by way of improvements, without
obtaining the sanction of the Department of the Interior.26
§ 381. Title of the United States devested by patent. — So,
where lands were allotted to the Chippewa Indians under a
20 Buttz v. Northern Pac. E. E. M Beecher v. Wetherby, 95 U. S.
Co., 119 U. S. 55, 7 Sup. Ct. Eep. 525, 24 L. ed. 441; Eoberts v. Eail-
105, 30 L. ed. 330. way Co., 43 Kan. 106, 22 Pac. 1007.
21 Mitchell v. United States, 9 25 United States v. Cook, 19 Wall.
Pet. 746, 9 L. ed. 296. 591, 22 L. ed. 210.
22 United States v. Alaska Assn., 26 United States v. Paine Lumber
79 Fed. 156. Co., 206 U. S. 467, 51 L. ed. 1139,
23 Marsh v. Brooks, 8 How. 232, 15 Sup. Ct., Advance Sheets, 697,
.12 L. ed. 1060. October Term, 1906.
413 ABANDONMENT OF POSSESSION BY INDIANS. [§§ 382, 383
treaty and patented to them with the restriction that they should
not sell, lease or in any manner alienate the land without the
consent of the President of the United States, a patent, it is held,
devests the United States notwithstanding the restriction of all
title to the land or timber growing on the lands ; nor, under such
circumstances, is there any cause of action in the United States
to recover the value of the timber cut from such allotments un-
der an improvident contract made by the allottees and the pur-
chaser.27
§ 382. Abandonment of possession by Indians. — The right of
possession in the patentee of lands in the occupancy of Indians
will vest immediately on the abandonment of such possession.28
A patentee of land occupied by Indians takes it, however, sub-
ject to the right of such occupancy.29 A purchaser from an In-
dian acquires only a mere right of possession.30 And this right
of possession may be modified by the United States at will.31
While the right of possession may pass, the Indians have no
capacity to pass the fee to lands occupied by them,32 and conse-
quently a deed from the Indians will convey no title.33
§ 383. Treaty-making power may dispose of government Js title.
The government 's title to lands may be disposed of to Indians un-
21 United States v. Auger, 153 Fed. Gardner, 133 Fed. 285, 66 C. C.
671. It had been held that lands A. 663. In view of the cases cited
allotted to Indians in severalty, sub- above, it may well be doubted if
ject to the conditions imposed by this case has not been overruled in-
the general allotment act of 1887, directly by them,
declaring that the United States a Snell v. Bailway Co., 78 Iowa,
shall hold the allotted lands in trust 94, 42 N. W. 590.
for the allottee for twenty-five years, =" Byrne v. Alas, 74 Cal. 635, 16
or so much longer as the President Pac. 526.
may determine, and then convey the 39 Sparkman v. Porter, 1 Paine,
same to such allottee or his heirs 471, Fed. Gas. No. 7143.
in fee, and that any conveyance or 31 Caldwell v. Robinson, 59 Fed.
contract in relation to the same 654.
made before the expiration of the a2 East Haven v. Hemingway, 7
period specified shall be null and Conn. 186, 198.
void, remained the property of the 33 Buck v. Holloway, 2 J. J.
United States during the term of Marsh. 164; Breaux v. Johns, 4 La.
the trust, and consequently that the Ann. 142, 50 Am. Dec. 557. See,
government might maintain an ac- also, Cornet v. Winton, 2 Yerg.
tion for the timber unlawfully cut (Tenn.) 145; Southampton v. Mecox
from such lands. United States v. Co., 116 N. Y. 7, 22 N. E. 389.
§ 384] TREATIES WITH INDIANS. 414
der the treaty-making power without the consent of Congress.34
In a word, the fee is in the United States, and the title of the In-
dian is but a right of occupancy.35 Lands in California, which at
the date of the treaty with Mexico were occupied by Indian tribes,
became a part of the public domain, and subject to pre-emption, if
no claim for them was presented by the occupants to the land
commissioners within the time limited by the act of Congress.36
Congress possesses the exclusive right of pre-emption to all lands
lying in the territories of the United States.37 The grant to the
state of the sixteenth and thirty-sixth sections comprises such sec-
tions in the occupancy of Indians.38
§ 384. Indian nation not a foreign state. — The Constitution
describes the judicial power as extending to controversies be-
tween a state and its citizens and foreign states, citizens or subjects,
and the supreme court of the United States has original jurisdic-
tion in cases in which a state shall be a party. The Cherokee Na-
tion sought to obtain an injunction to prevent the execution of
certain acts of the legislature of the state of Georgia in the ter-
ritory of the Cherokee Nation in that state, claiming the right
to proceed in the supreme court of the United States as a foreign
state against the state of Georgia. That court decided that the
Cherokees are a state, having been uniformly treated as such
since the settlement of the United States, but that the condition of
the Indians in relation to the United States was unlike that of
and other two people in existence; and they could not be de-
nominated foreign nations nor a foreign state within the mean-
ing of the Constitution.39
34 Mining Co. v. Dickert etc. Co., 36 Thompson v. Doaksum, 68 Cal.
<5 Utah, 196, 21 Pac. 1007, 5 L. E. 595, 10 Pac. 200.
A. 267. "" Johnson v. Mclntosh, 8 Wheat.
35 Goodfellow v. Muckey, 1 Me- 543, 5 L. ed. 681; Fleliher v. Peck,
Crary, 244, Fed. Cas. No. 5537. 0 Cranch, 142, 3 L. ed. 142. See,
Indians have only a possessory right also, Eoberts v. M. K. T. & R. E.
in the lands occupied by them. Co., 43 Kan. 108, 22 Pac. 1008;
Cherokee Nation v. Georgia, 5 Pet. Blecker v. Bond, 3 Wash. C. C. 542,
48, 8 L. ed. 42. The dominion ex- Fed. Cas. No. 1534.
ercised by Great Britain over In- 38 Eoberts v. M. K. & T. E. E.
dians was transferred to the United Co., 43 Kan. 108, 22 Pac. 1008.
States. State v. Foreman, 8 Yerg. 39 Cherokee Nation v. State of
(Tenn.) 256. Georgia, 5 Pet. 1, 8 L. ed. 25.
415 CONGRESSIONAL ACTS. [§§ 385, 386
§ 385. General acts of Congress not applicable to Indians. —
Indians are bound by acts of Congress applicable in terms to
them.40 But general acts of Congress are not considered as ap-
plying to Indians unless the language is clearly intended to in-
clude them.41 The right of eminent domain may be exercised
by the United States for the purpose of constructing a railroad
across the land held by the Indians under treaty with the United
States.42 The laws of a state can have no operation or effect
over Indians in their tribal relations.43 But although the Indian
title has not been relinquished, a state may extend its jurisdic-
tion over a tract of Indian land within the borders of the state.44
The marriage of a white person to an Indian woman and his
adoption into the tribe will, in suits between himself and other
members of the tribe, confer exclusive jurisdiction on the tribal
courts.45 According to the treaty between the United States and
the Cherokee Nation, a murder committed by an Indian within
the jurisdiction of that nation is an offense against it and not
against the United States, the fifth amendment not applying.46
§ 386. Indians becoming citizens. — A state has no power to
regulate in any manner the social relations of an organized In-
dian tribe ; 47 and an Indian cannot become a citizen of the United
States without its consent and co-operation.48 The courts of the
United States have jurisdiction of a suit brought by the govern-
40 United States v. Kagama, 118 The criminal laws of a state do not
U. S. 379, 6 Sup. Ct. Eep. 1111, 30 extend to tribal Indians living in a
L. ed. 230. reservation. State v. Campbell, 53
41 Elk v. Wilkins, 112 U. S. 100, Minn. 356, 55 N. W. 554, 21 L. E.
5 Sup. Ct. Eep. 44, 28 L. ed. 645. A. 172. See, also, People v. Dibble,
42 Cherokee Nation v. Kansas Ey. 16 N. Y. 221. But see unless pro-
Co., 135 U. S. 653, 10 Sup. Ct. Eep. hibited by treaty or act admitting
i*70, 34 L. ed. 301. state, State v. Doxtater, 47 Wis.
43 Kobogum v. Jackson Iron Co., 284, 2 N. W. 241.
76 Mich. 507, 43 N. W. 605. 4T United States v. Barnaby, 51
44 Caldwell v. State, 1 Stew. & P. Fed. 23.
(Ala.) 327. « United States v. Osborne, 6
43 Eaymond v. Eaymond, 83 Fed. Saw. 408, 2 Fed. 59. But see
722, 55 U. S. App. 92, 28 C. C. A. quaere in Elk v. Wilkins, 112 U. S.
38. 119, 5 Sup. Ct. Eep. 49, 28 L. ed.
48 Talton v. Mayes, 163 U. S. 383, 649.
16 Sup. Ct. Eep. 986, 41 L. ed. 197.
^ -')S7, 388] TREATIES WITH INDIANS. 416
ment for the benefit of an Indian band which has not been recog-
nized by the United States as constituting a tribal state.49
§ 387. Policy of the United States.— While the United States
has power, it is not the policy of the government to disregard the
occupancy of the Indians, and convey title and possession, not-
withstanding the occupancy of the Indians has not been relin-
quished.50 While the state has no* right to tax the inhabitants of an
Indian reservation,51 it may tax lands held by Indians in severalty
when they are not situated within any recognized Indian domain.52
A state is not obliged to give effect to the laws of an Indian tribe
by the rules of international comity.53 An Indian cannot be con-
sidered a foreign subject so as to give him the right to sue in the
federal courts,54 nor when sued in the state court is he entitled
to remove the cause to the federal courts.55
§ 388. Effect of treaties with Indians. — Under treaties giving
exclusive jurisdiction over territory to an Indian nation, laws of
a state providing for licenses to enter and occupy such territory
are void.56 The supreme court of the United States has jurisdic-
tion to pass on the controversy, because the decision of the su-
preme court of the state upholding the legislation draws in ques-
tion the effect of the treaty.57 A state has no power to withdraw
Indians from the operation of an act of Congress which provides
for the regulation of the liquor traffic with them.58 An Indian
43 United States v. Boyd, 68 Tex. 5S United States v. Holliday, 3
580. Wall. 407, 18 L. ed. 186; United
r'° Gaines v. Hale, 26 Ark. 183. States v. Boyd, 83 Fed. 554, 42 U.
31 Moore v. County Commissioners, S. App. 637, 27 C. C. A. 592. The
2 Wyo. 22. sale of liquor to an Indian is illegal.
52 Blue Jacket v. Commissioners, United States v. Shaw-Mux, 2 Saw.
3 Kan. 299. 365, Fed. Cas. No. 16,268; United
M Roche v. Washington, 19 Ind. States v. Osborne, 6 Saw. 407, 2 Fed.
56, 81 Am. Dec. 378. 59; United States v. Earl, 9 Saw. 82,
54 Karrahoo v. Adams, 1 Dill. 346, 17 Fed. 77; United States v. Flynn,
Fed. Cas. No. 7614. 1 Dill. 452, Fed. Cas. No. 15,124;
55 Paul v. Chilsoquie, 70 Fed. 402. United States v. Burdick, 1 Dak. 143,
56 Worcester v. Georgia, 6 Pet. 515, 46 N. W. 573; Eenfrow v. United
8 L. ed. 483. States, 3 Okla. 170, 41 Pac. 91.
57 Worcester v. Georgia, 6 Pet.
515. 8 L. ed. 483.
417 COURTS FOLLOW EXECUTIVE DEPARTMENT. [§§ 389, 390
cannot separate from his tribe,59 and the prohibition by Congress
of the sale of liquors to Indians is constitutional.60
§ 389. Recognition of executive department followed by courts.
The courts will follow the recognition of the existence of a tribal
organization by the proper executive department.61 A state law
in violation of the terms of a treaty with Indians cannot be en-
forced.62 A contract which is made in violation of a treaty with
Indians and an act of Congress is void.63
§ 390. Liberal construction of treaties. — The language used in
treaties with Indians should be liberally construed in their favor,
and laws placing upon them liabilities or obligations should not
be extended beyond their plain import. The property of In-
dians who are under the protection of treaties and the laws of
Congress is withdrawn from the operation of state laws and is
not taxable.64 The proposition whether or not certain lands in
the possession of an Indian chief and his descendants are under
treaties exempt from taxation presents a federal question.65
"These Indian tribes are the wards of the nation," said Mr.
Justice Miller; "they are communities dependent on the United
States; dependent largely for their daily food; dependent for
C!> United States v. Winslow, 3 It was held that the acts of the as-
Saw. 341, Fed. Cas. No. 16,742; Ex sembly of North Carolina incorpo-
parte Byers, 32 Fed. 408; United rating the Eastern Band of Indians
States v. Certain Property, 1 Ariz. and confirming certain contracts
40, 25 Pac. 520; People v. Sweetser, were void. United States v. Boyd,
1 Dak. 316, 46 N. W. 455; Compo 83 Fed. 554, 27 C. C. A. 592, 42
v. Jackson Iron Co., 50 Mich. 583, 16 U. S. App. 637. The laws of Ten-
N. W. 300. nessee, however, came into full ef-
60 United States v. Forty-three feet after the removal of the Chicka-
Gallons of Whisky, 93 U. S. 188, 23 saws, subject to the rights secured
L. ed. 846. But see United States by treaty. Love v. Pamplin, 21 Fed.
v. Seveloff, 2 Saw. 317, Fed. Cas. 759.
No. 16,252, that certain laws relating 63 Uhlig v. Garrison, 2 Dak. Ter.
to the sale of liquors to Indians do 96, 2 N. W. 255.
not extend to Alaska. M Blue Jacket v. Commissioners of
61 United States v. Holliday, 3 Johnson Co. (The Kansas Indians),
Wall. 407, 18 L. ed. 182; Territory 5 Wall. 737, 18 L. ed. 667; Wan-
v. Cox, 6 Dak. 521; Me-shing-go-me- Zop-E-Ah v. Board of Commis-
sea v. State, 36 Ind. 316; Brown v. sioners, 5 Wall. 760, 18 L. ed. 675.
Steele, 23 Kan. 675. " Wau-pe-man-qua v. Aldrich, 28
62 In re Kace Horse, 70 Fed. 610. Fed. 497.
Treaties — 27
§§ 391, 392] TREATIES WITH INDIANS. 418
their political rights. They owe no allegiance to the states and
receive from them no protection; because of the local ill-feeling,
the people of the states where they are found are often their
deadliest enemies. From their very weakness and helplessness,
so largely due to the course of dealing of the Federal Govern-
ment with them, and the treaties in which it has been promised,
there arises the duty of protection, and with if the power. This
has always been recognized by the Executive, by Congress, and
by this court, whenever the question has arisen." 66
§ 391. May be controlled by legislation. — The government
of the United States, instead of dealing with the Indians by
treaties, has the right and authority to control them by legisla-
tion, because they are within the geographical limits of the United
States. It follows by necessary implication that Congress has
power to legislate for their protection and for the protection of
those with whom they come in contact. But as long as they
maintain their tribal relations, the states possess no such power
over them, because they are under no obligation of allegiance to
a state, within which their reservation may exist, and, on the
other hand, the state extends to them no protection.67
§ 392. Technical meaning of treaties not to be considered.—
The words of a treaty may be construed to exclude the right of a
state to sell Indian land for taxes,68 and a treaty with Indians will
be favorably construed with reference to their right to hunt.69 In
the construction of a treaty with Indians the object should be
not to consider it according to the technical meaning of its words
66 United States v. Kagama, 118 L. ed. 497; Missouri Kiver, Ft. S. &
U. S. 375, 383, 6 Sup. Ct. Rep. 1109, G. Co. v. Morris, 13 Kan. 336;
30 L. ed. 228; Auditor General v. Williams, 94
67 United States v. Kagama, 118 Mich. 188, 53 N. W. 1100; The
U. S. 375, 6 Sup. Ct. Eep. 1109, Kansas Indians, 5 Wall. 757, 18 L.
30 L. ed. 228; Choctaw Nation v. ed. 673.
United States, 119 U. S. 27, 7 Sup. 69 In re Race Horse, 70 Fed. 605.
Ct. Rep. 90, 30 L. ed. 315; Wau- That if an Indian has parted with
pe-man-qua v. Aldrich, 28 Fed. 497; his lands they are subject to taxa-
In re Race Horse, 70 Fed. 605; Mis- tion, see Peck v. Miami County Com-
souri River, Ft. S. & G. R. Co. v. missioners, 4 Dill. 370, Fed. Gas.
Morris, 13 Kan. 316. No. 10,891.
68 Wau-pe-man-qua v. Aldrich, 28
419 INDIAN TRIBE NOT A SOVEREIGN NATION. [§ 393
by learned lawyers, but to view it in the sense in which they
would naturally be understood by the Indians. A treaty between
the United States and an Indian tribe may be sufficient to grant
title to individuals to parts of the lands of the tribe, without an
act of Congress or patent from the executive authority of the
United States, if such was the intention of the treaty.70 No juris-
diction exists in the court of an action against the Choctaw Na-
tion or its chief officers when sued in their official capacity for
an alleged debt or liability of the nation, and when the judgment,
if recovered, would operate against the nation.71
§ 393. Indian tribe not a sovereign nation. — Congress has the
power to authorize the construction of a railroad through the ter-
ritory of an Indian tribe, as such tribe is not a sovereign nation.
The right of eminent domain can be exercised without its consent by
the United States upon the making of just compensation to the
owner.72 For the purpose of determining who are the communal
owners entitled to receive per capita compensation, the courts
will follow Indian laws and customs so far as they create no con-
flict with the laws of the United States or with the purposes of
the treaty or national law and justice.73
70 Jones v. Meehan, 175 U. S. 1, Labade v. United States, 31 Ct. of
20 Sup. Ct. Rep. 1, 44 L. ed. 49. Cl. 205; .Janis v. United States, 32
71 Thebo v. Choctaw Tribe of In- Ct. of Cl. 407; Brown v. United
dians, 66 Fed. 372, 13 C. C. A. 519. States, 32 Ct. of Cl. 432; Friend v.
72 Cherokee Nation v. Southern United States, 29 Ct. of Cl. 495; Con-
Kansas R. Co., 135 U. S. 641, 10 nor v. United States, 19 Ct. of Cl.
Sup." Ct. Rep. 965, 34 L. ed. 295. 675.
The court of claims has had occa- ™ New York Indians v. United
sion to pass upon many claims aris- States, 40 Ct. of Cl. 448.
ing from Indian depredations. See
AMBASSADORS AND CONSULS. 420
CHAPTER XIII.
AMBASSADOBS,. CONSULS, CONSULAR COUETS AND FOEEIGN
.JUDGMENTS.
§ 394. General comments.
§ 395. Courts bound by recognition of President.
§ 396. Proof by parol evidence.
§ 397. Appointment of ambassadors and consuls.
§ 398. Citizen appointed diplomatic representative.
§ 399. Privileges of ambassadors and ministers.
§ 400. Eesignation as bar to certiorari.
§ 401. Eights and privileges of consuls.
§ 402. Contract made in official capacity.
§ 403. Consular regulations of United States.
§ 404. Violation of criminal laws.
§ 405. In eastern countries.
§ 406. United States court for China.
§ 407. What law to prevail.
§ 408. Object of this court.
§ 409. Common law in force.
§ 410. Obtaining money under false pretenses.
§ 411. Suits against consuls.
§ 412. Exemption under such statutes not waived by failure to plead.
§ 413. Eeclamation assessment.
§ 414. Concurrent jurisdiction with state courts.
§ 415. Eight may be waived.
§ 416. Compulsory attendance of consuls as witnesses.
§ 417. Consular convention with France.
§ 418. Sixth amendment to Constitution.
§ 419. Diplomatic action.
§ 420. Distinction as witnesses between ambassadors and consuls.
§ 421. Good excuse to be shown.
§ 422. Subpoena in behalf of prosecution.
§ 423. Contention of the government.
§ 424. Insurgent government becoming established.
§ 425. Subpoena by a state court.
§ 426. Archives privileged.
§ 427. American consuls as witnesses.
§ 428. Instructions of Department of State.
§ 429. Other instances.
§ 430. Instructions of Mr. Hay, Secretary of State.
§ 431. Facts within personal knowledge of consul.
§ 432. Evidence before courts-martial.
§ 433. Information received in official capacity.
§ 434. International law part of the law of United States.
421 GENERAL COMMENTS. [§§ 394, 395
§ 435. Eeciprocity in foreign judgments.
§ 436. Foreign judgments in personam.
§ 437. Principle as declared by supreme court of the United States.
§ 438. International law founded upon mutuality.
§ 439. Dissenting views.
§ 440. Subject continued — Impeachment for fraud.
§ 441. In the absence of fraud the merits cannot be inquired into.
§ 442. Mexican judgments.
§ 443. Canadian judgments.
§ 444. Kule in England.
§ 445. Contract to influence corruptly officer of foreign government.
§ 446. Consul cannot assume position antagonistic to his government.
§ 447. Jurisdiction of consuls by treaties.
§ 448. Liability for false imprisonment.
§ 449. Authority of consul in enemy's country.
§ 450. Power of foreign consul to commence suit in rein.
§ 451. Intervention of consul.
§ 452. Administration of estates.
§ 453. Shipping and seamen.
§ 454. Action of consul not conclusive.
§ 455. American seamen.
§ 456. Fees for prosecution of claim.
§ 457. Judicial notice of signature and seal.
§ 458. Acknowledgments and affidavits by consular officers.
§ 394. General comments. — It is not within the scope of this
work to enter into a detailed examination of the rights and duties
of ambassadors and consuls, but as the rights of these officers
depend not only on the principles of international law, but also,
frequently, on the provisions of treaties, a brief notice may not be
inappropriate. It may be observed in passing that a foreign
minister has the right to remonstrate with the executive to whom
he is accredited upon any measure affecting his country. "But
it will ever be denied as a right of a foreign minister that he
should endeavor, by an address to the people, oral or written, to
forestall a depending measure, or to defeat one which has been
decided. " l No communication can be received by the Depart-
ment of State from the subjects of another country, except
through the minister of that country.2
§ 395. Courts bound by recognition of President. — The courts
are bound by the recognition given by the President to a foreign
1 Mr. Randolph, Secretary of 2 Mr. Monroe, Secretary of State,
State, to M. Fauchet, French Min- to Admiral Cochrane, April 5, 1815,
ister, June 13, 1795, 8 MS. Dom. MS. Notes to For. Legs., II, 80.
Let. 262.
§§ 396, 397] AMBASSADORS AND CONSULS. 422
minister, and they cannot inquire whether a person who is rec-
ognized by the government as the minister of a foreign power
was duly appointed or not.3 A certificate issued by the Secre-
tary of State, under his seal of office, stating that a person has been
recognized as a foreign minister by the Department of State, con-
stitutes full evidence of the fact of his authorization and reception
as such by the President of the United States.4 It is deemed
inadvisable for a diplomatic agent over his own signature to ap-
peal to the press. The Department of State should be addressed
if a foreign legation has any cause of complaint against the
government or any person in its service.5
§ 396. Proof by parol evidence. — It is competent to prove by
parol evidence the period during which a person was considered
by the United States as a foreign minister.6 The origin and sup-
port of the privileges of foreign ministers have their support in
the law of nations.7
§ 397. Appointment of ambassadors and consuls. — By the
Constitution of the United States the President is vested with
the power of nominating, and by and with the consent of the Sen-
ate of appointing, ambassadors, other public ministers and con-
suls.8 The Constitution also provides that "Congress may by
law vest the appointment of such inferior officers as they think
proper in the President alone, in the courts of law, or in the
heads of departments. ' ' 9 Under this clause Congress can con-
fer power upon the President to appoint a vice-consul.10 The
word "consul," as used in the Constitution, does not include a
subordinate and temporary officer like that of vice-consul. "Be-
cause the subordinate officer is charged with the performance of
3 United States v. Ortega, Fed. 6 United States v. Liddle, Fed.
Cas. No. 15,971, 4 Wash. C. C. 531; Cas. No. 15,598, 2 Wash. C. C. 205.
Torlade d'Azambuja v. Pereira, 1 7 Holbrook v. Henderson, 6 N. Y.
Miles, 366. Super. Ct. (4 Sand. 619.)
4 United States v. Benner, Fed. 8 Const., art. II, sec. 2.
Cas. No. 14,568, Baldw. 234. 9 Const., art. II, sec. 2.
5 Mr. Fish, Secretary of State, to 10 United States v. Eaton, 169 U.
Mr. Garcia, Argentine Minister, No- S. 331, 18 Sup. Ct. Eep. 374, 42 L.
vember 5, 1869, MS. Notes to Ar- ed. 767.
gentine Leg., VI, 78.
42o CITIZEN APPOINTED DIPLOMATIC REPRESENTATIVE. [§§ 398, 399
the duty of the superior for a limited time, and under special and
temporary conditions he is not thereby transferred into the su-
perior and permanent official. To so hold would render void any
and every delegation of power to an inferior to perform, under
any circumstances or exigency, the duties of a superior officer, and
the discharge of administrative duties would be seriously hin-
dered."11
§ 398. Citizen appointed diplomatic representive. — The su-
preme court of the United States quotes with approval this lan-
guage of Mr. Secretary Evarts: "This government objects to re-
ceiving a citizen of the United States as the diplomatic repre-
sentative of a foreign power. Such citizens, however, are fre-
quently recognized as consular officers of other nations, and this
policy is not known to have hitherto occasioned any incon-
venience." And again: "The usage of diplomatic intercourse
between nations is averse to the acceptance, in the representative
capacity, of a person who, while native-born in the country which
sends him, has yet acquired lawful status as a citizen by naturali-
zation of the country to which he was sent. ' ' 12 The court also
approved the language of Mr. Secretary Bayard that: "It has
long been the almost uniform practice of this government to de-
cline to recognize American citizens as the accredited diplomatic
representatives of foreign powers. The statutory and jurisdic-
tional immunities and the customary privileges of right attach-
ing to the office of a foreign minister make it not only incon-
sistent, but at times even inconvenient, that a citizen of this coun-
try should enjoy so anomalous a position."13 But there is no
presumption of the alienage of the defendant from the mere fact
that he is the consul in the United States of a foreign govern-
ment.14
§ 399. Privileges of ambassadors and ministers. — Ambassadors
and ministers represent their sovereign and are exempt from
the jurisdiction of both civil and criminal laws.15 But they will
11 Mr. Justice White, in United 15 The Schooner Exchange v. Mc-
States v. Eaton, supra. Faddon, 7 Cranch (U. S.), 116, 3 L.
12 Ex parte Baiz, 135 U. S. 403, ed. 287; State v. De La Foret, 2 Nott
10 Sup. Ct. Eep. 854, 34 L. ed. 222. & McC. 217; 1 Kent's Commentaries,
13 Ex parte Baiz, supra. 15.
14 Bors v. Preston, 111 U. S. 252,
4 Sup. Ct. Rep. 407, 28 L. ed. 419.
§§ 400, 401] AMBASSADORS AND CONSULS. 424
not be exempt from the operation of a mechanic's lien law as to
any structure not used for purposes relating to their representa-
tive character.16 A servant of a foreign minister is entitled to
like protection.17 Courts of law are obliged to accept the declara-
tion of a foreign minister when his character as such has been
established, as conclusive proof of his authority to maintain a
suit on behalf of his government. A copy of his instructions
cannot rightfully be demanded either by the courts or the govern-
ment to which he is accredited.18
§ 400. Resignation as bar to certiorari. — If an application is
made to the supreme court of the United States for a writ of
certiorari to direct an inferior court to certify an indictment on
the ground that the accused was at the time of the filing of the
indictment the political agent of a foreign government, the ap-
plication will be denied when it appears that before the filing of
the indictment he was requested by his government to resign and
did resign, and nothing is shown by the records of the Depart-
ment of State as to his relations to the United States except a
denial to him of the privilege of a free entry of goods imported
for his use.19
§ 401. Rights and privileges of consuls. — A consul is merely a
commercial agent. He is not entitled to demand the privileges
and immunities that are attached to the person of a minister or
ambassador.20 A consul is not a judicial officer, and a passport
executed by an American consul residing in a foreign country al-
lowing a person to return from that country to the United States
is not evidence that he has been in such foreign country.21 He,
16 Byrne v. Herran, 1 Daly (N. Y.), if he is assaulted in turn. United
344. States v. Ortega, Fed. Gas. No. 15,-
1T Lockwood v. Coysgarne, 3 Burr. 971, 4 Wash. C. C. 531. But he may
1676; Novello v. Toogood, 1 Barn. rot be arrested on process. United
& C. 562; Macartney v. Garbutt, 24 States v. Benner, Baldw. (U. S.)
Q. B. D. 368. 234, Fed. Gas. No. 14,568.
18 Mexico v. De Arangoiz, 5 Duer ™ 1 Kent's Commentaries, 44;
(N. Y.), 643. Wheaton's Int. Law (Dana's ed.),
19 In re Heitz, 111 U. S. 766, 4 sec. 249.
Sup. Ct. Eep. 698, 28 L. ed. 592. If 21 Foster v. Davis, 1 Litt. (Ky.)
a public minister commences an as- 71.
sault he cannot claim his privilege
425 CONTRACT MADE IN OFFICIAL CAPACITY. [§§ 402, 403
like other foreign residents that owe a temporary allegiance to
the state, is subject to the local laws both in civil and criminal
cases.22 "The general principle is that a foreign consular of-
ficer is subject to no charge in the country of residence, by rea-
son of his official capacity or acts; but that if such officer con-
tracts private interests there, such as engaging in business, ac-
quiring taxable property and the like, he is subject to the same
rules as a private individual."23
§ 402. Contract made in official capacity. — But a consul-gen-
eral is not personally liable, if he makes a contract in his official
capacity for the benefit of his government.24 "The character of
consul does not give any protection to that of merchant, when
they are united in the same person."25 In all that concerns his
trade, a trading consul is liable to ordinary process the same as a
native merchant.26 "Consuls are not public ministers. What-
ever protection they may be entitled to in the discharge of their
official duties, and whatever special privileges may be conferred
upon them by the local laws and usages, or by international com-
pact, they are not entitled by the general law of nations to the
peculiar immunities of ambassadors. " 27
§ 403. Consular regulations of United States. — In the Con-
sular Regulations of the United States it is stated: "Although
t consuls have no right to claim the privileges and immunities of
diplomatic representatives, they are under the special protection
of international law, and are regarded as the officers both of the
; state which appoints and the state which receives them. The
extent of their authority is derived from their commissions and
their exequaturs. It is believed that the granting of the latter
instrument, without express restrictions, confers upon a consul
22 Coppell v. Hall, 7 Wall. (U. S.) Minister, April 21, 1884, MS. Notes
553, 19 L. ed. 244; Wilcox v. Luco, tc Eussia, VII, 449.
118 Cal. 639, 62 Am. St. Eep. 305, 45 M Jones v. Le Tombe, 3 Dall. 384,
L. E. A. 579, 50 Pac. 758, 45 Pac. 1 L. ed. 647.
' 676; 1 Kent's Commentaries, 44; In 23 Coppell v. Hall, 7 Wall. (U. S.)
re lasigi, 79 Fed. 751; Gittings v. 553, 19 L. ed. 246.
Crawford, Taney's Dec. (U. S.) 11, 26 Scott v. Hobe, 108 Wis. 239, 84
Fed. Gas. No. 5465. N. W. 181.
23 Mr. Frelinghuysen, Secretary of 2T Wheaton's Int. Law, Dana's ed.,
State, to Mr. de Struve, Eussian sec. 249.
§'§ 404, 405] AMBASSADORS AND CONSULS. 426
all rights and privileges necessary to the performance of the
consular office. Generally, a consul may claim for himself and
his office not only such rights and privileges as have been con-
ceded by treaty, but also such as have the sanction of custom and
local laws, and have been enjoyed by his predecessors or by con-
suls of other nations, unless a formal notice has been given that
they will not be extended to him." 28
§ 404. Violation of criminal laws. — If a foreign consul vio-
lates the criminal laws of the country in which he resides, he is
liable to be punished to the same extent as other foreign resi-
dents.29 While a consul may claim exemption from service on
juries and in the militia,30 yet American citizens holding foreign
consulates in the United States are not, by the law of nations,
exempt from jury duty or service in the militia.31
The consular regulations of the United States provides that the
privileges of a consul engaging in business in the country of his
official residence "are, under international law, more restricted,
especially if he is a subject or citizen of the foreign state. If
his exequatur has been granted without limitations, he may claim
the privileges and exemptions that are necessary to the per-
formance of the duties of his office; but in all that concerns his
personal status, or his status as a merchant, it is doubtful whether
he can claim any rights or privileges not conceded to other sub-
jects or citizens of the state. He should, however, claim the
same privileges and immunities that are granted to other- mer-
chant consuls in the same country. ' ' 32
§ 405. In eastern countries. — In countries non-Christian, the
right of extraterritoriality exists to a large degree. This is due
to the fact that these nations are not admitted to a full com-
munity of international law.33 "In non-Christian countries the
rights of extraterritoriality have been largely preserved, and
28 Consular Begulations of the 30 Consular Begulations of the
United States (1896), sec. 72, p. 27. United States (1896), sec. 73, p. 28.
31 Gushing, 8 Op. Atty. Gen. (1856)
29 Mr. Clayton, Secretary of State,
to Mr. Calderon de la Barca, Span- „' Consular Regulations of the
ish Minister, August 28, 1849, MS. United States (1896), sec. 74, p. 29.
Notes to Spain, VI, 187. m Gushing, 7 Op. Atty. Gen. 342.
42'
UNITED STATES COURT FOR CHINA.
[§ 406
have generally been confirmed by treaties to consular officers.
To a great degree they enjoy the immunities of diplomatic repre-
sentatives together with certain prerogatives of jurisdiction, the
right of worship, and, to some extent, the right of asylum. These
immunities extend to exemption from both the civil and criminal
jurisdiction of the country to which they are sent, and protect
their households and the effects covered by the consular residence.
Their personal property is exempt from taxation, though it may
be otherwise with real estate or movables not connected with the
consulate. Generally, they are exempt from all personal imposi-
tions that arise from the character or quality of a subject or citi-
zen of the country. ' ' 34
§ 406. United States court for China.— In 1906 a United
States court for China was created, with "exclusive jurisdiction
in all cases and judicial proceedings whereof jurisdiction may
now be exercised by United States consuls and ministers by law
and by virtue of treaties between the United States and China,"
except in so far as jurisdiction may be qualified by section 2 of
the act creating the court.35
34 Consular Eegulations of the
United States (1896), sec. 75, p. 29.
35 34 Stats, at Large, pt. 1, p.
814. Section 2 of this act provides:
"The consuls of the United States
in the cities of China to which they
are respectively accredited shall
have the same jurisdiction as they
now possess in civil cases where the
sum or value of the property in-
volved in the controversy does not
exceed five hundred dollars United
States money and in criminal cases
where the punishment for the offense
charged cannot exceed by law one
hundred dollars' fine or sixty days'
imprisonment, or both, and shall
have power to arrest, examine, and
discharge accused persons or commit
them to the said court. From all
final judgments of the consular court
either party shall have the right to
appeal to the United States court
for China: Provided, also, That ap-
peal may be taken to the United
States court for China from any final
judgment of the consular courts of
the United States in Korea so long
as the rights of extraterritoriality
shall obtain in favor of the United
States. The said United States
court for China shall have and ex-
ercise supervisory control over the
discharge by consuls and vice-con-
suls of the duties prescribed by the
laws of the United States relating
to the estates of decedents in China.
Within sixty days after the death
in China of any citizen of the United
States, or any citizen of any ter-
ritory belonging to the United
States, the consul or vice-consul
whose duty it becomes to take pos-
session of the effects of such de-
ceased person under the laws of the
United States shall file with the
§ 407]
AMBASSADORS AND CONSULS.
428
It is provided that the jurisdiction of this court, "both original
and on appeal, in civil and criminal matters and also the jurisdic-
tion of the consular courts in China, shall in all cases be exercised
in conformity with said treaties and the laws of the United States
now in force in reference to the American consular courts in
China, and all judgments and decisions of said consular courts,
and all decisions, judgments, and decrees of the United States
court, shall be enforced in accordance with said treaties and laws.
But in all such cases when such laws are deficient in the provi-
sions necessary to give jurisdiction or to furnish suitable reme-
dies, the common law and the law as established by the decisions
of the courts of the United States shall be applied by said court
in its decisions, and shall govern the same subject to the terms
of any treaties between the United States and China. ' ' 36
§ 407. What law to prevail. — By treaties with China, the
United States obtained extraterritorial jurisdiction in civil con-
troversies between American citizens residing in China, as to any
clerk of said court a sworn inven-
tory of such effects, and shall as ad-
ditional effects come from time to
time into his possession immediately
file a supplemental inventory or in-
ventories of the same. He shall also
fie with the clerk of said court with-
in sixty days a schedule under oath
of the debts of said decedent, so far
as known, and a schedule or state-
ment of all additional debts there-
after discovered. Such consul or
vice-consul shall pay no claims
against the estate without the writ-
ten approval of the judge of said
court, nor shall he make sale of
any of the assets of said estate
without first reporting the same to
said judge and obtaining a written
approval of said sale, and he shall
likewise within ten days after any
such sale report the fact of such
sale to said court, and the amount
derived therefrom. The said judge
shall have power to require at any
time reports from consuls or vice-
consuls in respect to all their acts
and doings relating to the estate of
any such deceased person. The said
court shall have power to require
where it may be necessary a special
bond for the faithful performance
of his duty to be given by any con-
sul or vice-consul into whose pos-
session the estate of any such de-
ceased citizen shall have come in
such amount and with such sureties
as may be deemed necessary, and for
failure to give such bond when re-
quired, or for failure to properly
perform his duties in the premises,
the court may appoint some other
person to take charge of said estate,
such person having first given bond
as aforesaid. A record shall be kept
by the clerk of said court of all pro-
ceedings in respect to any such es-
tate under the provisions hereof."
"e 34 Stats, at Large, pt. 1, p. 814,
sec. 4.
429 OBJECT OF THIS COURT. [§§ 408, 409
crime committed there by them. At the time that the act creat-
ing the court for China was enacted, the jurisdiction of con-
sular courts was defined by the Revised Statutes in the following
terms: "Jurisdiction in both civil and criminal matters shall, in
all cases, be exercised and enforced in conformity with the laws
of the United States, which are hereby, so far as is necessary to
execute such treaties, respectively, and so far as they are suitable
to carry the same into effect, extended over all citizens of the
United States in those countries, and over all others to the extent
that the terms of the treaties, respectively, justify or require.
But in all cases where such laws are not adapted to the object, or
are deficient in the provisions necessary to furnish suitable reme-
dies, the common law and the law of equity and admiralty shall
be extended in like manner over such citizens and others in those
countries. ' ' 3T
§ 408. Object of this court. — In a recent case decided by the
United States circuit court of appeals for the ninth circuit, it
was stated that in creating this court, the object of the treaty and
the intention of Congress, in so far as its criminal jurisdiction is
concerned, was "to throw around American citizens residing or
sojourning in China, and there charged with crime, the bene-
ficient principles of the laws of the United States relating to the
: trial of persons charged with crimes — the rules of evidence, the
| presumption of innocence, the degree of proof necessary to con-
vict, the right of the accused to be confronted with witnesses
against him, exemption from being compelled to criminate him-
self, etc. But while securing to them these privileges, the statute
at the same time made them subject to punishment for acts made
criminal by any law of the United States, or for acts recognized
as crimes under the common law. ' ' 38
§ 409. Common law in force. — In that case the court had oc-
casion to consider the date at which the common law in existence
should be considered as the common law binding the court, and
reached the conclusion that Congress had reference to the com-
mon law in force in the several American colonies at the date of
the separation from the mother country, including not only the
ST Eev. Stats., sec. 4086.
38 Biddle v. United States, 156 Fed. 759.
§ 410] AMBASSADORS AND CONSULS. 430
ancient common law, the lex non scripta, but also the statutes
which had before this date been passed for the purpose of amend-
ing or aiding the common law. The court adopted the language
of Judge Cooley : "The colonies also had legislatures of their own,
by which laws had been passed which were in force at the time of
the separation, and which remained unaffected thereby. When,
therefore, they emerged from the colonial condition into that of
independence, the laws which governed them consisted, first, of
the common law of England, so far as they had tacitly adopted it
as suited to their condition; second, of the statutes of England,
or of Great Britain, amendatory of the common law, which they
had in like manner adopted; and third, of the colonial statutes.
The first and second constituted the American common law, and
by this in great part are rights adjudged and wrongs redressed in
the American States to this day. ' ' 39
§ 410. Obtaining money under false pretenses. — A person was
convicted in this court of obtaining money under false pretenses,
and it was claimed on appeal that this act was not an offense at
common law, and was not made a crime by the laws of the United
States. The court said that this particular kind of cheating was
not criminal under the ancient common law, but was first so de-
clared in 1757 by statute.40 Congress has made it a crime in the
territory over which the United States exercises exclusive juris-
diction to obtain money under false pretenses.41 It is also pro-
vided: "That when any offense is committed in any place, juris-
diction over which has been retained by the United States or
ceded to it by a State, or which has been purchased with the con-
sent of a State for the erection of a fort, magazine, arsenal, dock-
yard, or other needful building or structure, the punishment for
which offense is not provided for by any law of the United States,
the person committing such offense shall, upon conviction in a
39 Cooley 'a Constitutional Limita- the laws thus taken with them,
tions, 25. It also quoted the Ian- whether in the mother country they
guage of Mr. Bishop: "The rule is were written or unwritten, are re-
familiar to the legal profession, that garded as unwritten, or common
colonists to an uninhabited country law." 1 Bishop's Criminal Law,
carry with them the laws of their sec. 155.
mother country, as far as applicable *° 30 Geo. II, c. 24; 2 Bishop's
to their new situation and circum- Crim. Law, sec. 392; 19 Cyc. 387.
stances; and that, in their new home, ** 31 Stats, at Large, 1326, 1327.
431 OBTAINING MONEY UNDER FALSE PRETENSES. [§ 410
circuit or district court of the United States for the district in
which the offense was committed, be liable to and receive the same
punishment as the laws of the State in which such place is. situated
now provide for the like offense when committed within the juris-
diction of such State, and the said courts are hereby vested with
jurisdiction for such purposes; and no subsequent repeal of any
such State law shall affect any such prosecution. " 42 At the
time that the act referred to was passed, most of the states of
the Union made it a crime to obtain money or goods by false pre-
tenses, and hence, in all places in such states over which the
United States exercises exclusive jurisdiction, this act would, if
there committed, be a crime against the United States. The
court said that in view of these statutes its conclusion was that
"obtaining money or goods under false pretenses is an offense
against the laws of the United States, within the meaning of the
statute conferring jurisdiction upon the United States Court for
China, and that an American citizen guilty of the commission of
such an act in China is subject to trial and punishment therefor
by that court. ' '43 But the court held that the false representation
alleged as constituting the false pretense must be of some past or
existing fact. A representation of an act to occur in the future
is not sufficient.
43 30 Stats, at Large, 717. See, of October, 1906, in Shanghai, China,
also, Eev. Stats., sec. 5391. For an unlawfully and knowingly did
i application of this provision, see falsely pretend to Woo Ah Sung,
Sharon v. Hill, 24 Fed. 731; United Zung Yu Young, Ng Sih Yiek and
; States v. Wright, Fed. Gas. No. Sz Yung, that the municipal authori-
16,774; United States v. Pridgeon, ties of the International Settlement
153 U. S. 48, 14 Sup. Ct. Eep. 746, of Shanghai, China, would allow
38 L. ed. 631. and permit in the building known
43 Biddle v. United States, supra. as Nos. 4 and 5 Mohawk Eoad,
While this decision clearly states the Shanghai, China, .... Chinese
jurisdiction of the court and de- gambling games to be played dur-
i fines the common law which prevails, ing the Autumn Kace Meeting of
I the court held that the information 1906, in Shanghai, China, which pre-
upon which the defendant was con- tenses were false as the said C. A.
victed did not state facts sufficient Biddle then and there well knew,
to constitute the offense of obtain- and by said false pretenses the said
f ing money under false pretenses. C. A. Biddle, with intent to defraud,
< On this point it said: "The infor- unlawfully did obtain from the said
mation, so far as is necessary to be Woo Ah Sung, Zung Yu Dong, Ng
v here set out, charges that the de- Sih Yiek and Sz Yung the sum of
t fendant 'on or about the 31st day Tls. 3000.00 Shanghai Sycee as rent
§ 411]
AMBASSADORS AND CONSULS.
432
§ 411. Suits against consuls. — Under the Constitution of the
United States the supreme court possesses original jurisdiction
for the said premises to be used for
the said gambling games. ' '
It will be noticed that the alleged
false pretenses relate wholly to some
future action of the municipal au-
thorities of the International Settle-
ment of Shanghai, in permitting
Chinese gambling to be played dur-
ing the Autumn Race Meeting of
1906, in Shanghai. There is no aver-
ment that defendant made any false
representation as to any existing
fact, or past fact, and without such
an averment the charge of obtaining
money under false pretenses cannot
be sustained. In order to constitute
the crime of obtaining money under
false pretenses, the alleged false
representation must be of some past
or existing fact. Says Mr. Bishop,
section 401, volume 2, in his work
on Criminal Law, third edition:
''Both in the nature of things, and
in actual adjudication, the doctrine
is, that no representation of a future
event, whether in the form of a
promise or not, can be a pretense,
within the statute; for the pretense
must relate either to the past or the
present. ' '
This statement is well sustained
by decided cases. People v. Miller,
169 N. Y. 339, 88 Am. St. Eep. 546,
62 N. E. 418; Cook v. State, 71 Neb.
243, 98 N. W. 810. Our attention
has not been called to any case
which holds to the contrary. People
v. Wasservogel, 77 Cal. 173, 19 Pac.
270, which is cited by the learned
attorney for the United States, is in
harmony with the rule as we have
stated it. In that case the defend-
ant obtained money upon a draft
drawn by him, he falsely stating at
the time that he had credit with
the firm upon which it was drawn,
tor the amount of the draft, and
that the draft would be honored.
In that case, it will be perceived,
there was the false representation
of an existing fact, and the court, in
its decision upholding the conviction
in that case, said: "It is true that
to come within the statute, a repre-
sentation must be of some fact, past
or present; but the statement of the
defendant that he had credit with
the firm named for the amount of
the draft, and that the firm would
honor the draft, when he knew that
he had no credit with the firm, and
that the draft would not be honored
or paid, was sufficient. "
Passing from the information to a
consideration of the evidence: It
was wholly insufficient to justify the
conviction of defendant. It appears
that on May 29, 1906, the defendant
in his own name, but in fact acting
for the Hotel Metropole Company,
Limited, entered into a contract
with the firm composed of the
Chinese named in the information,
whereby the defendant, "let dur-
ing the four days of the autumn
race meeting of 1906, the whole of
the second floor and verandah of the
building Nos. 4 and 5 Mohawk
Road, for the purpose of running
Chinese tables for the sum of taels
six thousand — Tls. 6,000— fifteen
hundred taels of which to be paid
on the signing of the contract by
the said Yik Che as bargain money,
the balance to be paid on or before
the first day of November, 1906.
This contract to be null and void
should the municipal authorities
prohibit the running of the said
building as a Chinese grand stand
433
SUITS AGAINST CONSULS.
§ 411
I in all cases affecting ambassadors and consuls.44 But while juris-
! diction thus exists, it is not exclusive, and Congress is not pro-
hibited from conferring jurisdiction upon subordinate courts of
! the United States.45 At one time, under the statutes of the
• United States, state courts had no jurisdiction in suits against
consuls.46 This was because the statutes made the jurisdiction
exclusive. This subject is more fully discussed in a succeeding
section.
during said race meeting and the
above mentioned fifteen hundred
taels bargain money be returned to
the said Yik Che. ' '
It is very clearly shown by the
evidence that when the payments
were made under this contract, the
parties knew that gambling was not
then permitted in Shanghai, and
would not be during the approach-
ing Autumn race meeting of 1906,
unless the municipal authorities
should in some manner remove the
prohibition. There was also some
evidence tending to show that the
council had refused, before the mak-
ing of the above lease, to give its
consent to the suspension of the or-
dinance against gambling in Shang-
hai, and that this fact was known
to the defendant and not communi-
cated by him to the lessees; and
that he and others were endeavoring
to get the council to recede from its
position against gambling, during
the time the several payments were
made under this lease; but there was
no evidence that defendant ever
made any expense or implied repre-
sentation that the ordinance against
gambling had been repealed or sus-
pended; there was no false repre-
sentation of any existing fact. ' '
Holding this view, the court reversed
the judgment, with directions to dis-
charge the defendant.
Treaties — 28
In another case appealed from the
same court the appellate tribunal
held that an unloaded pistol, when
there is no attempt to use it other-
wise than by pointing it in a
threatening manner at another, is
not a dangerous weapon. Price v.
United States, U. S. Cir. Ct. App.,
9th Circuit, November 5, 1907.
44 Const., art. Ill, sec. 2.
45 Gittings v. Crawford, Taney's
Dec. (U. S.) 11, Fed. Cas. No. 5465;
St. Luke's Hospital v. Barclay, 3
Blatchf. (U. S.) 259, Fed. Cas. No.
12,241; Graham v. Stucken, 4
Blatchf. (U. S.) 50, Fed. Cas. No.
5677; Bors v. Preston, 111 U. S. 252,
4 Sup. Ct. Eep. 407, 28 L. ed. 419.
46 McKay v. Garcia, 6 Ben. (U. S.)
556, Fed. Cas. No. 8844; Sartori v.
Hamilton, 13 N. J. L. 107; Mann-
hardt v. Soderstrom, 1 Binn. (Pa.)
138; Valareno v. Thompson, 7 N. Y.
576; Griffin v. Dominguez, 2 Duer.
(N. Y.) 656; Commonwealth v.
Kosloff, 5 Serg. & K. (Pa.) 545;
Davis v. Packard, 7 Pet. (TJ. S.) 276,
8 L. ed. 684; Sagory v. Wisseman,
2 Ben. 240, Fed. Cas. No. 12,217;
Durand v. Halbach, 1 Miles (Pa.),
46; Naylor v. Hoffman, 22 How. Pr.
510; Dupont v. Pichon, 4 Dall. 321, 1
L. ed. 851; Miller v. Van Loben Sels,
66 Cal. 341, 5 Pac. 512.
§§ 412-414] AMBASSADORS AND CONSULS. 434
§ 412. Exemption under such statutes not waived by failure to
plead. — This exemption, when expressly conferred by statute, is
not a personal privilege, and is not waived if the defendant fail
to plead it, as he may take advantage of the exemption in the ap-
pellate court for the first time.47 "It is the privilege of the coun-
try or government which the consul represents. This is the light
in which foreign ministers are considered by the law of nations,
and our Constitution and law seem to put consuls on the same
footing in this respect. If the privilege or exemption was merely
personal, it can hardly be supposed that it would have been
thought a matter sufficiently important to require a special pro-
vision in the Constitution and laws of the United States. Higher
considerations of public policy doubtless led to the provision.
It was deemed fit and proper that the courts of the government,
with which rested the regulation of all foreign intercourse, should
have cognizance of suits against the representatives of such for-
eign governments. ' ' 48 But a consul may sue in a state court.49
§ 413. Reclamation assessment. — The statute of California per-
mits a reclamation district to commence a suit to determine the
validity of an assessment levied for the reclamation of swamp
lands. This action is not an action in personam, and while it is
not strictly a proceeding in rem, it partakes of its nature. Its
purpose is to test the legality of the assessment and to enable
the owner to present his objections to its validity at a hearing in
advance of an action upon the assessment. It is a process of law,
and constitutes one of the means by which the lien upon the prop-
erty in the district is established. A defendant who owns prop-
erty in the district and who is a foreign consul cannot, in such a
proceeding, plead his consular privilege in bar.50
§ 414. Concurrent jurisdiction with state courts. — The courts
of the United States originally had exclusive jurisdiction of all
suits or proceedings against consuls, but while Congress has the
47 Miller v. Van Loben Sels, 66 4!) Sagory v. Wissman, 2 Ben. (U.
Cal. 341, 5 Pac. 512; Valareno v. S.) 240, Fed. Gas. No. 12,217.
Thompson, 7 N. Y. 576; Davis v. M Eeclamation District No. 551 v.
Packard, 7 Pet. 276, 8 L. ed. 684. Bunyon, 117 Cal. 164, 49 Pac. 131.
48 Davis v. Packard, 7 Pet. 276,
8 L. ed. 684.
435 CONCURRENT JURISDICTION WITH STATE COURTS. [§ 414
power to declare that such jurisdiction shall be exclusive, it may
also declare the extent to which the state courts may exercise con-
current jurisdiction, as also at what stage of the proceedings the
jurisdiction of the federal courts may attach in cases originally in-
stituted in the state courts. In the section of the Revised Stat-
utes as originally enacted the jurisdiction vested in the courts of
the United States in all suits or proceedings against ambassadors,
or other public ministers, or against consuls or vice-consuls, was
made exclusive. But by the amendment of 1875 this particular
subdivision was stricken out, and since that date no express
declaration has been made in the statutes of the United States
that the jurisdiction of the federal courts against a consul is ex-
clusive of the state courts. By this amendment, "removing from
the statutes the express provision that the jurisdiction of the
federal courts in suits or proceedings against consuls should be
exclusive of the courts of the several states," Songress must have
intended to declare that such jurisdiction should no longer be ex-
clusive, unless it is made exclusive either by the Constitution it-
self or by other existing legislation. There is, however, as above
seen, no express declaration by Congress that such jurisdiction is
exclusive, but it must be conceded that a consul who has been
recognized by the President and admitted to the exercise of his
official functions shall not, so long as he continues in the exercise
I of those functions, be deprived of the benefits of the provision in
the Constitution extending the judicial power of the United
; States to all cases in which he is affected, and that unless there
is some law by which he may invoke this judicial power for the
purpose either of removing the cause into the courts of the United
States before judgment, or to review the judgment of the state
court, a state court can have no jurisdiction to entertain an ac-
tion in which he is a defendant. Under this provision of the Con-
stitution he is entitled to invoke the exercise of that power in any
case to which he may be a party, and, if Congress has made any
provision by which he can avail himself of this right, he is amply
protected in the enjoyment of this provision of the Constitution.
The Constitution does not declare that he shall be exempt from
the jurisdiction of the state courts, but that the judicial power of
the United States shall extend to all cases affecting him. It is
for Congress to determine the mode and time at which he may
invoke this jurisdiction, and if that body has provided a means
§§ 415-417] AMBASSADORS AND CONSULS. 436
by which he can avail himself of this judicial power, he is not de-
prived of any right given him by the Constitution. ' ' 51
§ 415. Right may be waived. — Under this view allowing con-
current jurisdiction a consul sued in a state court, in addition to
any defense he possesses to the cause of action, may claim his
right under the Constitution to have the matter determined by
the courts of the United States, and in case judgment is rendered
against him, he can have the judgment reviewed by the supreme
court of the United States.52 But he may waive this right either
by merely pleading his defense to the cause of action without in-
voking this provision of the Constitution, or by suffering default,
and if he so waives it, he cannot, after the rendition of judgment
against him, claim the right to review the judgment under a writ
of error to the supreme court of the United States.53
§ 416. Compulsory attendance of consuls as witnesses. — In cer-
tain conventions with foreign powers consuls are exempt from
the obligation of appearing as witnesses. In 1854 an indictment
was found in the district court of the United States against the
Mexican consul at San Francisco for a violation of the neutrality
act in enlisting or hiring persons to enlist as soldiers in the ser-
vice of Mexico. M. Dillon, the French consul at San Francisco,
one of the witnesses for the defense, was served with a subpoena
duces tecum, but when the witnesses were called in court he
was not present. The return upon the subpoena showed that it
had been served, and the counsel for the defendant asked that an
attachment issue against the absent consul, which was done and
the consul was brought into court.
§ 417. Consular convention with France. — By the second arti-
cle of the consular convention between the United States and
France of February 23, 1853, it was provided that consuls should
never be compelled to appear as witnesses before the courts, but
51 Wilcox v. Luco, 118 Gal. 639, 605, 21 S. E. 582; In re lasigi, 79
62 Am. St. Kep. 305, 50 Pac. 758, Fed. 751.
45 L. E. A. 579. See, also, Bors v. 52 Wilcox v. Luco, 118 Cal. 639, 62
Preston, 111 U. S. 261, 4 Sup. Ct. Am. St. Eep. 305, 50 Pac. 758, 45
Eep. 407, 28 L. ed. 419; De Give v. L. E. A. 579.
Grand Eapids Furniture Co., 94 Ga. 53 Wilcox v. Luco, supra.
437 SIXTH AMENDMENT TO CONSTITUTION. [§§ 418, 419
that in cases where their testimony is desired, they shall be invited
in writing to appear in court and give it, and if they are not able
to do this, a request shall be made that they give it in writing, or
that it be taken orally at their residence. By the third article
of this convention it is provided that the consular offices and
dwellings shall be inviolable, and that under no pretext shall the
local authorities invade them, or examine or seize the papers that
may be deposited in them. It was stated by M. Dillon that the
paper which it was sought to have him bring with him must, if
it existed, have been a part of the archives of his consulate.
§ 418. Sixth amendment to Constitution. — The sixth amend-
ment to the Constitution of the United States provides that in
all criminal prosecutions the accused shall enjoy the right to
have compulsory process for obtaining witnesses in his favor.
It was contended by the accused that this right is sacred, and
secured to him by the Constitution of the United States; that
it is comprehensive and without exception, and that neither by
the provisions of any law or of any treaty can he be deprived
of the right of compelling the attendance of any person whose
testimony may be material to his defense. It was admitted by
the counsel for the French consul that if the Constitution se-
cured this right to the accused, no treaty could deprive him of
it, and that if the court was called upon to decide between allow-
ing a constitutional right to a prisoner and disregarding a treaty
stipulation, or denying the constitutional right and observing the
treaty, its highest allegiance was to the Constitution. The court
held, however, that this provision of the Constitution did not au-
thorize the issuance of such process to ambassadors, who, by public
law, were not amenable to the laws of the country to which they were
accredited, or to consuls, who, when a treaty expressly so stipulated,
were likewise not amenable to the process of the courts. The
court also held, that where a person sought a subpoena duces tecum,
it was the duty of the court to require him to show that the docu-
ment desired was not an official paper which the law protected
from examination and signature.54
§ 419. Diplomatic action. — In addition to the controversy in
court, the incident became the subject of diplomatic considera-
M In re Dillon, 7 Saw. 561, 7 Fed. Gas. No. 3914.
§ 420] AMBASSADORS AND CONSULS. 438
tion. The French consul took down the consular flag on the ser-
vice of the attachment, and the French Minister at Washington
protested that the acts of the authorities constituted a gross dis-
respect to France, which considered the issuance of the attach-
ment not only as a violation of the terms of the treaty, but also
as a breach of international law, and that the subsequent dis-
charge of the consul did not atone for this disrespect. The
French Minister contended also that the duces tecum clause in
the subpoena involved a violation of the archives of the consulate.
Mr. Marcy, who was Secretary of State, insisted that the pro-
visions of the Constitution of the United States assuring to the
accused an opportunity to meet the witnesses produced against
him was superior to any treaty in conflict with it, except in cases
where such treaties contain exceptions to this right, which were
recognized as such at the time of the adoption of the Constitu-
tion.
§ 420. Distinction as witnesses between ambassadors and con-
suls.— When the Constitution became effective, Mr. Marcy con-
tended, compulsory process could not be served on ambassadors
and ministers to appear as witnesses, and the clause in the Consti-
tution, he said, did not give to the defendant in criminal prosecu-
tions the right to compel their attendance in court. But this
privilege as to ambassadors did not, Mr. Marcy argued, apply
to consuls, who could only procure the privilege when given to
them by treaty. A treaty, however, he maintained, in criminal
cases was subject to the limitations of the Constitution of the
United States. He offered, in a letter addressed to the American
Minister to France, to compromise the controversy by a salute
to the French flag upon a French warship then anchored in the
bay of San Francisco, but the French Minister at Washington
asked also that when the consular flag was rehoisted at San
Francisco a salute should be paid to it. This Mr. Marcy declined
to do, and finally the French government signified its willingness
to accept as a sufficient satisfaction an expression of regret on the
part of the United States, and that whenever a French national
ship or squadron should appear in the bay of San Francisco
"the United States authorities there, military or naval, will
salute the national flag borne by such ship or squadron with a
national salute, at an hour to be specified and agreed on with
439 GOOD EXCUSE TO BE SHOWN. [§§ 421, 422
the French naval commanding officer present, and the French
ship or squadron whose flag is thus saluted will return the salute
gun for gun. ' ' 55
§ 421. Good excuse to be shown. — The consular convention
with France of 1853, while it provided that consuls should not
be forced to appear as witnesses before the courts, yet made it
their duty, if they are invited in writing to appear and testify,
to do so unless they are unable to comply with the request. Mr.
Marcy said that this duty would be violated where a consul re-
fused to appear without a good and substantial excuse. ' l Neither
his official character, his disinclination, nor any slight personal
inconvenience constitutes such an excuse. The pressure and
importance of official duties requiring immediate performance
may prevent his attendance in court, but such can very rarely
be the case where the court sits at the place of his residence.
It is not claimed that the court can entertain the question of the
competency of his excuse for declining to comply with its invita-
tion ; but where the government of the United States has fair
grounds to question the good faith with which the consul avails
himself of the provision of the convention which exempts from
compulsory process, it has two modes of redress, and it can take
either at its option. It can appeal to the consul's government
to inquire into the case in this respect, and to deal with him as
it shall find his conduct deserves; or it can revoke his exequa-
tur."56
§ 422. Subpoena in behalf of prosecution. — An indictment was
filed charging the defendant with having fitted out and with arming
a vessel to be employed in the service of insurgents against the
government of Chile. The counsel for the United States caused
a subpoena to be served upon the vice-consul to appear as a
55 Mr. Marcy, Secretary of State, effect of the constitutional amend-
to Mr. Mason, Minister to France, ment was not accepted by the
May 30, 1854, June 8, 1854, July 14, French government. Mr. Fish, Sec-
1854, September 11, 1854, December retary of State, to Mr. Bassett,
13, 1854, January 18, 1855, M. S. October 18, 1872, M. S. Hayti, I, 267.
Inst. France, XV, 192, 198, 202, 210, 56 Mr. Marcy, Secretary of State,
241, 249. Annual message of Presi- to Mr. de Trangiere, Portuguese
dent Pierce, December 4, 1854. The charge d 'affairs, March 27, 1855
contention of Mr. Marcy as to the Notes to Portugal, VI, # 145.
§ 423] AMBASSADORS AND CONSULS. 440
witness. He appeared in obedience to the subpoena, and pre-
sented his exequatur recognizing him as the duly appointed vice-
consul of Chile at San Francisco, and also the consular instruc-
tions of his own government, prohibiting him without authoriza-
tion from the Minister of Foreign Affairs, or the respective lega-
tions, from making public the correspondence which he held
with the government, or information which he might receive while
exercising his charge. These instructions required consuls to
demand the privileges and exemptions which may appertain to
them by virtue of treaties or conventions entered into between
Chile and the nation to which they may be accredited, and if
there should be no treaty, to demand the privileges and exemp-
tions which are generally accorded in the country of their resi-
dence to consuls of other nations. They were required to demand,
as essential to the exercise of their office, the inviolability of their
archives and documents, and freedom in all that they might do
in their capacity of consuls. The demand of the vice-consul to
be relieved from further attendance as a witness was based upon
the ground that his privileges as vice-consul exempted him from
compulsory process to attend as a witness in any court of the
United States, and also that the circumstances of the case before
the court rendered it improper that he should be required to at-
tend as a witness on the part of the prosecution.
§ 423. Contention of the government. — It was contended by
the United States that the privileges asserted by the vice-consul
did not exist, and that upon the overthrow of the government
by which he was accredited, his office ceased. On this point
the court ruled that the recognition of representatives of foreign
countries is a matter for the executive department of the govern-
ment, whose action must be accepted by the judicial depart-
ment, but accepting him as the duly authorized and acting con-
sul of the Chilean government, the court asked: "Does his posi-
tion as such, of itself, entitle him to exemption from compulsory
process to attend as a witness in the courts of the United States ? ' '
It stated that by the laws of nations, consuls and vice-consuls
stand on a different footing from ambassadors and ministers.
It examined the case of Dillon,57 and said that the provision of
67 7 Saw. 561, Fed. Gas. No. 3914.
441 INSURGENT GOVERNMENT BECOMING ESTABLISHED. [§§ 424-426
the Constitution invoked in that case was not involved, because
the vice-consul of Chile was not subpoenaed as a witness for the
defendants, but on behalf of the prosecution, and that as he was
entitled to the same privileges and immunities as are granted to
the consuls of France, it would seem to follow that he was ex-
empt from compulsory process to attend as a witness.
§ 424. Insurgent government becoming established. — But the
court said there was another reason why his attendance should not
be compelled. The defendants were charged with a violation of
the neutrality laws of the United States, and their offense con-
sisted in giving aid to those who, at the time the matter was be-
fore the court, constituted the established and recognized govern-
ment. As they had succeeded and become recognized, the acts of
that government from the commencement of its existence should
be upheld as those of an independent nation. "To require the
representative of that government," said the court, "to appear
and give testimony against those alleged to have aided its estab-
lishment would not only be contrary to the principle upon which
neutrality laws are based, but would strongly tend to give grave
offense to the government now recognized by the United States,
and with which this government, happily, is at peace. ' ' 58
§ 425. Subpoena by a state court. — The Danish vice-consul at
New York refused to obey a subpoena duces tecum issued by a
state court, and in reply to a complaint Mr. Olney referred to the
tenth article of the consular convention between the United States
and Denmark, declaring that the archives of consulates are in-
violable, and that a magistrate has no right under any pretext to
seize or interfere with them, and said: "A state court has no
jurisdiction of writs against a foreign consul, such jurisdiction
being specifically reserved to the federal courts. ' ' 59
§ 426. Archives privileged. — All documents which form a part
of the archives of a foreign consulate are privileged. A witness,
therefore, cannot be compelled to disclose their contents. The
58 United States v. Trumbull, 48 ber 13, 1896, 213, MS. Dom. Let. 673.
Fed. 94. See U. S. Eev. Stats., sees. 563, 687,
39 Mr. Olney, Secretary of State, 688, 711.
to Messrs. Martin & Weil, Novem-
§§ 427, 428] AMBASSADORS AND CONSULS. 442
privilege is that of the government and not of the witness. A
circuit court of the United States of one district, issuing a sub-
poena by which a witness has been brought before an examiner to
testify in a suit that is pending in another district, has authority
to strike out from the testimony given by him anything violative
of the privilege of a foreign government in disclosing the con-
tents of documents belonging to the records of its consulate,
where this privilege was claimed and sustained after the witness
had, through inadvertence in some of his answers, violated the
privilege.60
§ 427. American consuls as witnesses. — Some cases have oc-
curred where American consuls abroad have been subpoenaed to
testify under conditions not in compliance with consular conven-
tions. In one instance, Mr. Guenther, consul-general of the
United States at Frankfort-on-the-Main, received a subpoena con-
taining this clause: "Witnesses who do not appear without suf-
ficient excuse are to be sentenced, according to paragraph 50 of
the Penal Code, to pay the costs occasioned by such nonappear-
ance, also to a fine not to exceed 300 marks ; and if this is not paid,
to imprisonment not to exceed six weeks — producing them by
arrest is also admissible." The consul-general indicated in a
note to the court his willingness to testify in case a proper re-
quest was made, but protested against the language used in
the subpoena, threatening him in case he failed to appear with
fine and imprisonment and eventual arrest.
§ 428. Instructions of Department of State. — The correspond-
ence on the subject was forwarded to the Department of State,
which instructed the American Embassy at Berlin that it appeared
that the consular convention did not stipulate for an exemption
from summons, and hence it could not be claimed unless it
should be ascertained that the consul-general was entitled to it
under the most favored nation clause. But it was also said that
as by the third article of the convention the consul-general, who
was not a German subject, enjoyed "personal immunity from
arrest or imprisonment except in case of crime," it appeared
that the threat of fine, arrest and imprisonment was not only
gratuitous, but that it showed a lack of respect due from one
60 Kessler v. Best, 121 Fed. 439.
443 OTHER INSTANCES. [§ 429
friendly government to the consular officer of another, and that
if it should have been carried into execution, would have consti-
tuted a flagrant violation of the treaty. He was required by the
subpoena to testify "from papers to be shown" whether a certain
person was an American citizen. This, the Department of State
said, evidently referred to those belonging to the consular
archives, and seemed to violate the article of the convention
which declares that such archives should be inviolable. The
German court, in reply to the protest of the consul-general, sent
him a polite letter, in which he was requested to appear and give
his testimony, adding that the summons was, through error, made
out in the usual form. He complied with this request, testified, the
officials verbally apologized, stating that they had not known
of the consular convention, and the Department of State ex-
pressed its gratification "with the satisfactory termination of the
incident. ' ' 61
§ 429. Other instances. — Questions were, in 1899, addressed
to Mr. Clancy, the consular agent of the United States at Blue-
fields, by Colonel Torres, who was conducting a military court of
inquiry relative to the revolutionary uprising during the month
preceding. These questions related to the action of the consular
agent in issuing at the commencement of the uprising a warning
to Americans to preserve a strict neutrality, and also as to his
attitude and that of an American war vessel toward the revolu-
tionary authorities, and as to the action of several Americans.
These questions Mr. Clancy refused to answer without the per-
mission of his official superiors. The treaty between the United
States and Nicaragua then in force provided that the diplomatic
agents of the United States should enjoy, according to the strict-
est reciprocity, the same privileges, exemptions, and immunities
61 For. Eel. 1899, 302, 305. Mr. process, either by arresting him out-
Hay, Secretary of State, in a note side of his dwelling and office or in-
to Mr. White, American Ambassador side thereof; or if it is not sought
to Germany, said: "While Mr. to arrest him outside, virtually im-
Guenther's [American consul-gen- prison him within by making it im-
eral] office and dwelling are in- possible for him to go out without
violable, he is threatened with ar- being subject to arrest and imprison-
rest and imprisonment outside, or by ment. ' ' March 6, 1899, For. Rel.
virtual imprisonment inside, his office 1899, 302.
and dwelling, if he fails to obey the
§§ 430, 431] AMBASSADORS AND CONSULS. 444
granted to the diplomatic agents and consuls of the most favored
nations.
§ 430. Instructions of Mr. Hay, Secretary of State.— Mr. Hay
instructed Mr. Sorsby, the United States consul at San Juan
del Norte, who reported the facts, to determine what immunities,
exemptions, and privileges are accorded by Nicaragua by treaty
with Spain, Great Britain, or any other nation, to the consuls of
such nation; and to claim for Mr. Clancy whatever exemption,
privilege, and immunity may be accorded to such consuls.
Mr. Hay stated that as a general rule of international law,
in the absence of treaty stipulation, consuls are not, as such and in
general, entitled to all immunities which attach to a diplomatic
representative. But he added: "The consular archives are, how-
ever, inviolable under all circumstances. They can neither be in-
vaded nor searched, nor seized by the officers of justice or other
authority; but the personal books and papers of the consul are
not entitled to such immunity. He cannot be required to divulge
information which came to him in his official capacity, for that is
the exclusive property of his government ; but as to matters which
come within his knowledge or observation in his mere capacity as
an individual, he is not privileged from testifying as a witness."
§ 431. Facts within personal knowledge of consul. — Mr. Hay,
in denning the rights and obligations of a consul, declared that
if a consul should himself take part in the commission of crime,
or in inciting an insurrection, or should observe others doing so,
against the government to which he was accredited, he could not
be shielded from giving evidence, according to the forms of the
local law, as to the facts acquired by him in this manner, and
within his personal knowledge. "On the one hand," he said,
"he is entitled to enjoy all the privileges necessary to enable
him to discharge the duties of his office ; on the other hand, he is
not to refuse to testify, under the circumstances and limitations
above stated, simply because the facts to which he is required
to testify might be of a political character, or simply because his
testimony might have a tendency to implicate American citizens
or others in the commission of unlawful acts. ' ' 62
M For. Eel. 1899, 566-568.
445 EVIDENCE BEFORE COURTS- MARTIAL. [§§ 432-434
§ 432. Evidence before courts-martial. — Mr. Merry, American
Minister to Nicaragua, stated in the case mentioned that he had
arrived at the conclusion that such evidence could not properly
be given before a court-martial, and that the English vice-consul
took the same ground, and refused to testify. The matter was
dropped without seeking further to compel the consular agent to
testify, and, according to Mr. Merry, "the precedent is now
established that before courts-martial in Central America min-
isters and consular officers need not testify — a position which I
respectfully suggest may be of importance hereafter. ' ' 63
§ 433. Information received in official capacity. — Where it was
sought to subpoena a consul-general to testify as to statements
made to him, the Department of State said that he received the
information in his official capacity, and communicated such in-
formation to the Department, thus making it a part of the records
of the consulate, and therefore the Department could not author-
ize him to testify, because whatever knowledge he might possess
was official and privileged, concerning only his relation to his
own government.64
§ 434. International law part of the law of United States. —
International law is a part of the law of the United States, and
as often as cases arise depending upon the principles of inter-
national law for their determination, courts of appropriate
jurisdiction must ascertain and administer it. If there be no
treaty on the subject, and if there appear to be no controlling ex-
ecutive or legislative act or judicial decision, the court must
consider the customs and usages of civilized nations, and may
consult as evidence of these the works of jurists and commenta-
tors, not for the opinions that may be expressed by them as to
• what should be the law, but as reliably stating what the law
i actually is.65 As said by Chancellor Kent: "In the absence of
.
33 Mr. Merry to Mr. Hay, May 9, i5 The Paquete Habana, 175 TJ. S.
1899, For. Eel. 583; For Eel. 1899, 677, 20 Sup. Ct. Eep. 290, 44 L. ed.
563, 567, 568. 320; Hilton v. Guyot, 159 U. S. 113,
64 Mr. Eockhill, Third Assistant 16 Sup. Ct. Eep. 139, 40 L. ed. 95;
Secretary of State, to Mr. Mason, United States v. La Jeune Eugenie,
Tr. S. Consul, July 31, 1894, For. Eel. 26 Fed. Cas. No. 15,551, 2 Mason
1899, 304. 409.
§ 435] AMBASSADORS AND CONSULS. 446
higher and more authoritative sanctions, the ordinances of foreign
states, the opinions of eminent statesmen, and the writings of
distinguished jurists are regarded as of great consideration on
questions not settled by conventional law. In cases where the
principal jurists agree, the presumption will be very great in
favor of the solidity of their maxims; and no civilized nation
that does not arrogantly set all ordinary law and justice at defi-
ance will venture to disregard the uniform sense of the estab-
lished writers on international law. ' ' 66 Speaking of text-writers
of authority on international law, Mr. Wheaton observes: "They
are witnesses of the sentiments and usages of civilized nations,
and the weight of their testimony increases every time that their
authority is invoked by statesmen, and every year that passes
without the rules laid down in their works being impugned by the
avowal of contrary principles. ' ' 6T
§ 435. Reciprocity in foreign judgments. — In many of the
states of the Union provision is made by statute or code of pro-
cedure as to the effect of foreign judgments. But where no
such provision is made, the question must be solved by the prin-
ciples of international law, and where the matter is not regulated
by treaty, the effect to be given to foreign judgment is a matter
of comity.68 A foreign judgment can have no extraterritorial
force, but civilized nations have, for their convenience, established
a usage, through which final judgments of foreign courts of com-
petent jurisdiction are recognized and allowed to have an effect
under regulations and restrictions which vary in different coun-
tries.69 A judgment in rem is universally treated as valid.70 So
C6 1 Kent's Commentaries, 18. champs, 1 Ball. (Pa.) Ill, 1 L. ed.
CT Wheaton on International Law, 59.
sec. 15. See cases in which interna- M 2 Kent's Commentaries, 120.
tional law has been recognized as ro Wheaton on International Law,
part of our law: Rose v. Himely, 4 sees. 78, 79.
Cranch, 241, 2 L. ed. 608; Miller v. 70 Williams v. Armroyd, 7 Cranch,
United States, 11 Wall. 268, 20 L. 423, 3 L. ed. 392; Hudson v. Gues-
ed. 135; Young v. United States, 97 tier, 4 Cranch, 293, 2 L. ed. 625;
U. S. 39, 24 L. ed. 992; The Estrella, Ennis v. Smith, 14 How. (55 U. S.)
4 Wheat. 298, 4 L. ed. 574; Dow v. 400, 14 L. ed. 472; Wisconsin v. Peli-
Johnson, 100 U. S. 158, 25 L. ed. can Ins. Co., 127 U. S. 265, 8 Sup.
632; The Mereide, 9 Cranch, 388, 3 Ct. Eep. 1370, 32 L. ed. 239; Scott
L. ed. 769; Eespublica v. De Long- v. McNeal, 154 U. S. 34, 14 Sup.
447 FOREIGN JUDGMENTS IN PERSONAM. [§§ 436, 437
is a judgment by which the status of a person is affected ; as, for
instance, a decree by which a marriage is dissolved or confirmed.71
Judgments discharging obligations entered into in a foreign coun-
try between persons who were citizens or residents of such country
have been held conclusive of all matters determined by such judg-
ments.72
§ 436. Foreign judgments in personam. — As a general prop-
osition, it may be stated that foreign judgments for debts have
not been regarded as conclusive, but only as prima facie evidence
of the matters decided by them. It was said by Judge Story:
"The general doctrine maintained in the American courts in
relation to foreign judgments certainly is that they are prima
facie evidence, but that they are impeachable. But how far and
to what extent this doctrine is to be carried does not seem to be
definitely settled. It has been decided that the jurisdiction of
the court, and its power over the parties, and the things in con-
troversy may be inquired into; and that the judgment may be
impeached for fraud. Beyond this no definite lines have as yet
been drawn." 73
§ 437. Principle as declared by supreme court of the United
States. — The supreme court of the United States in 1894 was
called upon to determine what effect should be given in the
Ct. Eep. 1108, 38 L. ed. 896; Mon- 701, 4 Sup. Ct. Eep. 328, 28 L. ed.
roe v. Douglas, 4 Sand. Ch. 126; 298; Thompson v. Thompson, 91 Ala.
Holcomb v. Phelps, 16 Conn. 132; 595, 8 South. 419, 11 L. E. A. 445;
McKinsey v. Harding, 16 Fed. Gas. In re James, 99 Cal. 376, 37 Am. St.
(No. 8866) 227, 4 N. B. E. 38; The Eep. 62, 33 Pac. 1123; Peaslee v.
Trenton, 4 Fed. 657; Pelton v. Plat- Peaslee, 147 Mass. 180, 17 N. E. 510;
r.er, 13 Ohio, 217, 42 Am. Dec. 199; Thomas v. King, 95 Tenn. 70, 31 S.
Cushing v. Laird, 107 U. S. 80, 2 W. 985. But see in New York as
Sup. Ct. Eep. 196, 27 L. ed. 395; to divorce rendered against a resi-
The Parkhill, 18 Fed. Cas. (No. 10,- dent of that state without personal
755a) 1192; Alabama etc. E. E. Co. service, Williams v. Williams, 130
v. Jones, Fed. Cas. No. 127, 7 Bank. N. Y. 198, 27 Am. St. Eep. 519, 29
Beg. 171; Hilton v. Guyot, 159 U. S. N. E. 99, 14 L. E. A. 222; Both v.
167, 16 Sup. Ct. Eep. 145, 40 L. ed. Both, 104 111. 46, 44 Am. Eep. 84,
109; Pierce v. The Alberto, Hoff. 72 May v. Breed, 7 Cush. 15, 54
441, 19 Fed. Cas. (No. 11,142) 633; Am. Dec. 700.
Castrique v. Imrie, L. E. 4 H. L. 414. 73 Story on Conflict of Laws, sec.
71 Cheely v. Clayton, 110 U. S. 608.
§ 438]
AMBASSADORS AND CONSULS.
448
United States to a judgment rendered in France for a sum of
money. In France, the rule is that no foreign judgment can be
executed without a review to the bottom — "au fond." Such
review may extend to the whole merits of the cause of action
on which the judgment is founded. Mr. Justice Gray, who de-
livered the opinion of the court, entered upon an exhaustive ex-
amination of the subject of foreign judgments, and reviewed the
practice in the various countries of the world as to the effect
given by them to foreign judgments, and announced as the con-
clusion of the court that the reasonable, if not the necessary,
result of the decisions, was that judgments rendered in France or
in any other foreign country, by the laws of which judgments of
the American courts are reviewable upon the merits, are not
entitled to full credit and conclusive effect when suit is brought
upon them in the country, but are to be considered only as prima
facie evidence of the justice of the claim of plaintiff.74
§ 438. International law founded upon mutuality. — Mr. Jus-
tice Gray, in the course of the opinion, said that in holding
such a judgment, for want of reciprocity, not to be conclusive of
74 Hilton v. Guyot, 159 U. S. 113,
16 Sup. Ct. Eep. 139, 40 L. eel. 95.
The court, per Mr. Justice Gray,
said: "When an action is brought
in a court of this country, by a citi-
zen of a foreign country against one
of our own citizens to recover a
sum of money adjudged by a court
of that country to be due from the
defendant to the plaintiff, and the
foreign judgment appears to have
been rendered by a competent court
having jurisdiction of the cause and
of the parties, and upon due allega-
tions and proofs and opportunity to
defend against them, and its pro-
ceedings are according to the course
of a civilized jurisprudence, and are
stated in a clear and formal record,
the judgment is prima facie evidence
at least of the truth of the matter
adjudged; and it should be held con-
clusive upon the merits tried in the
foreign court, unless some special
ground is shown for impeaching the
judgment, as by showing that it was
affected by fraud or prejudice, or
that by the principles of interna-
tional law and by the comity of our
own country it should not be given
full credit and effect."
Section 661 (new number, 723) of
the Code of Civil Procedure of the
German Empire, as amended in 1905,
provides:
"Judgment of execution is to be
had without examination of the
legality of the judgment (which is
being executed).
"Judgment of execution is to be
granted only after the judgment of
the foreign court has become final
according to the law governing th<
latter court. It is not to be grantee
when recognition of the judgment
prohibited by section 328."
449 DISSENTING VIEWS. [§ 439
the merits of the claim, the court did not proceed upon any
theory of retaliation upon one person by reason of injustice
done to another, ''but upon the broad ground that international
law is founded upon mutuality and reciprocity, and that by the
principles of international law recognized in most civilized na-
tions, and by the comity of our own country, which it is our
judicial duty to know and to declare, the judgment is not entitled
to be considered conclusive. By our law at the time of the
adoption of the Constitution a foreign judgment was considered
as prima facie evidence and as not conclusive. There is no statute
of the United States, and no treaty of the United States with
France or with any other nation which has changed that law or
has made any provision upon the subject. It is not to be sup-
posed that, if any statute or treaty had been or should be made,
it would recognize as conclusive the judgments of any country
which did not give like effect to our own judgments. In the
absence of treaty or statute, it appears to us equally unwarrant-
able to assume that the comity of the United States requires any-
thing more. ' ' 75
§ 439. Dissenting views. — Mr. Chief Justice Fuller did not
join in the opinion of the majority of the court as pronounced by
Mr. Justice Gray, but filed a dissenting opinion, in which he said
Section 328 is as follows: the same law which refers to Article
"The recognition of a judgment 13, Section 1, or from the provision
of a foreign court is prohibited: of Article 13, Section 2, or in the
(1) If the courts of the State to case of Article 9, Section 3, to the
which the foreign court belongs have prejudice of the wife of a foreigner
not jurisdiction according to German who has been declared dead. (4)
law. (2) If the defendant is a Ger- If the enforcement of the judgment
man and has not been made a party would violate good morals or the
in so far as process or summons was purpose of German law. (5) If re-
cot served upon him either in per- ciprocity be not guaranteed.77
son in the State of the trial court The provisions of section 5 do not
nor through the aid of German ju- forbid the recognition of the judg-
dicial process. (3) If the judgment, ment if the judgment concerns a
to the prejudice of a German party, claim which does not involve prop-
departs from the provisions of Article erty rights, and if according to Ger-
13, Sections 1-3, or of Articles 17, man law, jurisdiction would not lie
18 or 22 of the introductory law of in Germany.
the Civil Code, or from the pro- 75 Hilton v. Guyot, 159 U. S. 113,
vision of the part of Article 27 of 16 Sup. Ct. Kep. 139, 40 L. ed. 95.
Treaties — 29
§ 440] AMBASSADORS AND CONSULS. 450
that he regarded the question as one which should be determined
by the ordinary and settled rule in respect of allowing a party
who has had the opportunity of proving his case in a competent
court to retry it on the merits. He was of the opinion that the doc-
trine of res adjudicata which applied to domestic judgments should
also be applied to foreign judgments, and that such doctrine rested
on the general ground of public policy, that there should be an end
of litigation. He stated that this application of the doctrine was in
accordance with American jurisprudence, and it was not neces-
sary that the court should hold it to be required by some rule
of international law. "The fundamental principle concerning
judgments," said he, "is that disputes are finally determined by
them, and I am unable to perceive why a judgment in personam
which is not open to question on the ground of want of jurisdic-
tion, either intrinsically or over the parties, or of fraud, or any
other recognized ground of impeachment, should not be held inter
paries, though recovered abroad, conclusive on the merits." He
concluded by saying: "I cannot yield my assent to the proposi-
tion that because by legislation and judicial decision in France
that effect is not given there to judgments recovered in this coun-
try which, according to our jurisprudence, we think should be
given to judgments wherever recovered (subject, of course, to
the recognized exceptions), therefore, we should pursue the
same line of conduct as respects the judgment of French tribu-
nals. The application of the doctrine of res judicata does not
rest in discretion; and it is for the government, and not for its
courts, to adopt the principle of retorsion, if deemed under any
circumstances desirable or necessary." Justices Harlan, Brewer
and Jackson concurred in this dissent.76
§ 440. Subject continued — Impeachment for fraud. — At the
same term of the supreme court of the United States at which
Hilton v. Guyot was decided, the court held that to warrant the
impeachment of a foreign judgment because it was procured by
fraud, the fraud must be distinctly alleged and charged.77 In
the case just cited, an action was commenced upon a Canadian
76 Hilton v. Guyot, 159 U. S. 113, 235, 16 Sup. Ct. Kep. 171, 40 L. ed.
16 Sup. Ct. Eep. 139, 40 L. ed. 131. 133.
77 Eitehie v. McMullen, 159 U. S.
451 SUBJECT CONTINUED — IMPEACHMENT FOR FRAUD. [§ 440
judgment and an answer was interposed which did not deny the
jurisdiction of the court over the cause or over the defendant,
nor did it allege that fraud was committed in procuring the judg-
ment, nor set up any other special ground for not giving it full
effect, but simply alleged the same defenses which were alleged,
or might have been alleged, in the Canadian court, and sought to
reopen and retry the whole merits. The court held that inasmuch
as by the law of England which prevailed in Canada a judg-
ment of an American court would be allowed full and conclusive
effect, the defense to the judgment, which it was attempted to
make, could not be permitted.78 "It is the settled law of this
state that a foreign judgment is conclusive upon the merits. It
can be impeached only by proof that the court in which it was
rendered had not jurisdiction of the subject matter of the action,
or of the person of the defendant, or that it was procured by
means of fraud. The judgments of the courts of a sister state are
entitled to full faith and credit in the courts of the other states,
under the Constitution of the United States, but effect is given to
the judgments of the courts of foreign countries by the comity of
nations, which is part of our municipal law." 79
78 Eitchie v. McMullen, 159 U. S. United States v. Minor, 114 U. S.
235, 16 Sup. Ct. Eep. 171, 40 L. eel. 233, 5 Sup. Ct. Rep. 836, 29 L. ed.
133. 110; Eeed v. Stanly, 89 Fed. 433;
79 Dunstan v. Higgins, 138 N. Y. Dringer v. Eeceiver, 42 N. J. Eq.
70, 34 Am. St. Eep. 431, 30 L. E. A. 580, 8 Atl. 815; In re Griffith, 84 Cal.
668, 33 N. E. 729, per O'Brien, J.; 113, 23 Pac. 529; Fealey v. Fealey,
Lazier v. Westcott, 26 N. Y. 146, 104 Cal. 359, 43 Am. St. Eep. 114,
82 Am. Dec. 404. The fraud by 38 Pac. '50; Camp v. Ward, 69 Vt.
vhich a judgment may be impeached 289, 60 Am. St. Eep. 931, 37 Atl.
cannot consist only in false and 748; Marquez v. Frisbie, 101 U. S.
fraudulent documents or in false 479, 25 L. ed. 802; United States v.
evidence submitted to the court, and Minor, 26 Fed. 752; United States v.
the truth of which was contested White, 9 Saw. 127, 17 Fed. 562;
and determined by the court, but it Andes v. Millard, 70 Fed. 517;
must be extrinsic to the matter tried Pacific E. E. Co. v. Missouri etc. Ey.,
in the cause. United States v. ? McCrary, 229, 12 Fed. 642; United
Throckmorton, 98 U. S. 61, 25 L. ed. States v. Hancock, 12 Saw. 389, 30
93; Vance v. Burbank, 101 U. S. 514, Fed. 856; Yeatman v. Bradford, 44
25 L. ed. 925; Steel v. St. Louis Fed. 538; Harrison v. Walton, 95
Smelt. & Eef. Co., 106 U. S. 447, 1 Va. 726, 64 Am. St. Eep. 835, 30
Sup. Ct. Eep. 389, 27 L. ed. 226; S. E. 374, 41 L. E. A. 703; United
Moffat v. United States, 112 U. S. States v. Northern Pac. E. Co., 95
24, 5 Sup. Ct. Eep. 10, 28 L. ed. 623; Fed. 982; Adler v. Land etc. Co.,
§§ 441, 442] AMBASSADORS AND CONSULS. 452
§ 441. In the absence of fraud the merits cannot be inquired
into. — A record of a court of competent jurisdiction of British
Honduras, showing the rendition of a judgment against a defend-
ant by default is, when introduced in evidence, in an action by
the plaintiff on the judgment, conclusive of such default.80 In a
case in Connecticut Mr. Justice Baldwin, after stating that it is
the settled rule in England that "in an action instituted there on
a foreign judgment rendered by a court of competent jurisdiction,
the proceedings before which were not so conducted as to be
clearly contrary to natural justice, the defendant cannot be al-
lowed to go into the merits of the original cause of action, which
were not tried in the foreign court, unless it be necessary, in or-
der to support a claim, that the judgment was procured by fraud,"
declared that "no one who has been, or could have been, heard
upon a disputed claim in a cause to which he was duly made a
party, pending before a competent judicial tribunal, having juris-
diction over him, proceeding in due course of justice, and not mis-
led by the fraud of the other party, should be allowed, after a
final judgment has been pronounced, to review the contest in an-
other country. The object of courts is hardly less to put an end
to controversies than to decide them justly." 81
§ 442. Mexican judgments. — A person in the employ of a rail-
road company suffered personal injuries in Mexico and brought
an action in the federal circuit court for the western district of
Texas to recover damages. It was held that a transcript of the
proceedings in a Mexican court which, in connection with other
evidence, made a prima facie showing, with the force of res
judicata, of a settlement adverse to the plaintiff's right of re-
covery, should be received in evidence.82
114 Ala. 562, 62 Am. St. Kep. 140, New York v. Brady, 115 N. Y. 615,
21 South. 493; McDonald v. Pear- 22 N. E. 242; Wiseman v. Eastman,
son, 114 Ala. 644, 21 South. 537; 21 Wash. 171, 57 Pac. 400.
Weir v. Vail, 65 Cal. 470, 4 Pac. 425; 80 Christian etc. Co. v. Coleman,
Sullivan v. Lumsden, 118 Cal. 668, 125 Ala. 158, 27 South. 786.
50 Pac. 778; Langdon v. Blackburn, 81 Fisher v. Fielding, 67 Conn. 91,
109 Cal. 26, 41 Pac. 816; Telford v. 52 Am. St. Eep. 270, 34 Atl. 714, 32
Brinkerhoff, 163 HI. 433, 45 N. E. L. E. A. 236.
357; Kichardson v. Stowe, 102 Mo. 82 Mexican Cent. Ky. Co. v. Chan-
44, 14 S. W. 812; Irvine v. Leyh, 102 try, 136 Fed. 316, 69 C. C. A. 454.
Mo. 207, 14 S. W. 717; Mayor etc.
453 CANADIAN JUDGMENTS. [§§ 443, 444
§ 443. Canadian judgments. — In a case arising in New Hamp-
shire the court refers to the case in the supreme court of the
United States holding that the effect to be given to a foreign
judgment is determined by the treatment given American judg-
ments, but states that the question cannot be raised as against
a Canadian judgment because the courts of Canada hold that
judgments of the courts of the United States are conclusive upon
the merits.83 It is said by Mr. Black in his treatise on judgments
that "the modern tendency of the decisions in this country is
plainly and uniformly in the direction of holding foreign judg-
ments in personam, rendered by courts having jurisdiction, to be
binding and conclusive upon the parties, and not re-examinable
upon the merits. ' ' 84
It is provided by the Consolidated Ordinances of the Northwest
Territories of Canada85 "that in case any defendant is out of the
territories, but has an agent, managing clerk or other representa-
tive resident and carrying on his business within the same," ser-
vice of the summons may be made on such agent or representa-
tive, and that a judgment obtained by means of such service shall
be valid. Under this provision, if a defendant has left the ter-
ritory and sold all his property therein, yet has left a power of
attorney authorizing his attorney to transact all business relat-
ing to his interests in Yukon Territory, which was used by the
attorney in the settlement of his affairs, the summons in a suit
may be served on such attorney, and the judgment obtained
based on such service will be upheld. If no fraud is alleged, such
judgment, when suit is brought on it in a court of the United
States, will, under the rule of comity recognized between the
courts of the two countries, be conclusive on the merits.86
§ 444. Rule in England. — In England, at the present day, the
rule is that all foreign judgments are considered as conclusive
s McDonald v. Grand Trunk Ky. Phiscator, 132 Mich. 258, 93 K W.
Co., 71 N. H. 448, 93 Am. St. Kep. 619; Glass v. Blackman, 48 Ark. 50,
550, 59 L. K. A. 448, 52 Atl. 982. 2 S. W. 257; Alaska Commercial Co.
See, also, Alaska Commercial Co. v. v. Debney, 144 Fed. 1, 75 C. C. A.
Debney, 144 Fed. 1, 75 C. C. A. 131. 131.
M Black on Judgments, sec. 829. K Sec. 14, p. 198 (of 1898).
Sec, also, to same effect, Konitzy 86 Alaska Commercial Co. v. Deb-
v. Mayer, 49 N. Y. 571; Coveney v. ney, 144 Fed. 1, 75 C. C. A. 131.
§§ 445, 446] AMBASSADORS AND CONSULS. 454
where it appears upon the face of the record that process has
been duly served upon the defendant and he has had the op-
portunity of appearing and contesting the claims of plaintiff.87
§ 445. Contract to influence corruptly officer of foreign gov-
ernment.— The courts of this country will not enforce a contract
to bribe or influence corruptly the officers of a foreign govern-
ment. The consul-general of the Ottoman government at New
York commenced an action to recover a sum of money which he
alleged was due to him for commissions on the sale of firearms
to that government. The sales were made while the plaintiff was
an officer of the Turkish government, through the influence which
he claimed he exerted upbn its agent, who had been sent to
the United States to examine and report relative to the purchase
of arms. The court declared that the contract was "corrupt in
its origin and corrupting in its tendencies. The services stipu-
lated and rendered were prohibited by considerations of morality
and policy, which should prevail at all times and in all countries,
and without which fidelity to public trusts would be a matter of
bargain and sale and not of duty." The court also held that
even if contracts are permissible by other countries, they are not
enforceable in the courts of the United States if they contravene
its laws, its morality, or its policy.88
§ 446. Consul cannot assume position antagonistic to his gov-
ernment.— A consul is an officer of his government, and it is his
general duty to guard and protect the interests of his govern-
ment and those of its citizens or subjects. In Christian countries
he is frequently permitted to engage in commercial pursuits, but
he is not allowed to take any position antagonistic to the interests
or policy of his government. "By some governments," said
Mr. Justice Field, "he is invested, in the absence of a minister
or ambassador to represent them, with diplomatic powers; and,
as between their citizens or subjects, may also exercise judicial
87 Burn v. Bletcher, 23 U. C. Q. B. Australasia v. Harding, 9 Com. B.
28; Bank of Australasia v. Mas, 16 661; De Cosse Brissac v. Eathbone,
Q. B. 717; Ferguson v. Mahon, 11 6 Hurl. & N. 301.
Ad. & E. 179 ; Henderson v. Hender- 88 Oscanyan v. Winchester E. Arms
son, 6 Ad. & E., N. S., 288; Castrique Co., 103 U. S. 261, 26 L. ed. 539.
v. Inrie, L. E. 4 H. L. 414; Bank of
455 JURISDICTION OF CONSULS BY TREATIES. [§ 447
functions. By ail governments his representative character is
recognized, and for that reason certain exemptions and privileges
are granted to him. In the Constitution of the United States,
consuls are classed with ministers and ambassadors in the enumer-
ation of parties whose cases are subject to the original jurisdic-
tion of the supreme court, and in the treaty with the Ottoman
Empire, authority is given to it to appoint consuls in the United
States A contract to bribe or corruptly influence officers
of a foreign government will not be enforced in the courts of
this country; not from any consideration of the interests of that
government or any regard for its policy, but from the inherent
viciousness of the transaction, its repugnance to our morality,
and the pernicious effect which its enforcement by our courts
would have upon our people."89 While an agreement to com-
pensate a person for purely professional services is valid, yet
any contract which is against public policy, or which is so inter-
mingled with one of that character as to make the two one trans-
action, cannot be enforced.
§ 447. Jurisdiction of consuls by treaties. — Many treaties have
been made by the United States with European nations whereby
exclusive jurisdiction of disputes between masters of vessels and
89 In Oscanyan v. Winchester R. passed was not accepted and adopted
Arms Co., 103 U. S. 261, 26 L. ed. or used by the stockholders, .no com-
539, citing Hope v. Hope, 8 De Gex, pensation should be allowed, it was
M. & G. 731; Watson v. Murray, 8 held that the contract was void as
C. E. Green (23 N. J. Eq.), 257. against public policy. Marshal v.
Where two transactions are so inter- Railroad Co., 16 How. 314, 14 L. ed.
mingled as to become one, and one 953. Illegality of a contract need
of them is against public policy, the not be pleaded, as the court will re-
whole transaction is void. Washing- fuse to enforce a contract when its
ton Irr. Co. v. Krutz, 119 Fed. 286, illegality is made apparent. Reed
56 C. C. A. 1. An agreement for v. Johnson, 27 Wash. 55, 67 Pac.
compensation to procure a contract 386, 57 L. R. A. 404. If the tend-
with the government to furnish it ency of a contract is to promote
supplies is against public policy and illegal acts, it is against the policy
cannot be enforced. Tool Co. v. of the law, and hence illegal.
Norris, 2 Wall. (69 U. S.) 45, 17 L. Young v. Thompson, 14 Colo. App.
ed. 868. Where compensation was 315, 59 Pac. 1037. See, also, Wood
claimed for services rendered in pro- v. McCann, 6 Dana, 366; Mills v.
curing the passage of a law by a Mills, 40 N. Y. 543, 100 Am. Dec.
.state legislature, upon a contract 535.
that if the law was not passed, or if
§§ 448, 449] AMBASSADORS AND CONSULS. 456
their crews have been conferred upon consuls.90 ' The treaty may
provide that the consul shall have exclusive jurisdiction ; 91 but
it would seem that to confer this jurisdiction a special provision
in a treaty is necessary.92
§ 448. Liability for false imprisonment. — A constable will be
liable in an action for false imprisonment if, proceeding under a
process issued from a state court in a controversy over which a
consul by the provisions of a treaty has exclusive jurisdiction, he
arrests the captain of a vessel, and if he at the time at which he
made the arrest was fully informed of the provisions of the
treaty.93 But a consular compact will not prevent a federal court
from assuming jurisdiction where the master of a vessel is guilty
of a barbarous and malicious assault on a seaman.94 But where
the consul has, by a treaty, exclusive jurisdiction, his decision is
not subject to review by the courts.95
§ 449. Authority of consul in enemy's country. — A consul of
the United States has, by virtue of his official position, no power
to grant any license or permit to exempt a vessel of the enemy
from capture and confiscation.96 "To exempt the property of
enemies from the effect of hostilities," says Sir William Scott,
"is a very high act of sovereign authority; if at any time dele-
gated to persons in a subordinate situation, it must be exercised
either by those who have a special commission granted to them
for the particular business, and who in legal language are termed
mandatories, or by persons in whom such a power is vested in any
official situation to which it may be considered incidental. It is
ft° See Norberg v. Hillbren, 5 N. 93 Tellefsen v. Fee, 168 Mass. 189,
Y. Leg. Obs. 177, 7 Am. Law Eev. 60 Am. St. Eep. 379, 46 N. E. 562, 45
418; The Elwine Kreplin, 9 Blatchf. L. E. A. 481.
438, Fed. Gas. No. 4,426; Tellefsen M The Salomon!, 29 Fed. 534. See,
v. Fee, 168 Mass. 188, 60 Am. St. also, Enos v. Sowle, 2 Hawaiian,
Eep. 379, 46 N. E. 562, 45 L. E. A. 332.
481; The Marie, 49 Fed. 286; The 95 The Elwine Kreplin, 9 Blatchf.
Wellhaven, 55 Fed. 80; In re Wilden- 438, Fed. Gas. No. 4,426.
haus, 28 Fed. 924. 9C The Benito Estenger, 176 U. S.
91 The Burchard, 42 Fed. 608. 568, 20 Sup. Ct. Eep. 489, 44 L. ed.
92 Weiberg v. The Brig St. Oloff, 2 592.
Pet. Adm. 432, Fed. Gas. No. 17,357.
457 INTERVENTION OP CONSULS. [§§ 450, 451
quite clear that no consul in any country, particularly in an
enemy's country, is vested with any such power in virtue of his
station."97
§ 450. Power of foreign consul to commence suit in rem. —
While a foreign consul has a right to claim the property or to com-
mence a proceeding in rem, where the rights of property of his fel-
low-citizens are involved, without a special procuration from those
persons in whose behalf he is moving, yet he is not entitled to re-
ceive restitution of the property in question without producing spe-
cial authority from the particular persons who are entitled to it.98
"To watch over the rights and interests of their subjects, wher-
ever the pursuits of commerce may draw them or the vicissitudes
of human affairs may force them, is the great object for which
consuls are deputed by their sovereigns ; and in a country where
laws govern and justice is sought for in courts only, it would
be a mockery to preclude them from the only avenue through
which their course lies to the end of their mission. The long and
universal usage of the courts of the United States has sanctioned
the exercise of this right; and it is impossible that any evil or
inconvenience can flow from it. ' ' 99
§ 451. Intervention of consul. — A foreign consul can petition
the court to have paid into the treasury the proceeds of property
libeled.100 While a consul is not entitled to represent his sov-
ereign in a country where the sovereign has an ambassador, he
is entitled to intervene in behalf of all subjects of that powrer
that are interested.101 When a consul is allowed to intervene,
he is not attempting to negotiate with a foreign state nor to vin-
dicate any prerogative of government, but he simply is the repre-
sentative of his government as having an interest in property
proceeded against.
9T The Hope, 1 Dod. 226, quoted in 10° The Ship Adolph, 1 Curt. 89,
Eogers v. The Amado, Newb. 400, 20 Fed. Gas. No. 86. See, also, The
Fed. Gas. No. 12,005. Conserva, 38 Fed. 434.
98 The Bello Corrunes, 6 Wheat. 101 Eobson v. The Huntress, 2 Wall.
152, 5 L. ed. 229. Jr. 59, Fed. Gas. No. 11,971. See,
99 Mr. Justice Johnson in The also, The Bello Corrunes, 6 Wheat. 166,
Bello Corrunes, 6 Wheat. 152, 5 L. 5 L. ed. 229.
ed. 229. See, also, The Elizabeth,
Blatehf. Pr. 253, Fed. Gas. No. 4350.
§§ 452, 453] AMBASSADORS AND CONSULS. 458
§ 452. Administration of estates. — The functions of a consul
in the administration of the estates of the subjects of the nation
by which he is appointed, and who dies within his jurisdiction or
consulate, are often regulated by treaty. It is said in the con-
sular regulations: "In Austria-Hungary, Belgium, Germany, Italy
and Netherlands and colonies, the local authorities are requested
to inform consuls of the death of their countrymen intestate or
without known heirs. In Germany, Roumania, and Servia, con-
suls have the right to appear for absent heirs or creditors until
regularly authorized representatives appear. In Muscat, Mor-
occo, Persia, Peru, Salvador, Tripoli, and Tunis, they may ad-
minister on the property of their deceased countrymen. In
Colombia they may do so except when legislation prevents it.
In Costa Rica, Honduras, and Nicaragua, they may nominate
curators to take charge of such property, so far as local laws
permit. In Paraguay, the}^ may become temporary custodians of
such property. In Germany, they may take charge of the effects
of deceased sailors." 102
We have considered on a former page the right of a consul,
based on a treaty stipulation, to administer upon the estate of a
deceased subject of the sovereign appointing him in preference
to a public administrator or other officer authorized by the law of
a state.103
§ 453. Shipping and seamen. — Various treaties between the
United States and other nations contain provisions as to the
duties and powers of consuls relative to shipping and seamen.
The eighth article of the treaty with France provides: "The re-
spective consuls-general, consuls, vice-consuls, or consular agents
shall have exclusive charge of the internal order of the merchant
vessel of their nation, and shall alone take cognizance of differ-
ences which may arise, either at sea or in port, between the cap-
tain, officers, and crew, without exception, particularly in refer-
ence to the adjustment of wages and the execution of contracts.
The local authorities shall not, on any pretext, interfere in these
differences, but shall lend forcible aid to the consuls when they
may ask it, to arrest and imprison all persons composing the
crew whom they may deem it necessarj^ to confine. Those per-
102 Consular Kegulations of the 10:! See see. 202, ante.
United States (1896), sec. 91, p. 35.
459 ACTION OF CONSUL NOT CONCLUSIVE. [§§ 454, 455
sons shall be arrested at the sole request of the consuls, addressed
in writing to the local authority, and supported by an official
extract from the register of the ship or the list of the crew, and
shall be held, during the whole time of their stay in the port, at
the disposal of the consuls. Their release shall be granted at the
mere request of the consuls, made in writing. The expenses of
the arrest and detention of those persons shall be paid by the con-
suls." As Congress has provided a mode of arrest in the exe-
cution of treaties,105 this must be regarded as the only means
proper to be adopted for the purpose, and hence the officer
named is the only one authorized to make the arrest on the requi-
sition of a French consul. But an unauthorized arrest by a
state official will not entitle a seaman to a discharge on habeas
corpus, when brought before the court, because the irregularity
of the arrest is cured by the court in examining into the case
under the Revised Statutes providing for the execution of treaties
relating to consular jurisdiction over the crews of foreign vessels
in the waters of the United States.106
§ 454. Action of consul not conclusive. — Where a libel is filed
for wages, the action of a consul in discharging a seaman in a for-
eign port is not conclusive.107 So, where an American consul had
seamen arrested for desertion, for failure to appear for work at
the proper hour, his mere certificate that the men had deserted,
without any record of an examination before him, was held, in
a suit for wages, not to be legal evidence of desertion.108
§ 455. American seamen. — But these treaty provisions do not
refer to American seamen. Thus, it is held that the treaty be-
tween the United States and Germany does not take away the
jurisdiction of the admiralty courts of the United States to de-
cide the rights of an American seaman entering and leaving the
service of a German vessel in the United States.109
104 10 Stats, at Large, 992. lor Campbell v. Steamer Uncle
105 13 Stats, at Large, 121; Rev. Sam, McAll, 77, Fed. Gas. No. 2,372.
Stats., sees. 4079-4081. 10S Graves v. The W. F. Babcock,
106 Dallemagne v. Moisan, 197 TJ. 79 Fed. 92.
S. 169, 25 Sup. Ct. Rep. 422, 49 L. 109 The Neck, 138 Fed. 144. See
ed. 709; Eev. Stats., sees. 4079-4081, 17 Stats, at Large, 928.
TJ. S. Comp. Stats. 1901, p. 2766.
§§ 456 4:58] AMBASSADORS AND CONSULS. 460
§ 456. Fees for prosecution of claim. — The Revised Statutes
of the United States prohibit a person holding a place of trust
or profit under the government from acting as agent for the
prosecution of a claim against the United States.110 If a person
enters into a contract with another to assist him in the prosecu-
tion of the claims of a city against the government, and in a brief
time subsequent to the execution of the contract becomes a min-
ister of the United States to a foreign country, and holds this
position during the prosecution of the claim, he cannot recover
any fee for its prosecution.111 But while he cannot recover any
fee for his services, he can, upon payment of the claims, recover
from his associate in the contract any attorney fees and costs
advanced for his benefit.112
§ 457. Judicial notice of signature and seal. — The court takes
judicial notice of the seal and signature of consular officers.113
Hence, a copy of a corporation contract filed in England, which
is certified by the assistant registrar of joint stock companies,
and to which is attached the signature of a London notary stating
that the signature is genuine, accompanied by the signature of
the vice and deputy consul-general of the United States at Lon-
don, under his seal of office, is properly certified.114
§ 458. Acknowledgments and affidavits by consular officers. —
By the Revised Statutes of the United States, power is conferred
upon consular officers to perform any notarial act which a notary
public is required or authorized by law to perform in the United
States.115 Under the provisions of a code of a state declaring that
affidavits and depositions may be made and taken outside of
the state before any notary public or other person authorized to
take depositions, it is held that a consular officer is a notary
public, so that a deposition taken by him is admissible in evi-
dence.116 An acknowledgment of a deed and mortgage can be
110 Kev. Stats., sec. 5498; Comp. 114 Barber v. International Co. of
Stats. 1901, p. 3707. Mexico, 73 Conn. 587, 48 Atl. 758.
U1 Fox v. Willis, 24 Ky. Law Eep. 115 Eev. Stats., sec. 1750; U. S.
1773, 72 S. W. 330; Id., 24 Ky. Law Comp. Stats., p. 1196.
Eep. 2173, 73 S. W. 743. 11C Browne v. Palmer, 66 Neb. 287,
112 Fox v. Willis, supra. 92 N. W. 315.
113 Barber v. International Co. of
Mexico, 73 Conn. 587, 48 Atl. 758.
461
ACKNOWLEDGEMENTS AND AFFIDAVITS.
[§ 458
taken by a deputy consul-general.117 The word "consul" includes
any person invested by the government with the functions of
consul-general, vice consul-general, or vice-consul. An acknowl-
edgment before a consul-general is valid.118
117 Stewart v. Linton, 204 Pa. 207,
53 Atl. 744. See, also, Evans v.
Lee, 11 Neb. 194; Mott v. Smith,
16 Cal. 533; Brown v. Landon, 30
Hun, 57.
118 Morris v. Lenton, 61 Neb. 537,
85 N. W. 565. It is held that a
deputy United States consul, by rea-
son of his confidential relations with
the consul and on the ground of
public policy, is not qualified to act
IP a commissioner to take the deposi-
tion of the consul issued under an
act of Maryland of 1773, in a case
in which the consul is the plaintiff,
and that a deposition taken by the
deputy under such circumstances
will be suppressed if it is shown that
the defendant was ignorant of the
fact that the commissioner was the
deputy consul at the time when the
deposition was taken. Massachusetts
Mut. Ace. Assn. v. Dudley, 15 App.
D. C. 472.
;§ 459, 460] NATURALIZATION AND EXPATRIATION. 462
CHAPTER XIV.
NATURALIZATION AND EXPATRIATION.
§ 459. Naturalization and expatriation.
§ 460. Perpetual allegiance.
§ 461. American doctrine.
§ 462. Compulsory military service.
§ 463. Claim of exemption as a matter of comity.
§ 464. Treaties of naturalization.
§ 465. Other treaties on same subject.
§ 466. Citizens in ceded territory.
§ 467. Effect of judgment.
§ 468. Setting aside certificate of citizenship under recent law.
§ 469. Collective naturalization by admission of a state.
§ 470. Expatriation of American citizens.
§ 471. Statute of 1907.
§ 459. Naturalization and expatriation. — It is not proposed to
enter at length into a discussion of the questions relating to nat-
uralization and expatriation. So far as naturalization is con-
cerned, it is purely a matter for internal regulation, as Congress
may say what class of persons shall or shall not be admitted to
citizenship, and upon what terms. Many questions have arisen
as to the acts that would deprive a foreign-born citizen who has
become naturalized in the United States of his rights of citizen-
ship when he had left the United States either for a temporary
or permanent residence abroad. The perplexing questions as to
what acts would constitute a renunciation of American citizen-
ship which formed the basis of much diplomatic correspondence
have, so far as the government of the United States is concerned,
now been settled by legislation.
§ 460. Perpetual allegiance. — Frequent disputes have arisen
between the United States and European governments which
claimed the right to demand military service from persons born
within their allegiance but who had become naturalized citizens
of the United States. The doctrine of perpetual allegiance was
thus expressed by Lord Greenville: "No British subject can,
by such a form of renunciation as that which is prescribed in the
UNIVERSITY
OF
463 ^jUFORtj^^MERICAN DOCTRINE. [§ 461
American law of naturalization, devest himself of his allegiance
to his sovereign. Such a declaration of renunciation made by
any of the king's subjects would, instead of operating as a pro-
tection to them, be considered an act highly criminal on their
part."1 This principle was not admitted by the United States.
In 1848 Mr. Buchanan, Secretary of State, in a note to Mr. Ban-
croft, Minister to England, said: "Whenever the occasion may
require it, you will resist the British doctrine of perpetual allegi-
ance, and maintain the American principle that British native-
born subjects, after they have been naturalized under our laws,
are, to all intents and purposes, as much American citizens and
entitled to the same degree of protection as though they had
been born in the United States." 2
§ 461. American doctrine. — The United States settled the
principle to prevail in this country by declaring that "the right
of expatriation is a natural and inherent right of all people, in-
dispensable to the enjoyment of the right of life, liberty and the
pursuit of happiness," and that "any declaration, instruction,
opinion, order, or decision of any officer of the United States
which denies, restricts, impairs or questions the right of expatria-
tion, is declared inconsistent with the fundamental principles of
the republic."3 It was further declared that "all naturalized
citizens of the United States, while in foreign countries, are en-
titled to and shall receive from this government, the same pro-
tection of persons and property which is accorded to native-born
citizens, ' ' 4 and that whenever it is made known to the President
"that any citizen of the United States has been unjustly deprived
of his liberty, by or under the authority of any foreign govern-
ment, it shall be the duty of the President forthwith to demand
of that government the reasons of such imprisonment; and if it
;appears to be wrongful and in violation of the rights of Ameri-
can citizenship, the President shall forthwith demand the re-
llease of such citizen, and if the release so demanded is unreason-
ably delayed or refused, the President shall use such means, not
I 1 To Mr. King, American Minister, 3 Eev. Stats., sec. 1999 ; U. S.
bfarch 27, 1897, American State Comp. Stats. 1901, 1269.
Papers, For. Bel., II, 148. 4 Eev. Stats., sec. 2000; Comp.
- 47 Brit. & For. State Pap. 1236, Stats. 1901, 1270.
11237.
§§ 462, 463] NATURALIZATION AND EXPATRIATION. 464
amounting to acts of war, as he may think necessary and proper
to obtain or effectuate the release."5 In England it is now, by
statute, declared that a British subject may expatriate himself.®
§ 462. Compulsory military service. — The question has arisen
as to the obligation of a foreign resident to render compulsory
military service, and Mr. Seward, while Secretary of State, ex-
pressed the rule to be that ''No alien-born person is liable to
render military service unless he has been naturalized on his own
application, or has made a voluntary declaration on oath of his
intention to become a citizen by naturalization, according to law,
or has claimed and actually exercised the political right of voting
as a citizen of the United States. ' ' 7 The government of the
United States during the Civil War claimed that all persons who
had voted as state citizens were liable to conscription, and de-
clared by an act of Congress that the levy should include "all
persons of foreign birth, who shall have declared on oath their
intention to become citizens."
But where there is no treaty stipulation convening the case, a
citizen of the United States who is a resident in Chile cannot claim
exemption from service in a temporary civic guard in which all
residents are required to serve by law.8
§ 463. Claim of exemption as a matter of comity. — In 1873 Mr.
Davis, Assistant Secretary of State, said that there was no treaty
stipulation between Great Britain and the United States which ex-
empts the citizens or subjects of either party from military duty
in the forces of the other either in peace or war, and that such
exemption could not be claimed as a matter of right. But "as
a matter of comity and reciprocity, however, we certainly can
claim them. During the late Civil War in this country, there
were numerous instances where British subjects were drafted
into the military service of the United States, but were subse-
quently discharged upon the application of the British Minister
here. The only cases in which a compliance with such an applica-
tion was refused were the few in which persons of that nationality
5 Rev. Stats., sec. 2001; U. S. 8 Mr. Fish, Secretary of State, to
Comp. Stats. 1901, 1270. Mr. Williamson, No. 140, June 13,
6 33 & 34 Viet. 105, c. 14. 1876, MS. Inst. Chile, XVI, 181.
7 62 MS. Dom. Let. 333, 502.
465 TREATIES OF NATURALIZATION. [§§ 464, 465
had voted in states where foreigners not fully naturalized ara
allowed that privilege. ' ' 9
§ 464. Treaties of naturalization. — A treaty relating to nat-
uralization was concluded between the United States and the
North German Confederation on February 22, 1868.10 Similar
treaties were made with Bavaria, May 26, 1868 ; n Baden, July
19, 1868 ;12 Wiirttemberg, July 27, 1868; and Hesse, August 1,
1868. 13 On May 26, 1869, a naturalization convention was con-
cluded between the United States and Sweden and Norway,
whereby a citizen of one country who has resided in the other
"for a continuous period of at least five years," and has become
naturalized is recognized as a citizen of the country of his adop-
tion. In a protocol accompanying the treaty it is declared that
the residence of five years shall not be considered a prerequisite
where a person has been discharged from his original citizen-
ship.14
§ 465. Other treaties on same subject. — The United States
and Great Britain, by a convention, signed May 30, 1870, recog-
nize in one country naturalization acquired in the other.15 In
1870, a convention was entered into betAveen the United States
and the Austro-Hungarian monarchy, providing for the nat-
uralization of citizens of the respective countries after an unin-
terrupted residence of five years. It is stipulated that a natu-
ralized citizen of one party on return to the territory of the
other shall be liable to trial and punishment for an action pun-
ishable by the laws of his country committed before his immi-
gration, and that in particular a former citizen of the Austro-
Hungarian monarchy who, under the treaty, would be held to be
an American citizen, is liable to trial and punishment according
to the laws of Hungary for nonfulfillment of military duties.
"1st. If he has emigrated, after having been drafted at the time of
conscription, and thus having become enrolled as a recruit for
service in the standing army; 2d. If he has emigrated whilst he
9 March 7, 1873, 69 MS. Desp. to 12 16 Stats, at Large, 371.
Consuls, 254. 13 16 Stats, at Large, 473.
10 15 Stats, at Large, 615. 14 17 Stats, at Large, 809.
11 15 Stats, at Large, 661. 15 16 Stats, at Large, 775.
Treaties — 30
§ 466] NATURALIZATION AND EXPATRIATION. 466
stood in service under the flag, or had leave of absence only for
a limited time ; 3d. If having a leave of absence for an unlimited
time, or belonging to the reserve or to the militia, he has emi-
grated after having received a call into service, or 'after a pub-
lic proclamation requiring his appearance, or after war has
broken out." The treaty, however, provides that a former citi-
zen of that country naturalized in the United States, who, after
his emigration, "has transgressed the legal provisions or military
duty by any acts or omissions other than those above enumerated
in the clauses numbered 1, 2, and 3, can, on his return to his
original country, neither be held subsequently to military ser-
vice, nor remain liable to trial and punishment for the nonfulfill-
ment of his military duty. ' ' 1G Similar provisions are to be
found in the treaties with European powers having a com-
pulsory military service. A convention was entered into between
the United States and Belgium in 1868, providing that citizens
of one country naturalized in the other shall be deemed citizens
of the latter.17 A similar treaty was concluded with Denmark in
1872,18 and with Hayti in 1902.19
§ 466. Citizens in ceded territory. — It has been provided gen-
erally in the treaties of cession by which the United States has
acquired new territory that those who were citizens of such ter-
ritory before cession should be considered citizens of the United
States. This branch of the subject has been considered in a
preceding section.20
16 17 Stats, at Large, 833. ated thereto by the laws of that
17 16 Stats, at Large, 747. As to country."
military service, the third article of 1S 17 Stats, at Large, 941.
this treaty provides: "Naturalized 19 33 Stats, at Large, 2101, 2157.
citizens of either contracting party 20 See sec. 295. The treaty of
who shall have resided five years in 1794 with Great Britain stipulated
the country which has naturalized that British subjects residing in the
them cannot be held to the obliga- territory evacuated by the British
tion of military service in their or- troops who continued so to reside
iginal country, or to incidental ob- without declaring at any time be-
ligation resulting therefrom, in the fore the expiration of one year
event of their return to it, except thereafter their intention to remain
in cases of desertion from organized British subjects should be con-
and embodied military or naval ser- sidered American citizens. 8 Stats.
vice, or those that may be assimil- at Large, 116. The treaty with
467 EFFECT OF JUDGMENT. [§§ 467, 468
§ 467. Effect of judgment. — An order of court admitting an
alien to citizenship has the effect of a judgment of court and *s
entitled to the same consideration, and it cannot be set aside ex-
cept in some mode recognized by law for setting aside judgments,
as it possesses the same qualities as any other judgment.21 Un-
der the prior naturalization act it was held that a certificate of
citizenship could not be set aside upon the ground of a false rep-
resentation of facts to the court.22 A record of naturalization
cannot be impeached collaterally.23
§ 468. Setting aside certificate of citizenship under recent law.
The naturalization law recently passed provides that "it shall be
the duty of the United States district attorneys for the respective
districts, upon affidavit showing good cause therefor, to institute
proceedings in any court having jurisdiction to naturalize aliens
in the judicial district in which the naturalized citizen may reside
at the time of bringing the suit, for the purpose of setting aside
and canceling the certificate of citizenship on the ground of fraud
or on the ground that such certificate was illegally procured. In
any such proceedings the party holding the certificate of citizen-
ship alleged to have been fraudulently or illegally procured shall
have sixty days' personal notice in which to make answer to the
petition of the United States ; and if the holder of such certificate
France by which Louisiana was 2l United States v. ISTorsch, 42 Fed.
ceded declared that the inhabitants 417; Tinn v. U. S. District Attorney,
should be incorporated into the J.48 Cal. 773, 113 Am. St. Eep. 354,
Union of the United States, and ad- 84 Pae. 152; Commonwealth v. Paper,
mitted as soon as possible, according t Brewst. 263; In re McCoppin, 5
to the principles of the constitution, Saw. 632, Fed. Cas. No. 8713; People
to the enjoyment of all the rights of v. McGowan, 77 111. 644, 20 Am. Eep.
American citizens. 8 Stats. at 254; Spratt v. Spratt, 4 Pet. (U. S.)
Large, 200. In the treaty with 408, 7 L. ed. 902; Stark v. Chesa-
Spain by which Florida was ceded peake Ins. Co., 7 Cranch, 420, 3 L.
the provision was that the inhab- ed. 391.
itants " shall be incorporated in the 22 United States v. Gleason, 78
Union of the United States as soon Fed. 397; Pintsch C. Co. v. Bergin,
as may be consistent with the prin- 84 Fed. 141.
ciples of the Federal Constitution, -"i People v. McGowan, 77 111.
and admitted to the enjoyment of all 647, 20 Am. Eep. 255; State v. Mac-
the privileges, rights and immunities donald, 24 Minn. 59; McCarthy v.
of the citizens of the United Marsh, 5 N. Y. 263.
States." 8 Stats, at Large, 252.
§ 469] NATURALIZATION AND EXPATRIATION. 468
be absent from the United States or from the district in which
•
he last had his residence, such notice shall be given by publica-
tion in the manner provided for the service of summons by pub-
lication or upon absentees by the laws of the state or the place
where such suit is brought. ' ' 24 This provision applies not only
to certificates of citizenship issued under the act, but applies
also to all certificates issued before its passage.25
§ 469. Collective naturalization by admission of a state.—
When a state is admitted on an equal footing with the original
states in all respects whatever, the admission will cause the adop-
tion as citizens of the United States of those made members of
the political community by Congress, and, who in the formation
of the new state, are recognized as such by the consent of Con-
gress; that is, a collective naturalization may be accomplished in
the admission of a state, in accordance with the intention of
Congress and the inhabitants of the state seeking admission.26
When Texas was admitted as a state all the citizens of the former
republic became citizens of the United States without any ex-
press declaration, as it was admitted on an equal footing with
the original states.27 As stated by Mr. Justice Matthews: "It
rests with Congress to say whether, in a given case, any of the
people, resident in the territory, shall participate in the election
of its officers or the making of its laws; and it may, therefore,
take from them any right of suffrage it may have previously con-
ferred, or at any time modify or abridge it, as it may deem ex-
pedient. The right of local self-government as known to our
system as a constitutional franchise belongs, under the Constitu-
tion, to the states and to the people thereof, by whom that Con-
stitution was ordained, and to whom by its terms all power not
conferred by it upon the government of the United States was
expressly reserved. The personal and civil rights of the inhabi-
tants of the territories are secured to them, as to other citizens, by
the principles of constitutional liberty which restrain all the
24 34 Stats, at Large, 596, sec. 15. at Large, 108; McKinney v. Saviego,
25 34 Stats, at Large, 596, sec. 15. 59 U. S. (18 How.) 235, 15 L. ed.
26 Boyd v. State of Nebraska, 143 365; Cryer v. Andrews, 11 Tex. 170;
U. S. 158, 12 Sup. Ct. Eep. 375, 36 L. Barren v. Kelly, 31 Tex. 476; Carter
ed. 103. v. Territory, 1 N. Mex. 317.
27 5 Stats, at Large, 798; 9 Stats.
469 EXPATRIATION OF AMERICAN CITIZENS. [§§ 470, 471
agencies of government, state and national; their political rights
are franchises which they hold as privileges in the legislative
discretion of the Congress of the United States.''28 In various
treaties with Indian tribes provisions have been made for such as
desired to remain and become citizens of the United States.29
§ 470. Expatriation of American citizens. — The question of
expatriation or renunciation of American citizenship acquired by
foreign-born residents, who returned to their own country has
been the object of much diplomatic correspondence, and the prin-
ciples to be applied are not well defined. Finally to lay down
definite rules, statutes have been passed defining the acts that
shall be deemed to constitute acts of expatriation. In the re-
cent naturalization act it is provided that if any alien who has
acquired a certificate of citizenship shall, within five years after
its issuance, return to the country of his nativity, or go to any
other foreign country, and take permanent residence therein, it
shall be considered prima facie evidence of a lack of intention on
his part to become a permanent citizen of the United States at
the time of filing his application for citizenship, and, in the ab-
sence of countervailing evidence, it shall be sufficient to authorize
the cancellation of his certificate, as fraudulent.30
§ 471. Statute of 1907.— In March, 1907, a statute was en-
I acted by Congress which made express declaration as to what
| acts should constitute renunciation of citizenship. This statute
i provides that an American citizen shall be considered as having
28 Murphy v. Bamsey, 114 U. S. hered to the cause of Independence
j, 15, 44, 5 Sup. Ct. Kep. 747, 29 L. up to July 4, 1776, were invested
I ed. 47, 57. with the privileges of citizenship
29 As to the Choctaws, see 7 Stats. by the Declaration. United States
I at Large, 335; as to the Cherokees, v. Eitchie, 58 U. S. (17 How.) 525, 15
• 7 Stats, at Large, 483; as to the L. ed. 236; Ingles v. Sailor's Snug
ji Slockbridge tribe, 5 Stats, at Large, Harbor, 28 U. S. (3 Pet.) 99, 7 L.
1.647; as to the Brothertown Indians ed. 617. See, also, Desbois' Case, 2
I of Wisconsin, 5 Stats, at Large, 349. Mart. (La.) 185; United States v.
All white persons or persons of Laverty, 3 Mart. (La.) 733, Fed. Gas.
ji European descent who were born in No. 15,569a ; American Ins. Co. v.
|.any of the thirteen colonies, who Canter, 26 U. S. (I Pet.) 511, 7 L.
had resided or been adopted many ed. 242.
of them prior to 1776 and had ad- 30 Stats, at Large, 601, sec. 15.
§ 471] NATURALIZATION AND EXPATRIATION. 470
expatriated himself when he has been naturalized in any foreign
state, or when he has taken an oath of allegiance to any foreign
state. If he shall have resided for two years in the foreign
state from which jie came, or for five years in any foreign state,
it shall be presumed that he has ceased to be an American citi-
zen, and the place of his general abode shall be deemed his place
of residence during such years, but he may overcome this pre-
sumption by presenting satisfactory evidence to a diplomatic or
consular officer of the United States, under such rules and regu-
lations as may be prescribed by the Department of State. No
American citizen, however, shall be allowed to expatriate himself
when the United States is at war. An American woman who
marries a foreigner takes the nationality of her husband, but at
the termination of the marital relation she may resume her Ameri-
can citizenship, if abroad, by registering as an American citizen
within one year with a consul of the United States, or by re-
turning to reside in the United States, or, if residing in the United
States at the termination of the marital relation, by continuing
to reside therein. A foreign woman who acquires American citi-
zenship by marriage to an American shall be assumed to retain
the same after the termination of the marital relation, if she con-
tinues to reside in the United States, unless she makes a formal
renunciation thereof before a court having jurisdiction to natural-
ize aliens ; or if she resides aboard, she may retain her citizenship
by registering as such before a United States consul within one
year after the termination of such marital relation.
A child born within the United States of alien parents shall be
deemed a citizen of the United States by virtue of the naturaliza-
tion of the parents or by his resumption of American citizenship.
But such naturalization or resumption must take place during the
minority of the child. The statute further provides that the citi-
zenship of such minor child shall begin at the time such minor
child begins to reside permanently in the United States. Chil-
dren born outside the limits of the United States, who are citi-
zens thereof in accordance with the provisions of the Revised
Statutes,31 and who continue to reside outside of the United
States, are, in order to receive the protection of the government,
required, upon reaching the age of eighteen years, to record at
•-1 Rev. Stats., sec. 1993.
471
STATUTE OF 1907.
[§ 471
an American consulate their intention to become residents and
remain citizens of the United States, and are further required to
take the oath of allegiance to the United States upon attaining
their majority. Duplicates of any evidence, registration or other
acts required by the statute are to be filed with the Department
of State for record.32
32 Stats, at Large, 1228.
RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 472
CHAPTER XV.
RESPONSIBILITY OF GOVEKNMENT FOR MOB VIOLENCE.
§ 472. General comments.
§ 473. Property of consul injured through negligence.
§ 474. Punishment of violation of treaty right — President Harrison's rec-
ommendation.
§ 475. Introduction of bill to carry out recommendation.
§ 476. President McKinley's recommendation.
§ 477. Renewal of recommendation.
§ 478. President Roosevelt's recommendation.
§ 479. Hostility toward Japanese.
§ 480. Claims made by the United States.
§ 481. Official interference limited to tortious acts.
§ 482. Rules of Department of State.
§ 483. Redress for injuries — Wheeloek's case.
§ 484. Offer of settlement.
§ 485. Case of William Wilson.
§ 486. Zambrano's case.
§ 487. Case of Dr. Shipley.
§ 488. Grounds for interference.
§ 489. Courts open for redress.
§ 490. Montijo controversy.
§ 491. Federal government of Colombia responsible for acts of states.
§ 492. Same practice in the United States.
§ 493. Constitution of Colombia prohibiting interference with states.
§ 494. An embarrassing precedent.
§ 495. Department of State not a court of error.
§ 496. Demands upon the United States.
§ 497. Destruction of French privateers at Savannah.
§ 498. Contention of France.
§ 499. Position of the United States.
§ 500. New Orleans and Key West riots in 1851.
§ 501. Distinction between rights of consul and resident foreigners.
§ 502. Appropriation by Congress.
§ 503. Explanations of appropriation.
§ 504. Damages for destruction of property.
§ 505. The steamer "Caroline."
§ 506. Arrest of McLeod.
§ 507. Diplomatic action.
§ 508. Opinion of John Quincy Adams.
§ 509. Principle of public law admitted.
473 RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE.
Federal statute enacted.
Attacks on Chinese at Denver.
Views of Mr. Evarts, Secretary of State.
Compensation to owners of property.
Attack on Chinese at Kock Springs.
Case of territory.
American demands on China.
Views of Mr. Bayard, Secretary of State.
Incident devoid of national character.
China closed to residence.
No reciprocity intended.
System of American government known to China.
President Cleveland's special message.
Views of Senator Edmunds.
Other allowances for injuries to Chinese residents.
Explanation of treaty.
Mafia riots and lynching at New Orleans.
Demands of the Italian government.
Withdrawal of American Minister.
Tender of indemnity.
Suits to recover damages.
Killing of Italian subjects in Colorado in 1895.
Variance between consul and ambassador.
Action of the United States.
Lynching of Italians at Hahnville.
Government citizen's agent.
Contention of Italian ambassador.
Italians voting.
Subject closed by appropriation.
Renunciation of Italian allegiance.
Other lynching of Italians.
Wounding of a British subject at New Orleans.
Appropriation by Congress.
Hanging of a Mexican in California.
Responsibility of government for boycott.
Responsibility of municipal corporation for damages by mobs.
Liability imposed by statute.
Reputation of deceased.
Participation by owner.
Notice to be given.
Immaterial ruling.
Sufficient time to give notice.
Constitutionality of such statutes.
Liberal construction.
Common purpose of crowd.
§§472,473] RESPONSIBILITY OF GOVERNMENT FOB MOB VIOLENCE. 474
§ 472. General comments. — Several cases have occurred in the
United States where foreign citizens have been injured or killed
by the action of uncontrolled mobs, and when indemnity has
been asked by their governments, the United States has con-
sistently contended that it was not compelled to make indemnity,
save in those special cases, such as an attack on the official rep-
resentatives of a foreign government, or where, by virtue of a
special clause in a treaty, there rested upon the government a
special duty of protection. Still, Congress has appropriated
money, in many instances, as indemnity to the sufferer or his heirs,
always stating, however, that such appropriations were made out
of humane consideration and not as an acknowledgment of lia-
bility.
In 1802 Attorney General Lincoln announced: "By the law of
nations, if the citizens of one state do an injury to the citizens of
another, the government of the offending party ought to take
every reasonable measure to cause reparation to be made by the
offender. But if the offender is subject to the ordinary processes
of law, it is believed this principle does not generally extend to
oblige the government to make satisfaction in case of the inability
of the offender."1
Accordingly, where an American vessel seized an alleged Dan-
ish vessel as French property, on the south side of the Island of
San Domingo, and while awaiting examination under the Ameri-
can flag a British ship seized the Danish vessel too, conveyed
her to Jamaica and there condemned her, it was ruled that in-
asmuch as the first captors were not liable for capturing and hold-
ing the vessel long enough for examination, nor for the second cap-
ture, and as no liability rests upon the United States even for un-
lawful captures by its subjects, the United States was not obli-
gated to indemnify the Danish owner.2
§ 473. Property of consul injured through negligence. — If,
owing to the negligence of a foreign government, the personal
property of a consul of the United States is injured, such govern-
ment is liable for damages.3 In 1875 Mr. Fish, Secretary of
1 1 Op. Atty. Gen. (1802) 106, 107. State, to Mr. Mathews, January 16,
2 Lincoln, 1 Op. Atty. Gen. 106. 1883; MS. Inst. Barb. Powers, XVI,
3 Mr. Frelinghuysen, Secretary of 103.
475 PUNISHMENT OF VIOLATION OF TREATY RIGHT. [§§ 474, 475
State, in correspondence with the Mexican Minister relative to
the lynching of a number of Mexican shepherds in Texas, as-
sumed the position that a government is not "answerable in pe-
cuniary damages for the murder of individuals by other indi-
viduals within its jurisdiction;" and that while it was the duty
of a government to prosecute such offenders according to law by
all means at its command, still, if this duty were honestly and
diligently performed, the obligations of the government were ful-
filled.4 In 1888 Mr. Bayard, Secretary of State, declared that
the position taken by the Department of State, as defined in Mr.
Fish's notes, was still believed to be sound in international law.5
§ 474. Punishment of violation of treaty right — President
Harrison's recommendation. — Congress has passed no law mak-
ing the violation of the treaty rights of aliens a crime cognizable
in the federal courts, though it has often been urged to do so.
In his annual message of December 9, 1891, President Harri-
son called attention to this defect in our laws, and said: "It
would, I believe, be entirely competent for Congress to make of-
fenses against the treaty rights of foreigners domiciled in the
United States cognizable in the Federal Courts. This has not,
however, been done, and the Federal officers and courts have no
power in such cases to intervene either for the protection of a
foreign citizen or for the punishment of his slayers. It seems to
me to follow, in this state of the law, that the officers of the state
charged with police and judicial powers in such cases must, in
the consideration of international questions growing out of such
incidents, be regarded in such sense as Federal agents as to make
this government answerable for their acts in cases where it
would be answerable if the United States had used its constitu-
tional power to define and punish crimes against treaty rights."
t
§ 475. Introduction of bill to carry out recommendation. —
Conformably to these suggestions, a bill was introduced in the
Senate March 1, 1892, and favorably reported March 30, 1892,
providing that any act committed in any state or territory in vio-
lation of the rights of a citizen or subject of a foreign country
secured to such citizen or subject by treaty between the United
* For. Eel. 1875, II, 973. 9 For. Eel. 1888, II, 1308.
§§ 476-478 J RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 476
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. Congress, however, failed to make the bill a law.
§ 476. President McKinley's recommendation. — President Mc-
Kinley, in his message of December 5, 1889, asked that the sub-
ject be taken up anew, and stated that the necessity for some
such provision was apparent. "Precedent for constituting a
Federal jurisdiction in criminal cases," said he, "where aliens are
sufferers, is rationally deducible from the existing statute, which
gives to the district and circuit courts of the United States juris-
diction of civil suits brought by aliens where the amount in-
volved exceeds a certain sum. If such jealous solicitude be shown
for alien rights in cases of merely civil and pecuniary import,
how much greater should be the public duty to take cognizance
of matters affecting the life and rights of aliens under the settled
principles of international law no less than under treaty stipula-
tion, in cases of such transcendent wrongdoing as mob murder,
especially when experience has shown that local justice is too
often helpless to punish the offenders. ' ' °
§ 477. Renewal of recommendation. — In his annual message of
December 3, 1900, President McKinley renewed the recommenda-
tions that he had made in the preceding year for the extension
to the federal courts of jurisdiction in this class of cases, where
the ultimate responsibility of the federal government may be
involved, and declared: "It is incumbent upon us to remedy the
statutory omission which has led, and may again lead, to such
untoward results. I have pointed out the necessity and the prec-
edent for legislation of this character. Its enactment is a simple
measure of provisory justice toward the nations with which we
as a sovereign equal make treaties requiring reciprocal observ-
§ 478. President Roosevelt's recommendation. — In his an-
nual message of December, 1906, President Roosevelt spoke of
the necessity of international morality, and declared that it should
8 For Eel. 1889, XXII. T For. Eel. 1900, XXII.
477 HOSTILITY TOWARD JAPANESE. [§ 479
be our steady aim to raise the ethical standard of national ac-
tion, to the same extent as we strive to raise the ethical standard
of individual actions, and that it was our duty not only to
treat all nations fairly, but also to treat with justice and
goodwill all immigrants who came to the United States under the
law. He said: "Whether they are Catholic or Protestant, Jew or
Gentile; whether they come from England or Germany, Russia,
Japan or Italy, matters nothing. All we have a right to ques-
tion is the man's conduct. If he is honest and upright in his
dealings with his neighbor and with the State, then he is en-
titled to respect and good treatment. Especially do we need to
remember our duty to the stranger within our gates. It is the
sure mark of a low civilization, a low morality, to abuse or dis-
criminate against or in any way humiliate such stranger who has
come here lawfully and who is conducting himself properly. To
remember this is incumbent on every American citizen, and it is
of course peculiarly incumbent on every Government official,
whether of the nation or of the several states." 8
§ 479. Hostility toward Japanese. — The President stated that
he was prompted to say this on account of the attitude of
hostility assumed here and there toward the Japanese in this
country. He spoke of our international obligations, and as-
serted that one of the great embarrassments attending their
performance was the inadequacy of the statutes of the United
States, and proceeded: "They fail to give to the National Gov-
ernment sufficiently ample power, thru United States courts
and by the use of the Army and Navy, to protect aliens in the
rights secured to them under solemn treaties which are the
law of the land. I therefore earnestly recommend that the
criminal and civil statutes of the United States be so amended
and added to as to enable the President, acting for the United
States Government, which is responsible in our international rela-
tions, to enforce the rights of aliens under treaties. Even as the
law now is something can be done by the Federal Government
toward this end, and in the matter now before me affecting the
Japanese, everything that it is in my power to do will be done,
and all the forces, military and civil, of the United States which
8 Cong. Eecord, Vol. 41, No. 2, Dec. 4, 1906; p. 32.
§§ 480, 481] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 478
I may lawfully employ will be so employed. There should, how-
ever, be no particle of doubt as to the power of the National
Government completely to perform and enforce its own obliga-
tions to other nations. The mob of a single city may at any time
perform acts of lawless violence against some class of foreigners
which would plunge us into war. That city by itself would be
powerless to make defense against the foreign power thus as-
saulted, and if independent of this Government it would never
venture to perform or permit the performance of the acts com-
plained of. The entire power and the whole duty to protect the
offending city or the offending community lies in the hands of
the United States Government. It is unthinkable that we should
continue a policy under which a given locality may be allowed
to commit a crime against a friendly nation, and the United States
Government limited, not to preventing the commission of the
crime, but, in the last resort, to defending the people who have
committed it against the consequences of their own wrong-
doing."9
§ 480. Claims made by the United States.— The United States
has in many instances made demands upon foreigri governments
for redress and indemnity for outrages committed on American
citizens. Mr. Everett, as Secretary of State, maintained in 1853
that the government of Chile was responsible to the United States
for the spoliation of property, by officers of Chile, belonging to
citizens of the United States.10
Mr. Adee, Acting Secretary of State, in a letter to the Italian
Ambassador, declared: "The general rule of international law ob-
served by the United States is that sovereigns are not liable in
diplomatic procedure for damages occasioned by the misconduct
of petty officials, and agents acting out of the range not only of
their real, but of their apparent authority." n
§ 481. Official interference limited to tortious acts. — It has
been the practice of the United States to limit its official interfer-
ence for the recovery of indemnity from foreign governments to
9 Cong. Eecord, vol. 41, No. 2, to Mr- Carcallo, February 23, 1853,
MS. Notes to Chile, VI, 65.
Dec. 4, 1906, p. 32. „ ^ ^ ^ ^
'• Mr. Everett, Secretary of State, 452) No_ ^ Angust 14_ J900
479 OFFICIAL INTERFERENCE LIMITED TO TORTIOUS ACTS. [§ 481
tortious acts committed under their authority against the persons
and property of its citizens. In the case of contracts, a different
rule is observed. Where it is claimed that a contract has been
violated, the practice has been not to interfere, unless the cir-
cumstances are extremely peculiar. Even then restrictions are
confined to instructing the diplomatic agents of this country to
use their good offices in behalf of the American citizens concerned.
Mr. Marcy, Secretary of State, writing to Mr. Clay, Minister
to Peru, in 1855 asserted that without specific instructions no
diplomatic agent of the United States ought to take part officially
in alleged breaches by a foreign government of contracts with
citizens of the United States, and stated that the reason for the
course was obvious. "It does not comport with the dignity of
any government to make a demand upon another which might
not ultimately, on its face, warrant a resort to force for the pur-
pose of compelling a compliance with it. Such a course cannot,
under this Government, be adopted without authority from Con-
gress, and it is almost impossible to imagine any contract or any
circumstances attending the infraction of one by a foreign govern-
ment which would induce Congress to confer such an authority
upon the President. ' ' 12
And Mr. Buchanan, Secretary of State, said: "Our citizens
go abroad over the whole world and enter into contracts with
all foreign governments. In doing this they must estimate the
character of those with whom they contract and assume the
risk of their ability and will to execute their contracts. Upon
a different principle, it would become the duty of the Govern-
ment of our country to enforce the payment of loans made by
ts citizens and subjects to the government of another country.
This might prove exceedingly inconvenient to some of the States
of this Union, as well as to other sovereign States. ' ' 13
2 MS. Inst. Peru, XV, 159, May of wrong and injury to persons and
24, 1855; 6 Moore Int. L. D. 709. property, such as the common law
13 Mr. Buchanan to Mr. Ten Eyck, denominates torts and regards as in-
yommissioner to Hawaii August 28, flicted by force, and not the result
1848, MS. Inst. Hawaii, II, 1; 6 of voluntary engagements or con-
Moore Int. L. D. 709. Mr. Pish, tracts.
Secretary of State, said: "Our long- "In cases founded upon contract,
settled policy and practice has been the practice of this Government is to
to decline the formal intervention confine itself to allowing its minister
of the Government except in cases to exert his friendly good offices in
482] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 480
§ 482. Rules of Department of State.— Mr. Bayard, while
Secretary of State, declared that an appeal by one sovereign on
behalf of a subject to secure from another sovereign the pay-
ment of a debt claimed as due to such subject was the exercise
of a very delicate and peculiar prerogative, ''which, by prin-
ciples definitely settled in this Department, is placed under the
following limitations :
"1. All that our Government undertakes, when the claim is
merely contractual, is to interpose its good offices ; in other words,
to ask the attention of the foreign sovereign to the claim; and
this is only done when the claim is one suspectible of strong and
clear proof.
"2. If the sovereign appealed to denies the validity of the
claim or refuses its payment, the matter drops, since it is not con-
sistent with the dignity of the United States to press, after such
a refusal or denial, a contractual claim for the repudiation of
which, by the law of nations, there is no redress
"3. When the alleged debtor sovereign declares that his courts
are open to the pursuit of the claim, this by itself is a ground
commending the claim to the equi-
table consideration of the debtor
without committing his own Gov-
ernment to any ulterior proceed-
ings." Letter to Mr. Miller, May
16, 1871, MS. Dom. Let. 348. And
again he said: "It is not the policy
or the practice of this Department
to interpose, as a matter of right, to
press upon foreign governments
claims of its citizens growing out
of the nonfillment of private con-
tracts. It does not, however, with-
held the exercise of the good offices
of its representatives in countries
where such claims originate, in man-
ifest instances of injustice to citi-
zens deserving its aid; and you are
directed, therefore, in that sense, to
bring the matter before the minister
for foreign affairs of Japan, with an
expression of the strong hope on the
part of this Government that ample
justice may be done to the claimant.
"There is one consideration which
inspires this Government with a
deeper interest in cases of this de-
scription occurring in Japan than
would be entertained concerning
similar cases in some other countries,
and that is that those foreigners whose
services have been engaged by that
judicious Government to impart to
its officers and people a knowledge
of the arts and sciences as a means
of perfecting that development
which has been so auspiciously be-
gun, may receive such prompt and
ample fulfillment of the engagements
made by the authorities employing
them as will serve as an encourage-
ment to others so employed or to be
employed, and that thus they may
labor with zeal and confidence, and
that the national progress may be
thereby accelerated and assured."
To Mr. Shepard, March 19, 1872, MS.
Inst. Japan, I, 502.
481 REDRESS FOR INJURIES WHEELOCK *S CASE. [§ 483
for a refusal to interpose. Since the establishment of the Court
of Claims, for instance, the Government of the United States re-
mands all claims held abroad, as well as at home, to the action
of that court, and declines to accept for its executive depart-
ment cognizance of matters which by its own system it assigns to
the judiciary.
"4. When this Department has been appealed to for diplo-
matic intervention of this class, and this intervention is refused,
this refusal is regarded as final unless after-discovered evidence
be presented which, under the ordinary rules applied by the
courts in motions for a new trial, ought to change the result, or
unless fraud be shown in the concoction of the decision. ' ' 14
§ 483. Redress for injuries— Wheelock's case.— While the
United States will not interfere except under peculiar circum-
stances in the collection of debts or in matters of a purely con-
tractual nature, yet where injuries or outrages have been com-
mitted upon American citizens, the United States has in several
<3ases sought redress. An American citizen, John E. Wheelock,
was arrested in 1879 in Venezuela by an officer who combined in
himself the function of a magistrate and a police constable. The
arrest was made upon the complaint of an Italian subject who
charged Wheelock with having stolen a sum of money from the
former's safe, but when the case came on for hearing before the
district court, Wheelock was honorably acquitted, and the judge
14 Mr. Bayard, Secretary of State, they were entitled to demand a fair
to Mr. Bispham, June 24, 1885, 156 examination by an impartial tri-
MS. Dom. Let. 88; 6 Moore Int. bunal.. It was said that it was im-
L. D. 716. In 6 Moore's Interna- possible to define in advance and
tional Law Digest, 717-740, section with precision, those cases in which
996, will be found a list of instances the national power might be exercised
where diplomacy was held to be the for the relief of American citizens,
only method of redress. In some of and that such intervention would
these the United States claimed that rarely be necessary in countries
it had the right to compel other where well-defined and established
governments to act in good faith laws are in operation, but that where
toward American citizens, and in- these elements of confidence and
sisted that no action should be taken security do not exist, the United
depriving these citizens of their Plates is called upon to be more vig-
rights except in due course of law, ilant in watching over its citizens,
through judicial tribunals, and that
Treaties — 31
§ 484] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 482
declared that not even a ground of suspicion existed against him.
The constable who made the arrest, it appeared, caused Whee-
loek's arms to be pinioned and subsequently inflicted upon him
various tortures with the object of compelling him to make a
confession. After the termination of the case, Wheelock at-
tempted to make a claim against Venezuela for $50,000. The
United States refrained, for the time being, from making a formal
demand for reparation, but expressed the hope that the sense of
justice and equity of the government of Venezuela would lead it to
dispose of the question immediately and justly. The Venezuelan
government declared that it did not owe any pecuniary lia-
bility to Wheelock, and that it had been determined by its judi-
cial officers that there was no ground for continuing proceedings
against the constable, nor for ordering his arrest. It stated
that a new investigation had been ordered, but thought that
even if a crime had been committed, the obligation of Venezuela
would be discharged by his condemnation and punishment. It
was admitted on the part of the United States that, as a gen-
eral principle, the obligations of a government were satisfied by
the condemnation and punishment of the perpetrator of a crime,
but that this principle could not be applied to the proceedings
against the Venezuelan constable, for there was every reason to
believe that his vindication, the evidence of Wheelock not be-
ing adduced, was based solely on his own testimony and that of
his subordinates, and in effect there was an absolute denial of
justice.
§ 484. Offer of settlement. — Finally an offer of $6,000 was
made by the Venezuelan Minister in settlement of the contro-
versy, the Minister declaring that the payment was made out of
pure deference to the people of the United States, and that his
government was not to be understood as acknowledging the prec-
edent that any person considering "himself injured or ag-
grieved by the acts of public functionaries, and still less by those
of private individuals of the nation, may disregard the ordinary
means of redress — i. e., the competent courts of the country—
and have direct recourse to the diplomatic interference of his
government as a means of securing reparation." Mr. Bayard
stated that "As sovereign States, both the United States and
483 CASE OF WILLIAM WILSON. [§ 485
Venezuela have the undoubted right to be satisfied, each for it-
self, that no wrong done to its citizens by the other passes un-
redressed; and neither sovereign can rightly be expected to
recognize validity as attaching to the municipal enactments of
the one which may assume to bar the exercise of the rights given
by international law to the other." He intimated that the ob-
ject which the two governments had in view was to reach a
" practical adjustment" of the dispute.15
§ 485. Case of William Wilson. — William Wilson, a citizen of
the United States, was shot without provocation by the acting
governor of Roma, Norberto Arguello, at Bluefields, Nicaragua,
in March, 1894. One of the policemen of the acting governor
participated in the murder. It appeared from the evidence that
Wilson had received severe treatment from his assailants. Prom-
ises were made by the superior agents of Nicaragua that the mur-
derer would be arrested and punished, but these promises were
not fulfilled. The United States demanded of the government of
Nicaragua that it should show its disapproval of the action of its
officers; that an immediate trial of Arguello should be had; that
Governor Torres, who was his protector, should be discharged
from office; that the accomplice of the murderer should re-
ceive proper punishment, and that such measures should be
taken by the government of Nicaragua as should clearly show its
purpose and ability to protect the lives and interests of Ameri-
can citizens living in the reservation, and should manifest its
intent to punish crimes committed against citizens of the United
States. The arrest of Arguello was effected, but he escaped, and
the government of Nicaragua promised that all efforts would be
made to secure his recapture. A demand was also made that one
Lacayo, a commissioner to the Mosquito reservation, should be
removed from office, as he was considered even more deserving
of blame than Torres. The Nicaraguan government removed
Torres, but alleged that Lacayo had performed his full duty, and
asked that the demand for his removal be withdrawn, and as-
serted that efforts would be made for the recapture of Arguello,
15 Mr. Soteldo to Mr. Bayard, Mr. Bayard to Mr. Soteldo, July 7,
April 2, 1885, For. Eel. 1885, 930; 1885, Id. 934; 6 Moore's Int. L. D.,
Same to same, June 29, 1885, Id. 933; sec. 1001.
§§ 486, 487] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 484
and that it had been ordered that the policeman who was his
accomplice should be placed on trial.16
§ 486. Zambrano's case. — The employer of a Mexican named
Zambrano charged him with having stolen and pawned a fowling-
piece, and while they were proceeding on their way to the pawn-
shop they met one McKenzie, a ranger, whom the employer re-
quested to accompany them with a view of the probable arrest
of the Mexican. The latter confessed the theft while at the
pawnshop but subsequently sought to flee, and when he had pro-
ceeded as far as six or eight paces the ranger fired at him three
shots, one of which entered his shoulder and another his neck.
The wounded man was taken to the prison, where the city physi-
cian cared for him. He made a confession at his trial, but re-
'
ceived only five days' imprisonment, the court taking into con-
sideration his former misfortune and detention. Allegations
were made that the ranger had no lawful right to fire, and that
the firing was not necessary to effect his capture, but the grand
jury, after hearing the evidence, concluded to return no indict-
ment, and in the ranger's behalf it was asserted that he was
partially lame and at considerable disadvantage in attempting to
apprehend an escaping prisoner. Complaint w^as officially made
by the Mexican government of the treatment of Zambrano and!
an indemnity was demanded. The United States, placing its ac-
tion on the ground that the authorities had failed to try and
punish the ranger for the unlawful shooting of the Mexican, of-
fered to the Mexican government an indemnity of $500. This
offer the Mexican government accepted.17
§ 487. Case of Dr. Shipley. — A member of the Turkish po-
lice in August, 1903, at Smyrna, attacked, wounded and robbed
Dr. Shipley, a citizen of the United States, who was visiting that
place, and during the commission of the outrage another mem-
ber of the police force looked on but rendered no assistance
The attention of the Turkish government was called to the oc-
currence, and finally the commandant of the police at Smyrna
made a full and formal apology to the American consul and alsc
18 Mr. Gresham, Secretary of State, For. Eel. 1894, 470, 475-477; (
to Mr. Baker, Minister to Nicaragua, Moore Int. L. D. 746.
May 12, 1894, For. Eel. 1894, 468; " For. Eel. 1904, 473, 482.
485 GROUNDS FOR INTERFERENCE. [ § 488
to Dr. Shipley, whose claim for the property of which he was
robbed was paid in full. Upon this being done, the United States
declared the incident to be closed.18
§ 488. Grounds for interference. — The United States, in its
diplomatic policy, proceeds upon the principle that a nation ought
not to interfere in the causes or controversies of its citizens
brought before foreign tribunals, except in case of a denial of
justice or in a case of palpable injustice.19 As stated by Mr.
Jefferson when Secretary of State, "A foreigner, before he ap-
» plies for extraordinary interposition, should use his best en-
deavors to obtain the justice he claims from the ordinary tribu-
nals of the country. ' ' 20 Or, in the language of Mr. McLane,
Secretary of State: "Although a government is bound to pro-
tect its citizens, and see that their injuries are redressed, where
justice is plainly refused them by a foreign nation, yet this
obligation always presupposes a resort, in the first instance, to
\ the ordinary means of defence, or reparation, which are afforded
"\ by the laws of the country in which their rights are infringed,
to which laAvs they have voluntarily subjected themselves, by
entering within the sphere of their operation, and by which they
must consent to abide. It would be an unreasonable and op-
pressive burden upon the intercourse between nations, that they
should be compelled to investigate and determine, in the first
instance, every personal offence committed by the citizens of the
one against those of the other."21
"In international law, justice may be denied," says Sir Traver
TAVISS, "(1) By the refusal of a nation either to entertain the
complaint at all, or to allow the right to be established before
its tribunals; (2) or by studied delays and impediments, for
which no good reason can be given, and which are in effect
equivalent to a refusal; or (3) by an evidently unjust and par-
tial decision. ' ' 22
18 For. Eel. 1903, 733; 6 Moore 21 To Mr. Shain, May 28, 1834, 26
Int. L. D. 747. MS. Dom. Let. 263.
19 Bradford, 1 Op. Atty. Gen. 53. - Law of Nations, pt. 1, p. 36.
20 To the British Minister, April
18, 1793, 5 MS. Dom. Let. 88.
§ 489] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 486
§ 489. Courts open for redress. — Intervention through diplo-
matic channels will not be made when the courts of a country
are open for the redress of claims to property.23 The United
States will not consider, as grounds of interference, irregularities
in the prosecution of an American citizen in Chile, not amounting
to a denial of justice, or an undue discrimination against him as
an alien.24 But should a Chilean court refuse to hear testimony
on behalf of an American citizen on trial for crime, and such
refusal should be sustained by the Chilean government, the
United States would consider such refusal as " a gross outrage to
an American citizen, for which it will assuredly, hold Chile re-
sponsible."25
23 Mr. Foster, Secretary of State,
to Mr. Mulcahy, February 21, 1893,
190 MS. Dom. Let. 406.
24 Mr. Marey, Secretary of State,
to Mr. Starkevedther, August 24,
1855, MS. Inst. Chile, XV, 124.
25 Mr. Conrad, Acting Secretary of
State, to Mr. Peyton, charge to
Chile, October 12, 1852, MS. Inst.
Chile, XV, 93. Mr. Gresham, Secre-
tary of State, in an instruction to
Mr. Eyan, Minister to Mexico, April
26, 1893 (MS. Inst. Mex. XXIII,
359), said: "Where complete recip-
rocal international equality is rec-
ognized, as it is fully recognized
between the United States and Mex-
ico, a necessary consequence there-
of is that each country must as a
rule admit the competency and the
disposition of the courts of the other
country to do complete justice to all
litigants properly subject to their
jurisdiction, regardless of national-
ity. This presumption in favor of
the competency and the integrity of
the courts is very strong and is not
to be lightly ignored upon the ap-
plication of disappointed litigants,
seeking for diplomatic intervention.
It is not meant to say that a pal-
pable denial of justice to citizens
of one country in the courts of the
other, may not in extreme cases be
made the subject of international
demands. But the circumstances
which may sanction diplomatic in-
tervention as a matter of right in
such cases, must be very cogent in
order to overcome the presumption
above referred to. This Depart-
ment, moreover, entertains the
opinion that something of an un-
usual character must have occurred
to warrant even the use of the good
offices or mere unofficial requests of
our diplomatic representatives with
foreign governments in behalf of
American citizens, litigants in their
courts. The bare fact of an ad-
verse decision will not warrant it,
and in all cases judicial remedies
must be exhausted by appeal or
otherwise, before executive inter-
ference is asked. The difficulties
which would exist in the way of any
executive action in this country, for
the correction of alleged delinquen-
cies in the conduct of the judicial
tribunals should always be borne in
mind. ' '
In a note to Mr. Ten Eyck, Com-
missioner to Hawaii, August 28,
1848, MS. Inst. Hawaii, II, 1, Mr.
487
MONTIJO CONTROVERSY.
[§ 490
^ 490. Montijo controversy. — While the steamer "Montijo,"
which was owned by citizens of the United States, was on a
voyage to Panama, she was, on April 6, 1871, seized and at-
tacked by certain persons engaged in a revolution. The claims
of the owners for reparation were referred to arbitration, and
" among- other defenses urged was, that the act was committed by
the state of Panama, and not by the United States of Colombia.
Buchanan, Secretary of the State,
said: "In regard to the jurisdiction
of the courts of independent nations
over American citizens resident
within their limits, it became neces-
sary for me, on the 1st of February,
1848, to address a note to Mr. Osma
the minister from Peru, which also
received the sanction of the Presi-
dent and Cabinet. From it I make
the following extract. ' Citizens of
the United States whilst residing in
Peru are subject to its laws' and the
treaties existing between the par-
ties, and are amenable to its courts
of justice for any crimes or offenses
which they may commit. It is the
provinc.e of the judiciary to construe
and administer the laws, and if this
be done promptly and impartially
towards American citizens and with
a just regard to their rights they
have no cause of complaint. In
such cases they have no right to
appeal for redress to the diplomatic
representative of their country, nor
ought he to regard their complaints.
It is only where justice has been
denied or unreasonably delayed by
the courts of justice of foreign
countries — where these are used as
instruments to oppress American
citizens or to deprive them of their
just rights — that they are war-
ranted in appealing to their gov-
ernment to interpose.' All these
are ancient and well-established prin-
ciples of public law; and the quota-
tions are made merely to show that
they have received the formal senc-
tion of this government."
Mr. Marcy, Secretary of State,
speaking of the criminal procedure
of Austria (MS. Inst. Austria, I,
105), said: "The system of proceed-
ing in criminal cases in the Austrian
government has, undoubtedly, as is
the case in most other absolute coun-
tries, many harsh features, and is de-
ficient in many safeguards which our
laws provide for the security of the
accused; but it is not within the
competence of one independent
power to reform the jurisdiction of
others, nor has it the right to regard
as an injury the application of the
judicial system and established
modes of proceedings in foreign
countries to its citizens when fairly
brought under their operation. All
we can ask of Austria, and this we
can demand as a right, is that, in
her proceedings against American
citizens prosecuted for offenses com-
mitted within her jurisdiction, she
should give them the full and fair
benefit of her system, such as it is,
and deal with them as she does with
her own subjects or those of other
foreign powers. She cannot be
asked to modify her mode of pro-
.ceedings to suit our views, or to ex-
tend to our citizens all the advan-
tages which her subjects would have
under our better and more humane
system of criminal jurisprudence. ' '
§§ 491, 492] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 488
Mr. Fish, Secretary of State, in a note to the American Minister,
said that the seizure was a piratical act, "for which it is expected
that the authors will be held to be judicially accountable. The
treaty stipulates that no such seizure shall be made, even by the
Colombian authorities, without just compensation to the aggrieved
parties. When, therefore, such an act is committed in the waters
of that republic by unauthorized persons, the obligation of that
government to make amends therefor may be regarded as un-
questionable. You will accordingly apply for reparation in this
case. ' ' x The controversy was finally submitted to arbitration.
There was a disagreement as to liability between the arbitrators,
and the final decision was rendered by the umpire, who, on July
25, 1875, rendered an award in favor of the claimants for $33,401.27
§ 491. Federal government of Colombia responsible for acts
of states. — One of the reasons advanced by Colombia to escape
lability was that the government of the Union could not be held
answerable for the failure of the state of Panama to compensate
the owners, because the Colombian government had no connection
with private debts, especially with those having a vicious origin.
To this contention the umpire replied that in his opinion the
government of the Union had "a very clear and decided connec-
tion with the debts incurred by the states of the Union toward
foreigners whose treaty rights have been invaded or attacked;
and, secondly, that the debts so incurred by the separate states
are in no way private, but, on the contrary, entirely public in
their character." He said that it was true that treaties author-
izing the residence of foreigners in Colombia, and defining and
assuring their rights during such residence, were made with the
general government, and not with the separate states of which
the Union is composed.
§ 492. Same practice in the United States. — The same prac-
tice, he said, prevailed in the United States, in Switzerland, and
in all countries in which the federal system is adopted. He held
that if a treaty stipulation were violated, "it is evident that a
recourse must be had to the entity with which the international
engagements were made. There is no one else to whom appli-
" For. Bel. 1871, 230. 2T 2 Moore Js Int. Arb., 1427.
489 PRACTICE IN UNITED STATES. [§ 493
cation can be directed. For treaty purposes the separate states
are nonexistent; they have parted with a certain defined portion
; of their inherent sovereignty, and can only be dealt with through
their accredited representative or delegate, the federal or general
government." He stated, however, that admitting that this is
the theory and the practice of the federal system, "it is equally
clear that the duty of addressing the general government carries
with it the right to claim from that government, and from it
alone, the fulfillment of the international pact. If a manifest
wrong be committed by a separate state, no diplomatic remon-
strance can be addressed to it. It is true that in such a case
the resident consular officer of a foreign power may call the
attention of the transgressing state to the consequences of its
action, and may endeavor by timely and friendly intervention on
the spot to avoid the necessity of an ultimate application to the
general government through the customary diplomatic channel;
but should this overture fail, there remains no remedy but the in-
terference of the federal power, which is bound to redress the
wrong', and, if necessary, compensate the injured foreigner." He
concluded by remarking that if this rule be correctly laid down,
"It follows that in every case of international wrong the general
government of this republic has a very close connection with the
proceedings of the separate States of the Union. As it, and it
alone, is responsible to foreign nations, it is bound to show in
every case that it has done its best to obtain satisfaction from the
aggressor."
§ 493. Constitution of Colombia prohibiting interference with
states. — The argument was made in that controversy that by the
Constitution of Colombia, the federal power was prohibited from
interfering in the domestic disturbances of the states, and that it
could not justly be made accountable for acts for which it had
not the power, under the fundamental powers of that country, to
prevent or punish. To this contention the umpire replied "that
in such a case a treaty is superior to the Constitution, which
latter must give way. The legislation of the republic must be
adapted to the treaty, not the treaty to the laws. This constantly
happens in engagements between separate and independent na-
tions. For the purposes of carrying out the stipulations of a
treaty, special laws are required. They are made ad hoc, even
§§ 494, 495] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 490
though they may extend to foreigners' privileges and immunities
which the subjects or citizens of one or both of the treaty-making
powers do not enjoy at home.
"That under such a rule apparent injustice may occasionally
be committed is probably true. But it is more apparent than real.
It may seem at first sight unfair to make the federal power, and
through it the taxpayers of the country, responsible, morally and
pecuniarily, for events over which they have no control, and
which they probably disapprove or disavow, but the injustice
disappears when this inconvenience is found to be inseparable
from the federal system. If a nation deliberately adopts that
form of administering its public affairs, it does so with the full
knowledge of the consequences it entails. It calculates the
advantages and the drawbacks, and cannot complain if the latter
now and then make themselves felt. ' ' 28
§ 494. An embarrassing precedent. — The United States has
consistently disavowed responsibility for acts committed against
foreigners by the inhabitants of a state, claiming that it has no
power to prevent such acts, and they are purely matters of
state cognizance. Nations, however, whose subjects have been
the victims of such attacks can look to none but the national
government for redress, and have insisted that it was the duty
of the federal government to make reparation. It may be that
the decision in the Montijo case will be regarded at some time
as an embarrassing precedent, when the contention is made that
the federal government is liable in no sense for an act committed
within a state against foreigners possessing treaty rights.
§ 495. Department of State not a court of error. — Errors in
the legal proceedings not amounting to a denial of justice are
not a ground for diplomatic intervention. As stated in 1886 by
Mr. Bayard, Secretary of State, in a letter addressed to Mr.
Morrow, member of Congress: "When application is made to
this department for redress for the supposed injurious actions
of a foreign judicial tribunal, such application can only be sus-
tained on one of two grounds: (1) Undue discrimination against
the petitioner as a citizen of the United States in breach of treaty
28 2 Moore's Int. Arb., 1439.
491 DEMANDS UPON THE UNITED STATES. [§§ 496, 497
obligations, or (2) violation of those rules for the maintenance
of justice in judicial enquiries which are sanctioned by inter-
national law. There is no proof presented in Captain Caleb's
case establishing either of these conditions. It is true that it is
alleged that there was a failure of justice, and were this Depart-
ment sitting as a court of error, it is not improbable that there
are points in the proceedings complained of in the Mexican ad-
judication before us which might call for reversal. But this
Department is not a tribunal for the revision of foreign courts
of justice, and it has been uniformly held by us that mistakes
of law, or even of facts, by such tribunals, are not grounds for
our interposition unless they are in conflict, as above stated, either
with treaty obligations to citizens of the United States or settled
principles of international law in respect to the administration
of justice."29
§ 496. Demands upon the United States. — There is no statute
of the United States, as we have seen, making it a crime to
attack a foreigner residing in the United States, who is pro-
tected by the provisions of a treaty, and the offense is crime only
against the laws of the state in which the act was committed.
But a treaty is made by the United States in its sovereign
capacity as a nation, and no treaty can be made by an individual
state with a foreign power. A foreign nation is compelled to
answer for the wrongful conduct of its citizens toward others,
and where a similar act is committed in the United States, that
nation looks to the federal government for redress. The United
States has uniformly denied its liability, but has in many instances
paid an indemnity for outrages committed upon the subjects of
other nations. Some of these cases we shall proceed to notice.
§ 497. Destruction of French privateers at Savannah. — The
French privateers "La Franchise" and "La Vengeance" were in
the port of Savannah, Georgia, and on November 15, 1811, some
of their seamen engaged in a quarrel with some American sailors
in a house of ill-fame. One of the Americans was killed and a
French seaman was fatally wounded. As a consequence a mob
arose, which set fire to and destroyed the privateers and killed
29 159 MS. Dom. Let. 99.
§§ 498, 499] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 492
several of the French seamen, in spite of the efforts of the police
and military authorities to prevent it. The French minister
at Washington considered the attack thus made as one upon the
flag of France, and although the state of Georgia was willing
and offered to make reparation, he demanded that the guilty be
prosecuted and exemplarily punished, that satisfaction be ten-
dered £or insult to the flag, and that an indemnity of 170,000
francs be given to the owners of the vessels.
§ 498. Contention of France. — It was contended on the part
of France that where damages are caused as the result of pop-
ular uprisings, the damages sustained are to be compensated for
either by the district in which they were received, or by the
government of the country, which, it was claimed, should secure
strangers from acts of violence of this character, as they assume
the nature of public acts on account of the number of persons
engaged. Our government stated that the case was manifestly
different from those in which the United States was then demand-
ing indemnity, where the injuries complained of were committed
under express orders of the government of France ; but, it was
added, that if on examination, there was found to be any ground
for a fair demand on the justice of the United States govern-
ment, it would no doubt make proper reparation. A demand
was also presented for 70,000 francs for the burning, on the
night of April 15, 1811, at Norfolk, Virginia, by a mob incited it
was asserted by false reports circulated against the vessel, and
it was stated that the offenders had remained unpunished.30
§ 499. Position of the United States. — Our government, in
response, stated that it had no information as to the case, but
that it seemed clear that there was no principle of public law
rendering the government responsible, inasmuch as the act appar-
ently was committed with "perfect secrecy under cover of the
night, excluding thereby all opportunity for the protective in-
terposition of the laws or of the public authority."31
All claims between the two countries were mutually settled
by the convention concluded July 4, 1831, by which it was re-
30 Count Sebastian! to Mr. Eives, 31 Mr. Eives to Count Sebastiani,
June 15, 1831, H. Ex. Doc. 147, 22 June 19, 1831, H. Ex. Doc. 22 Cong.
Cong. 2 Sess. 191. 2 Sess. 201, 203.
493 NEW ORLEANS AND KEY WEST RIOTS IN 1851. [§ 500
cited that in consideration of the payment of 1,500,000 francs the
United States was liberated from all claims either by France
or her citizens for supplies, accounts, or " unlawful seizures,
captures, detentions, arrests, or destruction of vessels, cargoes,
or their property. ' ' 32
§ 500. New Orleans and Key West riots in 1851.— The Spanish
authorities in Cuba captured a filibustering expedition, executed
some of the members and detained others as prisoners. On the
receipt of this news at New Orleans, on August 21, 1851, a Span-
ish paper published in that city, known as the "La Union,"
issued an extra giving an account of the transaction and com-
menting upon it. A mob attacked the newspaper office, prac-
tically destroying it, raided the Spanish consulate, and demol-
ished some Spanish coffee houses and tobacco stores. The paper
had, by placards posted up in the morning, been threatened with
an attack in the evening, but the raiding really took place be-
tween 3 and 4 o'clock in the afternoon, after the issue of the
extra. No police were present at the occurrence, and no arrests
followed. During the same afternoon, between 5 and 6 o'clock,
the office of the Spanish consul was attacked. The recorder,
accompanied by two or three police officers, went to the scene
and found the mob engaged in destroying furniture. The rioters,
under his persuasion, withdrew, but carried away with them the
consul's sign, wlrch they burned in a public square, and within
an hour afterward returned and forced their way again into
the office, which in the meantime had been nailed up but left
with no guard to protect it. On the second attack, the rioters,
without any interference from the municipal authorities, de-
stroyed all the furniture in the office, cast the archives of the
consulate into the street, defaced the portraits of the Queen of
Spain and of the captain-general of Cuba, and tore into pieces
the flag of Spain, which was in the office. During the night other
disturbances occurred and several of the rioters were arrested,
but apparently none who had participated in the attack upon the
consul's office. The outbreak was a sudden one, for which the
public authorities were not prepared. The police checked the
rioters wherever they made the attempt ; the mob made no violent
32 6 Moore's Int. Law Dig. 809; 23 MS. Dom. Let. 541.
§§ 501-503] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 494
resistance to the officers and did not attempt to rescue any per-
son arrested.
The consul sought refuge in the house of a friend, and later
departed for Havana, intrusting Spanish interests to the British
and French consuls. Complaint was made by the Spanish Min-
ister that protection was not given to the consul, but that he
was left to "the mercy of a ferocious rabble."
§ 501. Distinction between rights of consul and resident for-
eigners.— Mr. Webster drew a distinction between the rights of
a foreign consul, who is a public officer residing in the United
States under the protection of the government, and the rights
of foreigners who have come into this country to mingle with our
citizens and to pursue their private business. The consul, he
admitted, might claim special indemnity, while foreign residents
are entitled to such protection as is afforded to our own citizens.33
President Fillmore, in his message, laid before Congress the facts
and the extent of the pecuniary loss sustained by the consul,
so that it might make provision for such indemnity as a just
regard for the honor of the nation and the respect due to a
friendly power might seem to require. He also called attention
to the deficiency in the law in not providing sufficiently for the
protection or punishment of consuls.34
§ 502. Appropriation by Congress. — Congress, on August 31,
1852, appropriated $25,000 "to make compensation to the Span-
ish consul and other subjects of Spain residing at New Orleans
and subjects of Spain at Key West, for losses occasioned by
violence in the year 1851, arising from intelligence then recently
received at those places of the execution of certain persons at
Havana who had recently invaded the island of Cuba."35 The
President, however, by an act passed March 3, 1853, was requested
to investigate the losses in question, and payment should be made.
The act provided for such losses as he should certify to have
been suffered.36
§ 503. Explanations of appropriation. — The explanation given
by members of the Committee on Foreign Relations for making
33 6 Webster's Works, 509, 511. 35 10 U. S. Stats. 89.
34 Kichardson's Messages, V, 118. 36 10 Stats. 262, 263.
495 DAMAGES FOR DESTRUCTION OF PROPERTY. [§ 504
the appropriation for the private subjects of Spain was that
they wished to show a mark of courtesy and respect for the mag-
nanimity of the Queen of Spain in liberating those individuals
who had been captured in Cuba and held as prisoners, and per-
mitting them to return home after they had been sent across the
ocean. It may be remarked that provision is now made in the
Revised Statutes for the protection of public ministers.37
Mr. Webster, in his letter to Senor Calderon de la Barca,
Spanish Minister, said: "The assembling of mobs happens in all
countries; popular violences occasionally break out everywhere,
setting law at defiance, trampling on the rights of citizens and
private men, and sometimes on those of public officers, and the
agents of foreign governments especially entitled to protection.
In these cases the public faith and national honor require, not
only that such outrages should be disavowed, but also that the
perpetrators of them should be punished wherever it is possible
to bring them to justice; and further, that full satisfaction
should be made, in cases in which a duty to that effect rests with
the government, according to the general principles of law,
public faith, and the obligations of treaties."
§ 504. Damages for destruction of property. — Mr. Webster
referred to the opinion expressed by the Spanish minister that
not only ought indemnification be made to the consul for injury
and loss of property, but that reparation was also due from the
United States to those Spaniards residing in New Orleans whose
property the mob had injured or destroyed, and stated that while
the government had manifested a willingness and determination
to perform every duty which one friendly nation has a right to
expect from another in cases of this kind, it supposed that the
rights of the Spanish consul, who was a public officer residing
in the United States under the protection of the government,
were quite different from those of the Spanish subjects who had
come into the country to mingle with our citizens. * * The former, ' '
said he, "may claim special indemnity; the latter are entitled
to such protection as is afforded to our own citizens The
37 Eev. Stats., sees. 4062-4064; 1 Sess.; H. Ex. Doc. 32 Cong. 1 Sess.;
Cong. Globe 1851-52, vol. 24, pt. 2, 6 Moore 's Int. Law Dig. 815.
p 2341; H. Ex. Doc. 113, 32 Cong.
504] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE.
496
President is of opinion, as already stated, that, for obvious rea-
sons, the case of the consul is different, and that the Government
of the United States should provide for Mr. Laborde a just in-
demnity ; and a recommendation to that effect will be laid before
Congress at an early period of its approaching session. This is
all which it is in his power to do. The case may be a new one ;
but the President, being of opinion that Mr. Laborde ought to
be indemnified, has not thought it necessary to search for prece-
dents."38
38 Continuing, he said: "In his an-
nual message of December 2, 1851,
President Fillmore said: 'Ministers
and consuls of foreign nations are
the means and agents of communica-
tion between us and those nations,
and it is of the utmost importance
that while residing in the country
they should feel a perfect security
so long as they faithfully discharge
their respective duties and are guilty
of no violation of our laws. This
is the admitted law of nations and
no country has a deeper interest in
maintaining it than the United
States. Our commerce spreads over
every sea and visits every clime, and
our ministers and consuls are ap-
pointed to protect the interests of
that commerce as well as to guard
the peace of the country and main-
tain the honor of its flag. But how
can they discharge these duties un-
less they be themselves protected?
And if protected it must be by the
laws of the country in which they
reside. And what is due to our
own public functionaries residing
in foreign nations is exactly the
measure of what is due to the func-
tionaries of other governments re-
siding here. As in war the bearers
of flags of truce are sacred, or else
wars would be interminable, so in
peace ambassadors, public ministers,
and consuls, charged with friendly
national intercourse, are objects of
especial respect and protection, each
according to the rights belonging
to his rank and station. In view
of these important principles, it is
with deep mortification and regret
I announce to you that during the
excitement growing out of the exe-
cutions at Havana the office of her
Catholic Majesty's consul at New
Orleans was assailed by a mob, his
property destroyed, the Spanish flag
found in the office carried off and
torn in pieces, and he himself in-
duced to flee for his personal safety,
which he supposed to be in danger.
On receiving intelligence of these
events I forthwith directed the at-
torney of the United States, resid-
ing at New Orleans to inquire into
the facts and the extent of the pe-
cuniary loss sustained by the consul,
with intention of laying them before
you, that you might make provision
for such indemnity to him as a just
regard for the honor of the nation
and the respect which is due to a
friendly power might, in your judg-
ment, seem to require. The cor-
respondence upon this subject be-
tween the Secretary of State and her
Catholic Majesty's minister pleni-
potentiary is herewith transmitted.' "
497 THE STEAMER " CAROLINE. " [§§505,506
^ 505. The steamer "Caroline." — In 1837 an insurrection oc-
curred in Canada, and along the Canadian border there were
many manifestations of sympathy with the insurgent cause.
While the United States attempted strenuously to enforce the
neutrality laws, much difficulty was experienced in the attempt,
for the reason that the insurgents sought a refuge in the United
States when defeated. Speeches were made in various cities of
Xew York by the insurgent leaders, who appealed to the public
for volunteers and munitions of war. On the 29th of December of
that year a small steamer, the "Caroline," was destroyed, pre-
sumably by a Br^ish force on the Canadian side. Mr. Forsyth,
Secretary of State, wrote to the British Minister at Washington,
complaining of the destruction of property and the assassination
of American citizens on the soil of New York. In reply it was
stated that the "Caroline" was engaged in piracy, and that the
laws of the United States were not enforced along the frontier,
but were openly violated, and that the "Caroline" was destroyed
in necessary self-defense. A demand for reparation was made
May 22, 1838, by the American Minister of the United States at
London, and Lord Palmerston acknowledged its receipt, prom-
ising consideration.39
§ 506. Arrest of McLeod.— Alexander McLeod, while in an
intoxicated condition, had boasted of active participation in
the destruction of the vessel, and in March, 1841, he was ar-
rested in New York on a charge of murder. The British govern-
ment then assumed responsibility for the destruction of the
steamer, claiming that it was a public act of force in self-defense
by those engaged in the British service, and on this ground de-
manded the release of McLeod. McLeod was indicted, but on the
trial was acquitted on proof of an alibi. While the trial was in
progress he applied to a state court for a writ of habeas corpus, al-
leging that he acted in a governmental capacity, and that as
the controversy was in a state of adjustment by the diplomatic
representatives of the government concerned, he was not subject
to the local jurisdiction of the courts of New York. The court
denied the writ, and remanded him for trial, saying: "Diplomacy
39 See 1 Phillmore's Int. Law, 3d ed., 315; Hall's Int. Law, 4th ed.,
283.
Treaties — 32
§ 507] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 498
is not a judicial, but executive function, and the objection would
come with the same force whether it were urged against proceed-
ing in a court of this state, or the United States. Whether an
actual exertion of the treaty-making power, by the President
and Senate, or any power delegated to Congress by the federal
constitution, could work the consequences, contended for, we are
not called upon to inquire; whether the executive of the nation
(supposing the case to belong to the national court), or the ex-
ecutive of this state might not pardon the prisoner, or direct a
nolle prosequi to be entered, are considerations with which we
have nothing to do. The executive power is a%onstitutional de-
partment in this, as in every well-organized government, entirely
distinct from the judicial. And that would be so, were the na-
tional government blotted out, and the state of New York left to
take its place as an independent nation Up.on the principle
contended for, every accusation which has been drawn in ques-
tion by the executive power of two nations can be adjusted by
negotiation or war only. The individual must go free, no mat-
ter to what extent his case may have been misapprehended by
either power. No matter how criminal he may have been, if his
country, though acting on false representations of the case, may
have been led to approve of the transaction and negotiate con-
cerning it, the demands of criminal justice are at an end."
§ 507. Diplomatic action. — The case was finally disposed of
through diplomatic channels, it being admitted on the part of
the United States that the employment of force might have been
justifiable by the' necessity of self-defense, but the existence of
such necessity was denied, while on the part of Great Britain it
was maintained that an excuse for what took place was fur-
nished by the circumstances, but at the same time an apology
was made for the invasion of the territory of the United States.41
40 People v. McLeod, 25 Wend. 483, Doc. 183, 25 Cong. 3 Sess.; Message
37 Am. Dec. 328. of December 28, 1840, H. Ex. Doc.
41 H. Ex. Doc. 64, 25 Cong. 2 33, 26 Cong.. 2 Sess.; H. Beport, 162,
Sess.; H. Ex. Doc. 74, 25 Cong. 2 26 Cong. 2 Sess.; Message of March
Sess.; Message of April 4, 1838; 8, 1842, H. Ex. Doc. 128, 27 Cong.
H. Ex. Doc. 302, 25 Cong. 2 Sess.; 2 Sess.; Message of January 23, 1843,
Message of February 5, 1839, H. Ex. S. Ex. Doc. 99, 27 Cong. 3 Sess.
499 OPINION OP JOHN QUINCY ADAMS. [§§ 508, 509
§ 508. Opinion of John Quincy Adams. — Mr. John Quincy
Adams declared, in the House of Representatives, that he took it
that the "Caroline" was arrayed against the British government,
and that the parties concerned in it were employed in acts of
war against it, and that he did not subscribe to the opinion ex-
pressed by the court in New York that no act of war had been
committed. "Nor do I subscribe to it that every nation goes to
war only on issuing a declaration or proclamation of war. This
is not the fact. Nations often wage wars for years, without is-
suing any declaration of war. The question is not here upon a
declaration of war, but acts of war. And I say that in the
judgment of all impartial men of other nations, we shall be held
as a nation responsible; that the 'Caroline/ there, was in a
state of war against Great Britain; for purposes of war, and the
worst kind of war — to sustain an insurrection : I will not say
rebellion, because rebellion is a crime, and because I have heard
them talked of as patriots. " 42
§ 509. Principle of public law admitted. — Mr. Webster, Sec-
retary of State, in a note to Lord Ashburton, the British tylinis-
ter, said that the President saw, with pleasure, that he fully ad-
mitted those great principles of public law, applicable to cases of
this kind, which the government of the United States had ex-
pressed, "and that on your part, as on ours, respect for the in-
violable character of the territory of independent states is the
most essential foundation of civilization. And while it is ad-
mitted on both sides that there are exceptions to this rule, he is
gratified to find that your Lordship admits that such exceptions
must come within the limitations stated and the terms used in a
former communication from this department to the British pleni-
potentiary here. Undoubtedly it is just that, while it is ad-
mitted that exceptions growing out of the great law of self-de-
fense do exist, those exceptions should be confined to cases in
which the 'necessity of that self-defense is instant, overwhelming,
and leaving no choice of means, and no moment for deliberation. '
"Understanding these principles alike, the difference between
the two governments is only whether the facts in the case of the
; Caroline' makes out a case of such necessity for the purpose of
42 2 Benton's Thirty Years' View, 289.
§§ 510, 511] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 500
i
self-defense. Seeing that the transaction is not recent, having
happened in the time of one of his predecessors, seeing that your
Lordship, in the name of your government, solemnly declares
that no slight or disrespect was intended to the sovereign author-
ity of the United States; seeing that it is acknowledged that,
whether justifiable or not, there was yet a violation of the ter-
ritory of the United States, and that you are instructed to say
that your government consider that as a most serious occurrence ;
seeing, finally, that it is now admitted that an explanation and
apology for this violation was due at the time; the President is
content to receive these acknowledgments and assurances in the
conciliatory spirit which marks your Lordship's letter, and will
make this subject, as a complaint of violation of territory, the
topic of no further discussion between the two governments. ' ' 43
§ 510. Federal statute enacted. — There was no statute in ex-
istence at the time of the trial of McLeod by which the federal
government could prevent the trial in a state court of a person
who was acting, or claiming to act, under the direction of a for-
eign government. To give the federal courts the power to ex-
amine into such cases and, if the facts justified, to discharge on
habeas corpus, a statute was enacted conferring jurisdiction upon
the federal courts, and the substance of this statute is now found
in the Revised Statutes. It is provided that the several justices
and judges of the federal courts shall have power to grant writs
of habeas corpus, but that the writ shall in no case extend to a
prisoner in jail unless, "being a subject or citizen of a foreign
state, and domiciled therein/7 he "is in custody for an act done or
omitted under any alleged right, title, authority, privilege, pro-
tection, or exemption claimed under the commission or order,
or sanction of any foreign state, or under color thereof, the
validity and effect whereof depend upon the law of nations. ' ' 44
§ 511. Attacks on Chinese at Denver. — At Denver, Colorado,
on November 10, 1880, a lawless mob attacked certain Chinese
residents of that city, killed one and injured others, at the same
time destroying much of their property. The mob obtained a
mastery over the constituted authorities and at first directed their
43 6 Webster's Works, 301, 302. " Kev. Stats., sec. 753.
."01 VIEWS OF MR. EVAETS, SECRETARY OF STATE. [§§ 512, 513
attack against the peaceable and law-abiding citizens of the com-
munity. The Chinese Minister, in asking that the federal gov-
ernment should extend protection to the Chinese at Denver, and
to see that those guilty of the crime should be arrested and pun-
ished, also stated that "it would seem to be just that the own-
ers of property wantonly destroyed shall in some way be com-
pensated for their losses. ' '
§ 512. Views of Mr. Evarts, Secretary of State.— Mr. Evarts,
Secretary of State, while assuring the Chinese Minister that the
protection of the government would be fully given to Chinese
residents in the country to the same extent as it is afforded to
her own citizens, declared: "As to the arrest and punishment of
the guilty persons who composed the mob at Denver, I need only
.remind you that the powers of direct intervention on the part
of this Government are limited by the Constitution of the United
States. Under the limitations of that instrument, the Govern-
ment of the Federal Union cannot interfere in regard to the ad-
ministration or execution of the municipal laws of a State of the
Union, except under circumstances expressly provided for in the
Constitution. Such instances are confined to the case of a State
whose power is found inadequate to the enforcement of its munic-
ipal laws and the maintenance of its sovereign authority; and
even then the Federal authority can only be brought into opera-
tion in the particular state in response to a formal request from
the proper political authority of the State. It will thus be per-
ceived that so far as the arrest and punishment of the guilty
parties may be concerned, it is a matter which in the present
aspect of the case belongs exelusivery to the government and au-
thorities of the State of Colorado." 45
§ 513. Compensation to owners of property. — Mr. Evarts de-
dared, that frequently lawless persons banded together and made
up a force sufficient in power and numerical strength to defy
temporarily the power of the local authorities, and stated that
such incidents are peculiar to no country. In the case under
45 For. Eel. 1881, 319. Mr. Evarts citizens of Denver was the protec-
also called attention to the fact that tion and safety of the Chinese resi-
the first care of the authorities and dents.
§ 514] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 502
consideration, it appeared, he said, that the local authorities
brought into requisition all the means at their command for the
suppression of the mob, and that these means proved so effec-
tive that within a short time regular and lawful authority had
been restored and the mob subdued. Referring to the demand
for compensation, we can best give his views in his own language :
"Under circumstances of this nature when the Government has
put forth every legitimate effort to suppress a mob that threatens
or attacks alike the safety and security of its own citizens and
the foreign residents within its borders, I know of no principle
of national obligation, and there certainly is none arising from
treaty stipulation which renders it incumbent on the Govern-
ment of the United States to make indemnity to the Chinese resi-
dents of Denver, who in common with citizens of the United
States, at the time residents in that city, suffered losses from
the operations of the mob. Whatever remedies may be afforded
to the citizens of Colorado or to the citizens of the United States
from other States of the Union resident in Colorado for losses
resulting from that occurrence, are equally open to the Chinese
residents of Denver who may have suffered from the lawlessness
of the mob. This is all that the principles of international law
and the usages of national comity demand. ' '
Mr. Evarts said that the view just expressed proceeded upon
the proposition that Chinese residents were to receive the same
measure of protection and vindication under judicial and politi-
cal administration of their rights as citizens of this country,
and hence it was not necessary to discuss the extent or true
meaning of the treaty obligations on the part of the Government
to Chinese residents.46
§ 514. Attack on Chinese at Rock Springs. — A mob, number-
ing approximately one hundred and fifty persons, attacked, on
46 For. Rel. 1881, 319. Mr. Bayard, was maintained by Mr. Evarts and
Secretary of State, in a letter ad- by Mr. Elaine on December 30th,
dressed on June 1, 1885, to Mr. West, 1880, and March 25, 1881, when de-
British Minister, stated the proposi- dining to accept for the Executive
tion "that when the courts of jus- jurisdiction over a claim for dam-
tice are open to a foreigner in a ages to certain Chinese inflicted by
State, the Federal Executor will not a mob in Colorado in November,
take cognizance of his complaint, 1880." For. Eel. 1885, 150, 456.
503 . CASE OF TERRITORY. [§ 515
September 2, 1885, the Chinese settlement at Bock Springs, Wyom-
ing, ordered them to leave their homes, and before they were
given an opportunity to do so opened fire upon them, killed
twenty-eight and wounded fifteen more or less severely. Some
of these were shot while they were still in their houses, or while
they were attempting to run away from the rioters, who set fire
to the houses, and in consequence the entire Chinese village was
burned to the ground. The -amount of property destroyed or
appropriated by the rioters was placed at $147,748.74. United
States troops were sent to the scene after the massacre, thus
probably preventing a further loss of life and property. The
Chinese Minister, in his letter of complaint, stated that the at-
tack was unprovoked; that the civil authorities did not attempt
to prevent or suppress the riot; that the inquest held by them
was a burlesque ; and that there was no probability that any of
the offenders wrould ever be brought to punishment by the local
authorities. He asked for the punishment of the guilty, in-
demnity for all losses and injuries sustained, and the adoption
of suitable measures for the protection from similar attacks of
Chinese residing in Wyoming and elsewhere in the United States.
§ 515. Case of territory. — He referred to the doubts expressed
by Mr. Evarts and Mr. Blaine as to the obligation of the United
States to make pecuniary indemnity to the Chinese sufferers by
the mob at Denver, and claimed that the reasons advanced why
the federal government should not be liable when the acts oc-
curred within a state did not apply in the case of a territory,
but declared that there was a broader view, and called attention
to the fact that in 1858 the Chinese provincial and local authori-
ties had, upon the intervention of the diplomatic and consular
representatives of the United States, indemnified American citi-
zens in many cases for losses occasioned by riots and violence,
and that in that year a convention was agreed upon under which,
"in full liquidation of all claims of American citizens," the Chi-
nese government paid over to the United States the sum of
$735,258.97, which, it afterward transpired, was greater than the
amount of the claims, and the balance unexpended was returned
to China by the United States. This settlement included claims
for losses sustained by mob violence, robbery and other lawless
acts of individual Chinese subjects.
§ 516] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 504
§ 516. American demands on China. — The Chinese Minister
also adverted to the fact that since this settlement, the Ameri-
can diplomatic and consular representatives, acting under their
instructions, had constantly and uniformly intervened with the
Chinese Imperial and local authorities in all cases, coming to their
notice, of losses or injuries suffered by American citizens from
mob violence, and that the Chinese authorities were requested to
punish the ^offenders and also to make proper indemnity to the
American citizens for all their losses. The Chinese Government,
he said, had in such cases, either acting directly, or through the
local authorities, paid all losses caused by the burning or de-
struction of houses by mobs, and in some cases had compelled
the local authorities to rebuild or repair the houses injured or
destroyed. His government had also, he continued, made in-
demnity for petty thefts where those guilty were not known or
could not be. arrested, and had, in many other cases, caused the
return of money or the payment of indemnity. He also referred
to the action taken by the United States in the case of the riots
at New Orleans and Key West in 1850, when Congress author-
ized the indemnification of Spanish subjects for losses sustained,
and, while he admitted that this was done as a voluntary act
of goodwill, he claimed that it went to show the existence of
high principles of equity and national comity which rose above
the narrow limits of statutory law and which controlled the ac-
tions of nations; and suggested that if in the past a way had
been found by which the obstructions referred to by Secretaries
Evarts and Blaine had been overcome as to the subjects of other
nations, he did not doubt that a method equally efficacious would
be devised for the relief of the subjects of China.47
*T For. Eel. 1886, 101. He cited by the rioters to insure the future
instances where reparation had been security of American citizens. To
made, in one of which the United secure the return of sums as small
States government had sent its as seventy-three dollars stolen from
consuls and warships to demand the American citizens, the Minister
trial of rioters where a single plenipotentiary of the United
American had suffered loss amount- States had intervened with the im-
ing to less than five hundred dollars, perial government, and representa-
and had required the punishment of tives of our government had asked
the guilty in the presence of the for the destruction of points in the
representatives of the American gov- interior districts which were apt to
ernment, and the giving of bonds incite mob violence; the destruction
505 VIEWS OF MR. BAYARD, SECRETARY OF STATE. [§§ 517, 518
§ 517. Views of Mr. Bayard, Secretary of State.— Mr. Bayard,
Secretary of State, denied emphatically all liability to indemnify
individuals of any race or country for loss growing out of pub-
lic law, and he declared, with equal emphasis, "that just and
ample opportunity is given to all who suffer wrong and seek
reparation through the channels of justice as conducted by the
judicial branch of our Government." "The system of govern-
ment," he said, "prevailing in the United States and known to
China creates several departments, and where an act has not
been committed under official authority, in pursuance of govern-
mental orders, the question of reparation for losses to individ-
uals must be determined by the judicial branch." He added
that while all liability was disclaimed, and solely from a senti-
ment of generosity, it might reasonably be a subject for the benev-
olent consideration of Congress, with the distinct understand-
ing that no precedent should be created to grant pecuniary aid to
the sufferers to extent of the value of the property of which they
were deprived.48
§ 518. Incident devoid of national character. — Mr. Bayard
said, that on neither side was there any representative of the
government of China, or of the United States or of the territory
of Wyoming, and therefore the incident was devoid of both of-
ficial and national character. He referred to the attempt of the
Chinese Minister to show by argument and analogy that there
rested upon the United States a singular and exceptional obliga-
tion toward China reciprocal with the contractual obligations of
China with respect to citizens of the United States resorting
thither, and stated that before weighing this ad hominem argu-
ment, it was necessary to know where the conventional argu-
ment actually places us, and proceeded :
"The several treaties of 1844, 1858, 1868, and 1880 are acts
in pari materia, and no subsequent one of them abrogates those
of block type and the punishment from a European or American state
of those having it in possession. under the rules of the equitable code
These acts of intervention, he said, regulating the intercourse of civil-
bad been independent of any treaty ized nations.
stipulations to that effect, and that 48 For Eel. 1886, 158; H. Ex. Doc.
it could not be believed in so doing 102, 49 Cong. 1 Sess.; Moore's Int.
that the United States had required Law Dig. 833.
of China what it would not expect
§ 519] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 506
which are prior in date. There have been successive modifica-
tions, extensions, or substitutions as to special subjects, but al-
ways in express revival and renewal of pre-existing treaties ; and,
unless abrogated in express terms or repealed impliedly by the
adoption of new and inconsistent features, they all remain in
force. Upon those premises, and passing all the personal and
residential stipulations in review, we find restrictions expressly
recognized throughout all the treaties which prove the inability
to provide reciprocity, by reasons of the totally variant basis on
which the administrative functions and powers of the two coun-
tries are conducted."
§ 519. China closed to residence. — Mr. Bayard called atten-
tion to the fact that until 1868 no right of immigration of Chinese
subjects to the United States was ever formally extended and
said: "None was, perhaps, needed, for, under our free, popular
Government, and in the absence of any restrictive legislation, our
territory was and is equally open to all aliens. It was altogether
different in China. That country was closed to alien residence
as by a wall. A specific right had to be conventionally created
before this exclusion could be modified. To certain classes of
citizens of the United States the treaty of 1844 granted carefully
restricted rights to visit and sojourn in China, but in every one
of the articles which treats of transient or permanent right of
residence appears the qualification that it is for the purposes of
trade."49
49 Continuing, he said: ll Article I 'lawful' commerce elsewhere spoken
applies to our citizens 'resorting to of in the treaty as having been upper-
China for the purposes of commerce.' most in the minds of the negotiators.
Article III permits Americans to fre- Not merely was the purpose of their
quent certain specified ports, 'and sojourn restricted, but citizens of the
to reside with their families and United States could not, under Article
trade there.' Article IV related to XVII, lawfully transgress certain
'citizens of the United States doing residential limits. Even within those
business at the said' ports. Article limits they were not free to select
V refers to 'citizens of the United the sites for their 'houses and places
States lawfully engaged in commerce.' of business, and also hospitals,
The important Article XIX, in regard churches and cemeteries.' The 'mer-
to protection, speaks of 'citizens of chants' of the United States were not
the United States in China peaceably to unreasonably insist on particular
attending to their affairs,' and by spots for those objects. Their resi-
' their affairs ' we may regard the dence was expressly conditioned on its
507
NO RECIPROCITY INTENDED.
[§ 520
§ 520. No reciprocity intended. — Mr. Bayard stated that in all
the years in which diplomatic relations had existed with China
there was no reciprocity of treatment of the citizens of one country
within the jurisdiction of the other, and he observed there could
not be, because the government of China had so restricted the
privileges which it conceded as to make reciprocity impossible on
being acceptable to the native inhabi-
tants. The treaty says, and I am sure
you will recognize the force of this
provision : ' The local authorities of
the two Governments shall select in
concert the sites for the foregoing
object, having due regard for the feel-
ings of the people in the location
thereof. '
' ' And of that found at the close of
the same Article XVII: 'And in
order to the preservation of the public
peace, the local officers of the Govern-
ment at each of the five ports shall, in
concert with the consuls, define the
limits beyond which it shall not be
lawful for citizens of the United
States to go.'
' ' The impracticability of maintain-
ing efficient police protection in many
portions of every widely extended do-
main was recognized by the Chinese
Government when they expressly
guarded against liability in the clos-
ing paragraph of Article XXIV of
the treaty of 1844, as follows: 'But
if, by reason of the extent of terri-
tory and numerous population of
China, it should in any case happen
that the robbers cannot be appre-
hended or the property only in part
recovered, then the law will take its
course in regard to the local au-
thorities, but the Chinese Government
will not make indemnity for the goods
lest.'
"Article XII of the treaty of 1858
if? a substantial reaffirmation of these
conditions. And it is to be noted
that this treaty of 1858, while re-
enacting many of the provisions of
that of 1841, and passing over others,
in no place intimates any enlarge-
ment of the residential class of un-
official American citizens to include
others than merchants and their
families within the narrow limits
aforesaid. Ten years later we find
the Burlingame treaty opening with
the significant declaration that the ob-
ject of preceding treaties has been
to give aliens certain restricted privi-
leges of resort and residence in par-
ticular localities 'for purposes of
trade.' Article V appears to extend
the purposes of residence and resort
by including ' curiosity ' as a motive ;
but even this extension is incidental
to the enunciation of a principle, so
that laws may be passed, not to guar-
antee 'free migration and emigra-
tion' without limit, but to prohibit
involuntary emigration — in other
words, to suppress the labor and
coolie traffic.
" Article VII permits Americans to
establish schools in China, and by
implication includes American teach-
ers in the classes admitted to re-
stricted residence. In this, as in
the other treaties, there is nothing to
offset the idea of continued restric-
tion, for Article VI, which gives to
citizens of the United States visiting
or residing in China, 'the same privi-
leges, immunities or exemptions in re-
spect to travel or residence as may
there be enjoyed by the citizens or
subjects of the most favored nation, '
neither creates nor extends any right
§ 520] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 508
the part of the United States, unless it should take the form of
retaliation, which he said, under our system of laws, was im-
practicable. The treaty of 1880, he declared, was absolutely
unilateral, and conveyed no hint of reciprocity. He called atten-
tion to the second article of this treaty, which gave to Chinese
teachers, students, merchants and those actuated by motives of
curiosity, and to the Chinese laborers, who, at that date, were
in the United States, the right to "go and come of their own
free will and accord," and in addition entitled them to the same
treatment as the citizens or subjects of the most favored nation,
and said: "I refrain from asking you to point out to me any re-
sponsive position in any of our treaties with China which guaran-
tees to American teachers, students, merchants, curiosity seekers,
and laborers the right to ' go and come of their own free will and
accord' throughout the length and breadth of China, 'without
regard to the feelings of the people' in the localities whither
they may resort. ' ' 50
ol' alien sojourn, but rather confirms
the announced determination of China
to reserve all such rights not ex-
pressly granted.
' ' To sum up, as the treaties stand,
American citizens not of diplomatic
or consular office may resort to China
for trade, for curiosity, or as teachers,
and then only to certain carefully
limited localities, ( having due regard
to the feelings of the people in the
location thereof. ' If the citizens or
subjects of any other power should be
granted other or greater privileges,
then the citizens of the United States
will have equal treatment.
"On the other hand, Chinese sub-
jects were at all times free between
1844 and 1868 to come to the United
States and travel or sojourn therein,
pursuing whatever lawful occupation
they might see fit to engage in, with-
out the need of treaty guaranty.
The sixth article of the Burlingame
treaty created no privilege in their
behalf; it simply recorded an existing
fact; for the Chinese were then as
free to visit and sojourn in the United
States as any other aliens were, and
no law of regulation or inhibition was
upon our statute-books."
50 He then continued: "Passing
from the question of reciprocity,
whether in its sentimental or con-
tractual aspects, to the question of
the actual guaranty stipulated by the
United States to Chinese of all classes,
including laborers within their juris-
djction, and of the responsibilities of
this Government in the matter, we
find that in the treaty of 1868, by
its sixth article, the United States
for the first time established, as a
treaty right, the theretofore con-
suetudinary privilege of emigration
of Chinese to this country. That
article says: 'Chinese subjects, visit-
ing or residing in the United States,
shall enjoy the same privileges, im-
munities and exemptions in respect to
travel or residence as may there be en-
joyed by the citizens or subjects of
the most favored nation. '
509 SYSTEM OF AMERICAN GOVERNMENT KNOWN TO CHINA. [§ 521
§ 521. System of American government known to China. — The
system of American government prevailing in the United States
written in its Constitution was known, said Mr. Bayard, to China,
at the time the treaties were entered into. Under this govern-
ment, several departments have been created, whose functions
are distinct. The judicial branch must settle the question of
liability for reparation or indemnity for losses to individuals in
' ' TMs is renewed, with definition
and limitation of the particular classes
of Chinese, to which it is applicable,
in the second article of the treaty of
1880. What is the substantial and
full intent and meaning of these pro-
visions as laid down in 1868, and
again with special definition in 1880?
What 'most favored nation' is to be
taken as a test and for the purpose of
comparing the rights of its citizens
or subjects in the United States with
those of China? To constitute a spe-
cial favor between nations it must
exist in virtue of treaty or law, and
be extended in terms to a particular
nation as a nation. Applying this
test, the citizens or subjects of no na-
tion (unless it be those of China)
have any special favor in the way of
personal treatment shown them in the
United States. All are treated alike,
the subjects of the most powerful na-
tions equally with others. An Eng-
lishman, a Frenchman, a German, a
Eussian, is neither more or less fav-
ored than one of any other nation-
ality.
< ' Tried by this test, will it be de-
nied that the public and local laws
throughout the United States make
no distinction or discrimination un-
favorable to any man by reason of
his Chinese nationality, except only
those Federal laws regulating, limit-
ing and suspending Chinese immigra-
tion which have been enacted in con-
formity with the express provisions of
the treaty of 1880?
"What are the duties of the Gov-
ernment of the United States under
that treaty towards Chinese subjects
within their jurisdiction?
' ' The Chinese subjects now in the
United States are certainly accorded
all the rights, privileges, immunities
and exemptions which pertain to the
citizens and subjects of the most fav-
ored nation, as is provided in the
second article of the treaty. They are
suffered to travel at will all over
the United States, to engage in any
lawful occupation, and to reside in
any quarter which they may select,
and there is no avenue to public jus-
tice or protection for their lives, their
commercial contracts, or their prop-
erty in any of its forms which is
not equally open to them as to the
citizens of our own "country.
' f The same laws are administered
bj the same tribunals to Chinese sub-
jects as to American citizens, save in
one respect, wherein the Chinese alien
is the more favored, since he has the
right of option in selecting either
a State or a Federal tribunal for the
trial of his rights, which, in many
cases, is denied for residential causes
to our own citizens; and he may even
at will remove his cause from a state
to a Federal court.
' ' Thus, I find in the public press
the announcement that Wing Hing,
on behalf of himself and others,
Chinese subjects, has lately brought
suit in the United States circuit court
to recover $132,000 from the city of
521] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 510
all cases where the act complained of has been committed under
official authority. He stated that "The doctrine of the nonlia-
bility of the United States for the acts of individuals committed
in violation of its laws is clear as to acts of its own citizens, and
a fortiori in respect of aliens who abuse the privilege accorded
them of residence in our midst by breaking the public peace and
infringing upon the right of others, and it has been correctly
and authoritatively laid down by my predecessors in office,"'
and to that doctrine, he stated, "The course of this government
furnishes no exception." Referring to the New Orleans riot of
1850, he said that nothing could be clearer than the enunciation
of the doctrine of the nonliability of the government. "While
denouncing such outrages as disgraceful and in criminal viola-
tion of law and order, it was emphatically denied that the acts
in question created any obligation on the part of the United
States, arising out of the good faith of nations toward each other,
for the losses thus occasioned by and to individuals. ' ' 51
Eureka, Humboldt County, California,
for loss of property by the action of
a mob in February of last year. A
citizen of that State would have been
compelled to resort to a State
tribunal, without appeal beyond the
jurisdiction of the State, whereas the
Chinese plaintiff in question can carry
his case on appeal to the Supreme
Court at Washington, thus divesting
his rights from all adverse chance of
local prejudice
1 ' The provision of an oiganized
and in some cases privileged forum
excludes the idea of direct recourse
by the alien to other means of ob-
taining justice or redress. Your note
argues that direct recourse to admin-
istrative or executive settlement is
open to citizens of the United States
in China, and instances are cited to
show this. Surely, this rather proves
that to the alien in China no such
judicial forum is secured as to aliens
in the United States.
"The extraterritorial tribunals es-
tablished for their own citizens or
subjects by all the powers in treaty
relations with China are, in principle
and from the reason of the thing,
incompetent to adjudicate questions
touching the liability of China to
aliens. In default of Chinese tri-
bunals admittedly competent to take
cognizance of the causes of for-
eigners, what alternative remains be-
sides denial of justice or resort to
diplomatic settlement ? ' '
51 Further discussing the subject he
proceeded : ' ' Neither is there a parity
between the Spanish incident of 1850
and the recent riot and massacre of
the Chinese at Rock Springs. The
essential feature of the first is wholly
wanting in the second. The emblem
of Spanish nationality had suffered
an affront in a city of the United
States. The special immunity at-
taching to the Spanish consular repre-
sentative had been impaired and he
subjected to personal indignity. The
incident occurred at a time when the
Spanish Government had just shown
its regard for and goodwill toward
511
PRESIDENT CLEVELAND'S SPECIAL MESSAGE.
[§ 522
§ 522. President Cleveland's special message. — President
Cleveland, in a special message on March 2, 1886, transmitted to
Congress the correspondence between the Secretary of State and
the Chinese Minister, and asked that body, in its high discre-
the United States in pardoning cer-
tain American citizens who had par-
ticipated in a hostile invasion of
Cuba, and had incurred the condemna-
tion of the authorities of that coun-
try. Recognizing the merciful action
of the Queen of Spain in this regard,
and as a responsive act of generosity
and friendship tending toward good
relationship, the President, while ex-
pressly denying the principle of na-
tional liability, recommended to Con-
gress the appropriation of certain
moneys to be paid to private in-
dividuals on account of the damages
caused by riots at New Orleans and
Key West, and to the Spanish consul
at New Orleans a special indemnity
as an official of Spain.
"In one thing, however, the Span-
ish riots of 1850 and the Rock
Springs massacre of 1885 are simi-
lar. Both grew out of alien animosi-
ties transplanted to our shores
But this has no bearing on the ques-
tion of the indemnity accorded to
Spain, which was, as you indeed
candidly admit in your note, 'a volun-
tary act of goodwill above and be-
yond the strict authorization of do-
mestic law, ' and, I may add, of in-
ternational law also.
'A measure of international obli-
gation rests on the United States
under the third article of the treaty
of 1880, which, in the event that
Chinese laborers or others in the
United States, ' meet with ill-treat-
ment at the hands of other persons,'
requires the Government of the
United States to l exert all its power'
to devise measures for their protec-
tion and to secure to them the same
'rights, privileges, immunities, and
exemptions as may be enjoyed by the
citizens or subjects of the most fav-
ored nation, and to which they are
entitled by treaty. '
"That the power of the National
Government is promptly and effi-
ciently exercised whenever occasion
unhappily arises therefor you have
justly acknowledged, and it has been
abundantly shown. The conditions
under which this power may be ap-
plied are not always clear and are
sometimes very difficult. Causes grow-
ing out of the peculiar characteristics
and habits of the Chinese immigrants
have induced them to segregate them-
selves from the rest of the residents
and citizens of the United States, and
tc. refuse to mingle with the mass
of population as do the members of
other nationalities. As a conse-
quence race prejudice has been more
excited against them, notably among
aliens of other nationalities, who are
more directly brought into competi-
tion with the Chinese in those ruder
fields of merely manual toil wherein
our skilled native labor finds it un-
piofitable to engage More-
over, the Chinese laborers voluntarily
carry this principle of isolation and
segregation into remote regions where
law and authority are well known to
be feeblest, and where conflicts of
labor and prejudices of race may be
precipitated on the slightest pretext
and carried without check to limits
beyond those possible where the
powers of law may be better or-
ganized.
§ 522] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 512
tion, to direct the bounty of the government "in aid of innocent
and peaceful strangers whose maltreatment has brought discredit
upon the country; with the distinct understanding that such ac-
"No measures can be devised to
meet the problem which do not take
this state of things into account, nor
can they be effective if they do not
contemplate the exercise of authority
where it is competent to afford protec-
tion, for these measures have only
for their object to secure to the
Chinese the same rights as other
foreigners of the most favored nation
enjoy, not superior or special rights.
For Chinese labor is not alone re-
pugnant to the local communities;
from many quarters of the land comes
the same cry — the conflict of different
alien laborers and the oppression of
the weaker by the stronger. There
can and should be no discrimination
in applying punitive measures to all
infractions of law. And so, too,
with preventive measures. What will
protect a Hungarian or Italian con-
tract laborer in Pennsylvania or a
Swedish 'non-union' man in Ohio is
equally applicable to a Chinaman on
the Pacific Coast
"Eeverting, however, to your ap-
peal of November 30, which I under-
stand to be a direct application to the
sense of equity and justice of the
United States for relief for the un-
fortunate victims of the carnage and
excesses of the mob at Eock Springs,
I am compelled to state most dis-
tinctly that I should fail in my duty
as representing the well-founded
principles upon which rests the rela-
tion of this Government to its citi-
zens, as well as to those who are not
its citizens and yet are permitted to
come and go freely within its juris-
diction, did I not deny emphatically
all liability to indemnify individuals,
of whatever race or country, for loss
growing out of violations of our pub-
lic law; and declare with equal em-
phasis that just and ample oppor-
tunity is given to all who suffer
wrong and seek reparation through
the channels of justice as conducted
by the judicial branch of our Gov-
ernment.
"Yet I am frank to say that the
circumstances of the case now under
consideration contain features which
I am disposed to believe may induce
the President to recommend to the
Congress, not as under obligation of
treaty or principle or international
law, but solely from a sentiment of
generosity and pity to an innocent
and unfortunate body of men, sub-
jects of a friendly power, who, being
peaceably employed within our juris-
diction, were so shockingly outraged;
tnat in view of the gross and shame-
ful failure of the police authorities at
Eock Springs, in Wyoming Territory,
to keep the peace, or even to attempt
to keep the peace, or to make proper
efforts to uphold the law, or punish
the criminals, or make compensation
for the loss of property pillaged or de-
stroyed, it may reasonably be a sub-
ject for the benevolent consideration
of Congress whether, with the distinct
understanding that no precedent is
thereby created, or liability for want
of proper enforcement of police
jurisdiction in the Territories, they
will not, ex gratia grant pecuniary
relief to the sufferers in the case now
before us to the extent of the value
of the property of which they were
so outrageously deprived, to the grave
discredit of republican institutions."
For. Eel. 1886, 158 ; H. Ex. Doc. 102,
49 Cong. 1 Sess.
513 VIEWS OF SENATOR EDMUNDS. [§§ 523, 524
tion is no wise to be held as a precedent, is wholly gratuitous,
and is resorted to in a spirit of pure generosity toward those who
are otherwise helpless." Congress, without making in the act
any question of liability, appropriated $147,748.47 to be paid to
the Chinese government for the losses sustained, to be distributed
among the sufferers and their legal representatives, in the dis-
cretion of the Chinese government.52 The Chinese legation sub-
sequently returned $480.75, which sum represented duplicated
claims of losses.53
§ 523. Views of Senator Edmunds. — When this bill appro-
priating money for the relief of Chinese residents was before the
Senate, the views expressed by Mr. Bayard as to the nonliability
of the government for these outrages were not universally con-
curred in. The bill was passed in the Senate by a vote of 30 to
10, and Senator Edmunds, who voted with the majority, contended
that between nations there can be negligence on the part of gov-
ernments, and said: "One nation as between itself and another
is not bound by the internal autonomy of that state, but it looks
to the body of the nation to carry out its obligations, and if they
have not the judicial means to do it, for one reason or another,
the nation that is injured is not bound by the failure of the na-
tion whose people committed the injury. ' ' 54
§ 524. Other allowances for injuries to Chinese residents. — In
addition to the losses suffered at Rock Springs, injuries and losses
had been inflicted on Chinese residents in the territories of Wash-
ington, Montana, Alaska and the state of California, and by ar-
ticle V of the immigration treaty between the United States and
China, which was signed at Washington, March 12, 1888, the sum
of $276,619.75 was agreed to be paid to the Chinese Minister at
Washington by the United States as full indemnity for the losses so
inflicted. This treaty, however, was never ratified, but Congress
provided by the act of October 19, 1888, for the payment of the
sum mentioned in the treaty as full indemnity for all losses and in-
juries sustained by Chinese subjects within the United States, stat-
52 Act of February 24, 1887, 24 53 For. Eel. 1887, 243, 244.
Stats. 418; Message of President M Cong. Record, vol. 17, pt. 5, p.
Cleveland, March 2, 1886, H. Ex. Doc. 5386.
102, 49 Cong. 1 Sess.
Treaties — 33
§§ 525, 526] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 514
ing that it was done "out of humane consideration and without
reference to the question of liability therefor. ' ' 55
§ 525. Explanation of treaty. — Mr. Bayard, in his report to
the President in which he explained the terms of the treaty,
stated that the liability of the government was not to be ad-
mitted, as the article of the treaty referred to recited, yet con-
ceded that "it is competent for this Government, in humane
consideration of those occurrences, so discreditable to the com-
munity, in which they have taken place, and outside of the puni-
tive powers of the National Government, to make voluntary and
generous provisions for those, who have been made the innocent
victims of lawless violence within our borders, and to that end,
following the dictates of humanity, and, it may be added, the
example of the Chinese Government in sundry cases, where
American citizens who were the subjects of mob violence in
China, have been indemnified by the Government, the present
treaty provides for the payment of a sum of money. ' ' He stated,
also, that this payment would reflect beneficially upon the wel-
fare of American residents in China, and in .a measure would re-
move the reproach to our civilization caused by the crimes to
which he referred.56 Article V of the proposed treaty, which,
as we have said, was not ratified by the Senate, declared that the
money to be paid by the United States was "without reference
to the question of liability therefor, which as a legal obligation it
denies."57
§ 526. Mafia riots and lynching at New Orleans.— The chief of
police of New Orleans, D. C. Hennessy, was murdered, it was sup-
posed, through the action of a secret Italian society known as
the Mafia. On March 14, 1891, eleven Italians charged with his
murder were killed by a mob, and the Italian consul reported
the affair immediately to the Italian Minister at Washington.
The latter was instructed by the Italian Minister of Foreign Af-
fairs to request protection for the Italians in New Orleans and
to demand the punishment of those concerned in the attack. The
Italian Minister, in pursuance of these instructions, brought the
56 25 Stats. 565, 566; For. Eel. 1 Sess.; 25 U. S. Stats. 565, 566;
3889, 116-118. For. Eel. 1889, 116-118; 6 Moore's
» For. Eel. 1888, I, 396-400; Id. Law Dig., sec. 1025.
359-395 ; S. Ex. Doc. 272, 50 Cong. 37 For. Eel. 1881, I, 396-400.
f)lf> DEMANDS OF THE ITALIAN GOVERNMENT. [§ 527
affair to the attention of the Secretary of State, Mr. Blame, who
telegraphed to the governor of Louisiana that the treaty between
the United States and Italy guaranteed to the subjects of the lat-
ter country constant protection and security for their persons
and property, and that the President hoped the governor would
co-operate with him in maintaining the obligations of the United
States toward the Italian subjects in his state, to the end that fur-
ther violence might be prevented.
$ 527. Demands of the Italian government. — The Italian gov-
ernment asked not only the official assurance by the United
States that the guilty parties should be brought to trial, but also
that it should be recognized in .principle that an indemnity was
due to the relatives of the victims. As our government refused
to make any promise of reparation, Italy recalled its Minister.
Considerable correspondence passed between the two governments
and some misunderstanding arose as to the meaning of certain
language used by our government as conveying an admission
that an indemnity was due, and finally, to correct any impression
to that effect, Mr. Elaine stated that the question whether there
was or was not a violation of the treaty was a question upon
which the President, with sufficient facts before him, had taken
ample time for decision, and declared that the position taken by
our government was that if it should appear that "among those
killed by the mob at New Orleans there were some Italian sub-
jects who were resident or domiciled in that city, agreeably to
our treaty with Italy, and not in violation of our immigration laws
and who were abiding in the peace of the United States and obey-
ing the laws thereof and of the State of Louisiana, and that the
public officers charged with the duty of protecting life and prop-
erty in that city connived at the work of the mob, or, upon proper
notice or information of the threatened danger, failed to take any
steps for the preservation of the public peace and afterward to
bring the guilty to trial, the President would, under such circum-
stances, feel that a case was established that should be submitted
to the consideration of Congress, with a view to the relief of the
families of the Italian siibjects who had lost their lives by lawless
violence."58
58 For. Eel. 1891, 665-667, 671, 672, 674, 712.
§§528,529] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 51
§ 528. Withdrawal of American Minister.— Mr. Porter, th
American Minister, after the withdrawal of Baron Fava, th
Italian Minister at Washington, withdrew from Rome and wa
granted leave to visit the United States. President Harrison, i:
his annual message of December 9, 1891, stated that it would b
competent for Congress to make offenses against treaty right
cognizable in the federal courts, but that this had not been done
and that federal officers and courts have no power to intervene
It would seem to follow, he said, that the officers of the stat
should be regarded as federal agents, so as to make the govern
ment responsible for their acts in cases where it would be re
sponsible, if it had used its constitutional power to define an(
punish crimes against treaty rights.59
§ 529. Tender of indemnity. — Mr. Elaine, in a note datec
April 12, 1892, tendered to the Minister of Foreign Affairs o
Italy 125,000 francs, or $24,330.90, stating that while the injur:
was not inflicted directly by the United States, still, in the opin
ion of the President, it was the solemn duty as well as the grea
pleasure of the national government to pay a satisfactory in
demnity, and expressed the hope that all memory of the unhappy
tragedy might be effaced. The Marquis Imperiali, Minister o:
Foreign Affairs, accepted the indemnity, but stated that he did s(
"without prejudice to the judicial steps which it may be propej
for the parties to take," and that by the instructions of his gov
ernment diplomatic relations between Italy and the United State*
were fully re-established.60
59 For. Eel. 1891, V; For. Eel. 1892, Italian people, nor in any disresped
XIV. to the Government of Italy, witl
60 For. Eel. 1891, 665, 671, 674, which our relations were of the mosi
712, 727, 728 ; For. Eel. 1891, V. ; For. friendly character. The fury of th<
Eel. 1892, XIV; 6 Moore's Int. Law mob was directed against these mei
Dig., sec. 1026. The language of a? the supposed participants or ac
President Harrison in his message of cessories in the murder of a city offi
December 9, 1891, on this subject cer. I do not allude to this as miti
was: gating in any degree this offensi
"The lynching at New Orleans in against law and humanity, but onh
March last of eleven men of Italian as affecting the international ques
nativity by a mob of citizens was a tions which grew out of it. It was
most deplorable and discreditable in- at once represented by the Italiai
cident. It did not, however, have its minister that several of those whost
origin in any general animosity to the lives had been taken by the mob wen
517
SUITS TO RECOVER DAMAGES.
[§ 530
$ 530. Suits to recover damages. — Suits were brought to re-
cover damages by the relatives of those killed in the riot, but it
was decided that the killing of a human being by a mob allowed
to congregate by the negligence of municipal officers does not
render the municipal corporation liable for damages in the ab-
sence of a statute so declaring. The treaty between the United
States and Italy, then in force, guaranteed to the citizens of
either nation in the territory "the most constant protection
and security for their persons and property," and also that
''they shall enjoy in this respect the same rights and privileges
as are or shall be granted to the natives on their submitting them-
selves to the conditions imposed upon the natives. ' ' 61 The court
decided that this treaty was applicable only so far as to require
that the rights of the Italian mother, who was suing for the death
of her son, should be adjudicated and determined exactly the
same as if she were, and her deceased son had been, a native citi-
Italian subjects, and a demand was
made for the punishment of the par-
ticipants and for an indemnity to the
families of those who were killed. It
is to be regretted that the manner
.11 which these claims were presented
vvas not such as to promote a calm
liscussion of the questions involved;
out this may well be attributed to
;he excitement and indignation which
;he crime naturally evoked. The
/lews of this Government as to its
obligations to foreigners domiciled
lere were fully stated in the corres-
pondence, as well as its purpose to
nake an investigation of the affair
vith a view to determine whether
:here were present any circumstances
jhat could, under such rules of duty
is we had indicated, create an obli-
gation upon the United States. The
temporary absence of a minister
lenipotentiary of Italy at this Capi-
al has retarded the further corres-
>ondence, but it is not doubted that
friendly conclusion is attainable.
"Some suggestions growing out of
this unhappy incident are worthy the
attention of Congress. It would, I
believe, be entirely competent for
Congress to make offenses against the
treaty rights of foreigners domiciled
in the United States cognizable in the
Federal Courts. This has not, how-
ever, been done, and the Federal offi-
cers and courts have no power in such
cases to intervene either for the pro-
tection of a foreign citizen, or for the
punishment of his slayers. It seems
to me to follow,* in this state of the
law, that the officers of the State
charged with police and judicial
powers in such cases must, in the con-
sideration of international questions
growing out of such incidents, be re-
garded in such sense as Federal agents
as to make this Government answer-
able for their acts in cases where it
would be answerable if the United
States had used its constitutional
power to define and punish crimes
against treaty rights."
Cl Treaty of 1871, art. 3; 17 Stats,
at Large, 845.
§ 531] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 518
zen of this country.62 The statute of Louisiana makes a munic-
ipal corporation liable for the destruction of property by mobs,
but this does not render a city liable for the killing of a person
by a mob. The protection of life by a municipal corporation is
a public duty required of the government, and, in the absence of
statute, a city is not liable for failure in its performance.63
§ 531. Killing of Italian subjects in Colorado in 1895. — Con-
gress again, on another occasion, by an act approved June 30,
1896, out of humane consideration and without reference to the
question of liability therefor, made an appropriation to the
Italian government of $10,000 for full indemnity to the heirs of
three of its subjects who were riotously killed and two others
who were injured in the state of Colorado by residents of that
state. A coroner's jury found that A. J. Hixon, an American
saloon-keeper, whose corpse was found in the coal-field of Rouse,
Colorado, had been murdered by an Italian miner named And-
inino. He was apprehended and lodged in jail at Walsenburg,
situated seven miles from the scene of the murder, and other
Italian miners who were implicated by the inquest were also ar-
rested, and four of them, named respectively, Vittone, Ronchietto,
Giacobini, and Gobetto, were, under the escort of two deputy
sheriffs, being taken to Walsenburg, when they were intercepted
by half a dozen men on horseback and in the encounter Vittone
was instantly killed. Giacobini and Gobetto escaped, and Ron-
chietto escaped with a wound but was shortly after recaptured
and placed in the same cell with Andinino. On the evening fol-
lowing, seven masked and armed men entered the jail, killed
Andinino and Ronchietto, thus making three in all who were killed.
The other two prisoners, Giacobini and Gobetto, who had es-
caped, were subsequently found wandering in the mountains with
their. feet frost-bitten to such a degree that it became necessary
to amputate them. Ronchietto and Vittone had declared their
intention to become citizens of the United States, but had not
been naturalized, and Andinino had, so far as the evidence showed,
62 New Orleans v. Abagnatto, 62 L. E. A. just cited there is an^
Fed. 240, 10 C. C. A. 361, 26 L. K. elaborate note on the subject of lia-
A. 329. bility of a municipal corporation for
63 Gianfortone v. New Orleans, 61 property destroyed by a mob.
Fed. 63, 24 L. R. A. 592. In the
519 VARIANCE BETWEEN CONSUL AND AMBASSADOR. [§§ 532, 533
taken no steps to throw off his Italian allegiance. A German
who was in the same cell when the attack was made on the pris-
oners at the jail was unmolested.
§ 532. Variance between consul and ambassador. — The Italian
consul at Denver reported that he enjoyed the co-operation of the
authorities, from the governor down, in his efforts to secure the
prosecution of the offenders, but that delays and difficulties had
occurred in the institution of proceedings, owing to various causes,
among which were the sparseness of the population and the in-
frequency of terms of court. The Italian ambassador, however,
in his representations to the Department of State, asserted that
neither in the attack on the road nor in the breaking into the jail
was any resistance made by the public force, which fact, he
claimed, fixed the responsibility on the local authorities.64
§ 533. Action of the United States.— The Secretary of State
suggested to the Italian ambassador that he formulate a claim,
which he did, leaving it to "your high and benevolent apprecia-
tion to suggest the amount which may be deemed suitable to in-
demnify the families of the victims of the Colorado mob, accord-
ing to the spirit of justice which prompts all your actions." Mr.
Olney, Secretary of State, in reporting the claim to the President,
with a view to its submission to Congress, stated that the facts
were without dispute, and no comment or argument could add to
the force of their appeal to the generous consideration of Con-
gress, and he declared : ' ' The only question would seem to be as to
the amount of the gratuity in each case, which must rest, of course,
wholly in the discretion of Congress, to whom it can hardly be
necessary to cite the statutes of many states of the Union fixing
the maximum to be exacted in the case of death caused by negli-
gence at the sum of $5,000." 65
President Cleveland, in a message to Congress of February 3,
1896, communicated' Mr. Olney 's report, and after stating the
facts added: "Without discussing the question of the liability of
the United States for these results, either by reason of treaty ob-
ligations or under the general rules of international law, I venture
to urge upon the Congress the propriety of making from the pub-
64 For. Eel. 1895, II, 950. " For. Eel. 1895, II. 938.
§ 534] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 520
lie treasury prompt and reasonable pecuniary provision for those
injured and for the families of those who were killed."66
§ 534. Lynching of Italians at Hahnville.— On August 8, 1896,
three Italians, Salvatore Arena, Lorenzo Salardino, and Guiseppe
Venturella, who were held on a charge of homicide, were lynched
in the jail at Hahnville, Louisiana, while they were still in the
custody of the legal authorities. When they were first imprisoned
the sheriff, on account of the prevailing excitement, placed an ex-
tra guard around the jail, but subsequently, in the belief that the
excitement had subsided, removed the extra guard, and, accord-
ing to his usual custom, left the jail in charge of the jailer. An
armed mob, composed of unknown persons, broke into the jail and
lynched the prisoners, but did not molest three other Italians who
were confined in the same prison.
In this case, Secretary Olney, in his correspondence with the
Italian Minister, asserted that the lawless act was directed against
the victims as criminals, and not because of racial prejudice, as
was shown by the fact that three other Italians, confined in the
same jail, were not harmed, and also that the three lynched men,
by taking part in the political affairs of this country and voting
at elections, must be regarded as having renounced their legal
status. Salardino had lived for twelve years in Louisiana and
had participated in the civil affairs of the state, by voting at elec-
tions, and that Venturella and Arena had also resided in Louisiana
for several years and had voted at elections. Arena having de-
clared his intention to become a citizen of the United States. The
crime, Mr. Olney said, of which they were accused was peculiarly
atrocious, the attack on the jail unexpected, and its success was
not imputable to any negligence or connivance on the part of the
authorities, and that there was no reason to suppose that the re-
sult would have been different had the victims been citizens of
the United States. He laid particular emphasis upon the point
that they were not "Italians temporarily residing in the United
States," and that although a declaration of intention had been
found only in the case of one, it had doubtless been made by the
others, for the reason that they could not have voted otherwise,
and that by their qualifying and acting as electors they, in ac-
66 H. Doc. 195, 54 Cong. 1 Sess. ; For. Eel. 1895, II, 938.
521 GOVERNMENT CITIZEN^ AGENT. [§ 535
cordance with the Constitution and laws of Louisiana, had become
citizens of that State and eligible to office. Our government, un-
der these circumstances, while reserving, for the moment, its de-
cision, suggested to the Italian government whether as against the
United States it had ' ' any right or duty of reclamation. ' ' 67
§ 535. Government citizen's agent. — Mr. Olney, Secretary of
State, declared that in securing indemnity for injuries inflicted
upon a citizen, the government that presents the claim is, in truth,
the citizen 's agent. Any legal or equitable defense, he contended,
that is good as against the citizen himself is equally good as
against his representative. An individual, in his view, who partici-
pates in making the laws and electing the officers of one govern-
ment must be held to estop himself from complaining of that gov-
ernment to any other; and, he maintained, he is not distinguish-
able, in point of principle, but is to be identified with the body
politic of which he is a member. "He may not approve of a par-
ticular act of that body," said Mr. Olney, "but he contributes to
the power which enables it to do any or all acts. As a matter of
fact, indeed, his vote may have brought about the very legisla-
tion or elected the very officer responsible for the injury of which
he complains.
"The soundness of the position, therefore, that an international
reclamation will not lie against a Government when the beneficiary
of the claim by taking part in the organization and administra-
tion of that Government has in effect given his assent to its pro-
ceedings, seems to be supported by every consideration of justice
and equity. These considerations, which go to the duty of the
Italian Government in the premises, are re-enforced by the ab-
sence of any real interest on its part. The wrongs done at Hahn-
ville, on account of which its intercession is asked, were to per-
sons who had abandoned Italian soil and had ceased to be part of
the population of the kingdom, and who added nothing to its
productive capacity or to its military strength. To intercede as
asked, therefore, is to use the credit and prestige and power of
the Italian Government on behalf of persons, or the representa-
tives of persons, whose fate and fortunes were at the time of the
67 For. Kel. 1896, 407, 410, 411. Mr. Olney, Secretary of State, to Baron
Fava, Italian Ambassador.
§ 536] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE.
522
infliction of the wrongs complained of no real concern to that
Government. ' ' 68
§ 536. Contention of Italian ambassador. — Baron Fava, the
Italian ambassador, in response, contended that the question at
issue was the application of the fundamental principle of law and
justice, that the persons accused were to be deemed innocent un-
68 For. Eel. 1896, 407, 410, 411.
He then proceeded to point out the
distinction between this and other
cases, and said: "In bringing the
Hahnville cases to the notice of the
State Department your excellency
has evidently been under the impres-
sion that they resemble in all sub-
stantial particulars the cases of cer-
tain Italians lynched in New Or-
leans in 1891, and of certain others
lynched in Walsenburg, Colo., in
1894. But in the last-named cases
there was neither allegation nor
proof that the persons killed had
ever taken part in the political af-
fairs of a State or of the United
States by qualifying as voters and
actually voting at elections. In the
New Orleans cases, out of the eleven
persons of Italian extraction who
were lynched, two were American
citizens; five had declared their in-
tent to become United States citi-
zens and had voted; of the remain-
ing four, three had neither voted nor
declared their intent to become
United States citizens, while one had
declared such intent, but had not
voted. To the four persons last
mentioned the representations of
your Government and its demands
upon the United States through you
were expressly limited, as appears by
reference to the correspondence on
the subject between yourself and the
State Department. It is true that
*he Italian consul at New Orleans,
in a note to the district attorney,
argued that the Italian Government
could rightfully intervene on behalf
of the five persons who had declared
their intent to become United States
citizens and had voted, and that the
district attorney in a note to the
Attorney General controverted that
view. But no position of the Italian
consul, though brought to your
notice, was ever adopted by you — it
was never discussed between the two
Governments. The note announcing
your departure from Washington by
order of your Government specifies
only four Italian subjects on account
of whom demands had been made
upon this Government, and the inci-
dent, when settled, was settled by
the payment of a lump sum, the ap-
plication of which was left wholly
to the Italian Government. The re-
sult is that the subject to which the
attention of the Italian Government
is now invited is one upon which
the two Governments in their rela-
tions to each other stand wholly un-
committed. It is not, therefore, per-
missible to doubt that the question
will be examined and passed upon by
each in an enlightened spirit and
with a sincere purpose not only to
dispose of the particular matter in
hand, but to ascertain and fix a just
and proper rule for the determina-
tion of all like questions hereafter
arising." For. Eel. 1896, 407, 410,
. 411.
523 CONTENTION OF ITALIAN AMBASSADOR. f§ 536
til found guilty by judicial process, and that what the position
and responsibility of the persons murdered, or the apparent crim-
inality of the persons lynched might have been, was unimportant.
The evidence showed, he maintained, negligence on the part of
the local authorities in failing to protect the prisoners, and to ap-
prehend and prosecute the lynchers, and that such proceedings
as had been taken could not but tend to encourage similar out-
rages in the future. He called attention to the fact that naturaliza-
tion could be granted by the federal laws exclusively, and not by
the State laws, and that mere declaration of intention did not
confer citizenship.69 He declared that no matter what the laws of
Louisiana might be, and although they might have voted as elec-
tors, they were not citizens of the United States, because they
had not complied with the provisions of the Eevised Statutes reg-
ulating naturalization. He called attention to certain cases in
which it was held that the power of naturalization was exclusively
in Congress,70 and also to the opinion of counsel upon the status
of electors who were not citizens, in which it was stated: "The
alien elector has certain privileges in the matter of voting in
Louisiana, and in a few other states, granted to him in anticipa-
tion of a future naturalization which may never ripen into citi-
zenship, and that is all. But he has not yet crossed the Rubicon.
He has not been naturalized under the act of Congress. He is
still under the allegiance of the foreign government, and compe-
tent to place himself under the aegis of its protection." He
argued that this was sufficient to show that as the Italians had
not complied with the requirements of the provisions on the sub-
ject of naturalization contained in the Revised Statutes, they still
maintained their capacity as Italian subjects.71
69 For. Eel. 1896, 412, 414, 418, special agent of your Department
421, 422. that Salardino, Arena and Ventureila
70 Citing Chirac v. Chirac, 2 had voted at the political elections
Wheat. 269, 4 L. ed. 234. in Louisiana; that Arena had taken
71 For. Eel. 1896, 412, 414. He out his first naturalization papers,
said that without prejudice to the while it is to be presumed that the
incontestable Italian nationality of two others had done the same, as
the Italians, he did not hesitate to they also had presented themselves
enter upon an examination of the at the elections; and that all three
other points relative to their status, had definitely fixed their domicile in
and proceeded: "It is stated by the the United States.
§ 537] RESPONSIBILITY OP GOVERNMENT FOR MOB VIOLENCE. 524
§ 537. Italians voting. — Baron Fava said that the entire solu-
tion of the difficulty was found in the treaty in force between the
United States and Italy. He again presented the request "that
the guilty parties be sought and brought to justice ; that steps be
''I do not know what were the
sources of this information; as, how-
ever, they are wholly at variance
with that furnished the authorities
of Louisiana, and with that which I
have received from the Italian con-
sulate at New Orleans, I must beg
your excellency to inform me: (a)
In what registers and under what
date the three Italians are inscribed
as electors; (b) from which of the
five Federal courts of Louisiana
Arena had received his first papers;
(c) when, and to whom, the three
Italians had declared that they had
fixed their domicile in the United
States
"But even if Salardino, Arena
and Venturella had voted at the elec-
tions, and even if the laws of Louis-
iana attached great importance to
that fact, how could this affect the
well-proved fact that they were not
American citizens?
' ' The first, Salardino, had resided
fully twelve years in Louisiana, and
even if he voted, he had not taken
out either his first or second natural-
i/ation papers. Arena, according to
the special agent, had only taken
out his first papers, and his attempts
to become an American citizen had
stopped there. Venturella does not
appear to have done even this, as the
said special agent could not find
either his certificate of first declara-
tion or that of Salardino. All three
had had time to ask for their first
and second papers. Why did they
not do so? The mere fact of having
voted would not have conferred
upon any of the three the right of
citizenship, as is amply shown in the
inclosed memorandum; and if they
voted, they voted illegally, and prob-
ably because they had been misled
by native politicians in search of
voters, legal or illegal.
"But there is more to be said.
The four Italians who were lynched
at Walsenburg on the 14th of
March, 1895, Francesco Konchietto,
Stanislao Vittone, Pietro Giacobino
and Antonia Gobette, had solemnly
declared their intention to become
citizens of the United States, and
to renounce forever all submission
and allegiance to any foreign prince,
potentate, state or sovereignty, and
especially the King of Italy, and
they all were in possession of their
first naturalization papers. Not-
withstanding this, and in spite of
those solemn declarations, when I
informed the Federal Government of
the murders which had been com-
mitted, Mr. Uhl came to my house
and expressed the President's re-
gret for that bloody act, and your
honorable predecessor and your ex-
cellency yourself, deeply impressed
with a sense of the duties which the
Government of the Union has as-
sumed toward a friendly power by
virtue of treaties, did not raise the
slightest objection; you all imme-
diately recognized the Italian na-
tionality of the four victims, and a
suitable indemnity, recommended by
your Department and by the Presi-
dent, was granted to the bereaved
families. In view of this precedent,
it can hardly be maintained that the
subject to which you have now
525
ITALIANS VOTING.
537
taken to prevent the repetition of such atrocious crimes, and that
at the same time, just and adequate compensation be made to the
families of the victims. " In a subsequent letter, he said relative
to the suggestion whether the Italian government can or cannot
called my attention is one of those
as to which the two Governments are
entirely uncommitted.
"And lastly, the fact that the
three victims had been in the United
States for several years cannot be
cited as a proof of their deliberate
'animus manendi.' If they had not
been residing here temporarily, as
asserted by your note, they would
have sent for their families, whom
they had left in Italy, where they
had their domicile, and whom they
supported from here by their labor,
Venturella his wife and seven chil-
dren, Arena his wife and four-year-
old son, and Salardino his old father,
who was unable to earn his living.
Under these circumstances, and how-
ever long and continuous their ab-
sence from Italy might have been,
it cannot be said that they had
transferred their domicile to Lou-
isiana, nor had they no intention of
returning to their native land, nor
that they were not contributing to
the resources and wealth of their
own country. They had come here
on business; that is to say, to pro-
vide by the fruits of their labor for
the comfort of their wives, children,
and parents, and they were thus con-
tributing to the wealth of the coun-
try in which they had their home.
1 ' Nor is the other assertion, that
they had withdrawn from military
service, correct. By the two affi-
davits which I have the honor to
submit to you (inclosures 5 and 6)
the signers declare under oath:
"(a) That Guiseppe Venturella
bad performed his regular military
service in the artillery, and that he
landed in the United States with a
regular passport in his possession.
"(b) That Salvatore Arena had
not performed any military service,
because, as an only son, he was en-
rolled in the third class, and that
when he arrived in the United States,
he was in possession of a regular
passport.
" (e) And lastly, that Lorenzo
Salardino had never performed any
military service, because he,' too, as
an only son, was enrolled in the third
class, and that he came to the United
States with a regular Italian pass-
port.
' ' I cannot follow your excellency
in the views expressed by you as to
a Government demanding indemnity
for injuries inflicted upon one of its
own subjects, being the agent of said
injured subject. In that case the
American Government would be,
near that of the Sultan, the agent
of the missionaries, in behalf of
whom it is now demanding indemni-
ties. Every Government owes it to
itself to protect, within the bounds
of justice, its own subjects, however
poor and humble, and it would other-
wise lose the respect of civilized na-
tions.
' ' Referring to the other lynching
which occurred in New Orleans in
1891, and which you mention in your
note, I must correct a statement con-
tained in that note, which statement
is absolutely and entirely incorrect.
Of the eleven persons who were vic-
tims of that savage slaughter, two
were American citizens, four were
§ 537] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 526
consider as its subjects those Italians to whom it is permitted to
vote in the states of the Union: "Allow me to observe that the
solution of this question belongs solely to the Italian legislator
and to Italian law. As a matter of fact I can add that the Fed-
eral Government has always considered and still considers as citi-
muloubtedly Italian subjects, and
the other five, who had only taken
out their first papers, were justly
regarded by the royal consul at New
Orleans as Italian subjects. By the
pure, simple, and unreserved trans-
mission to the Department of State,
in my note of March 25, of the re-
port of the said consul, I evidently
and impliedly adopted his views on
the subject. Otherwise I would
have kept his report to myself. In
consequence of its having been re-
marked to me in person at the De-
partment of State that it was pos-
sible that those five persons had also
taken out their last papers, I re-
quested the consul to make new and
closer investigations in the case. As
the diplomatic rupture between the
two countries occurred a few days
afterwards, and as the consul's re-
plies did not reach me in time, I
mentioned in my note of March 31
only the four Italians who were un-
doubtedly subjects of the King. But
still I never had a thought of aban-
doning the other five if it should be
found that they had only their first
papers. In fixing the indemnity at
$25,000 the United States Govern-
ment must, therefore, certainly have
admitted that those five persons were
Italian subjects, in spite of the fact
that they had procured their first
naturalization papers.
' ' I think that I have shown by the
foregoing remarks that the partic-
ular points in your excellency's note,
which I have examined with all
sincerity of purpose, are insufficient
to induce my Government to desist
from taking that just action which
is called for by the murder of the
Italian subjects at Hahnville; nor
can they in any way disprove the
incontrovertible fact of the Italian
nationality of Arena, Venturella,
and Salardino. Besides, this fact
was immediately admitted by the ju-
dicial authorities of Louisiana them-
selves, in their report of August 15,
and, on the ground of that report,
by the Department of State in the
telegram sent by it to the governor
on the 29th of August. Like the
said five persons who were lynched
at New Orleans in 1891; like those
of 1895 at Walsenburg, Arena, Ven-
turella, and Salardino were Italian
subjects. And it was precisely ow-
ing to this undoubted personal
status of theirs that I had to insist
in our interviews — and the high
officials who took your place tem-
porarily last summer likewise ad-
hered to them — that 'in dealing with
the present case the New Orleans
lynching of 1890 and the Colorado
murders of 1895 should serve as prec-
edents. '
"In view of the proven Italian
nationality of the three subjects of
the King who were lynched at Hahn-
ville, I do not see, in conclusion, any
other way of arriving at a legal,
just, and final settlement of the dis-
pute than that indicated by the
treaties, the only one consistent with
the dignity of great nations." For.
Eel. 1896, 412, 414.
527 SUBJECT CLOSED BY APPROPRIATION. [§§ 538, 539
zens of the United States, the numerous Americans who in Hawaii
take a prominent part in the political affairs, and vote openly at
the elections of these islands. ' ' 72
$ 538. Subject closed by appropriation. — Mr. Olney, in his re-
port to the President, December 7, 1896, stated that investigation
had shown that the three men lynched had participated in the
political affairs of this country, and that their cases were thus
different from the prior cases at New Orleans and Walsenburg,
in which indemnity was tendered to the relatives of such of the
victims as remained loyal subjects to Italy.73 He said: "Upon
the assumption that the unfortunate men wrere, as in the case
of some of the victims of the preceding lynchings, Italian sub-
jects, the Government of Italy sought the mediation of that of the
United States with the State authorities to the end of investigat-
ing the occurrence, and if the facts so warranted, making provi-
sion for the families of the sufferers as in the former instances.
The State of Louisiana promptly instituted an inquiry, express-
ing regret and a purpose to seek out the offenders. An inde-
pendent investigation, set on foot by the Department of State
and conducted by a trusted agent, has just been concluded. As
its result, it appears that all the normal precautions for the safety
of the prisoners had been taken by the local officers, and that no
blame can justly attach to them by reason of the sudden out-
break of mob violence against these three men against whom there
lay convincing evidence of the murder of two estimable citizens
of the neighborhood. That the lawless act was directed against
the victims as criminals, and not because of racial prejudice, is
shown by the circumstances that three other Italians confined in
the same jail on lesser charges were unharmed."
§ 539. Renunciation of Italian allegiance. — He stated that
one of the most important results of the investigation in its bear-
ings upon the possible international features of the controversy
was the fact that the victims of the mob, by taking part in the
political affairs of the country, and by voting at elections, must
probably be considered as having abandoned their original status.
"It is established," said he, "by the appropriate record evidence
72 For. Eel. 1896, 414-418, 421, 422. 7S For. Eel. 1896, LXXVI.
§ 540] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 528
that one had also taken the preliminary steps to abjure Italian al-
legiance, while the others must be presumed to have done so,
since by domicile and sharing in the electoral franchise they had
acquired lawful citizenship of the State of Louisiana, a privilege
inuring only to such as could show their declaration of intention
to be naturalized. Their cases being thus differentiated from the
prior instances at New Orleans and Walsenburg, when indemnity
was offered to the relatives of such of the lynched men as were
found to have remained faithful subjects of Italy, the precedent
then set is only applicable now so far as it eliminates all claim by
Italy on behalf of those men who were ascertained to have exer-
cised the civil rights of aliens lawfully admitted to citizenship in
this country.
' l Whether or not any obligation rests upon the Federal Govern-
ment under the circumstances — a matter as respects which the
Government has thus far reserved its decision — the existence or
the absence of such obligation cannot diminish the feelings of ab-
horrence with which all good citizens must view such brutal acts
of blind vindictiveness in defiance of the justice of a Common-
wealth and in disparagement of its good name."
The subject was closed by an appropriation by Congress in the
deficiency act of July 9, 1897, of $6,000, which was stated to have
been made "out of humane consideration and without reference
to the question of liability therefor, to the Italian Government, as
full indemnity to the heirs of three of its subjects, Salvatore
Arena, Guiseppe Venturella and Lorenzo Salardino, who were
taken from jail and lynched in Louisiana in 1896. "74
§ 540. Other lynching of Italians. — The Italian government in
another case felt called upon to characterize as "a denial of jus-
tice, a flagrant violation of contractual conventions, and a grave
offense to every human and civil sentiment, ' ' the lynching of cer-
74 30 Stats. 106. The same act teenth day of July, eighteen hun-
contained an appropriation ' ' To pay, dred and ninety-two, on the public
out of humane consideration, with- highway near the rifle range of Fort
out reference to the question of lia- Snelling, by a shot fired by one of a
bility therefor, to the German Gov- party of United States soldiers en-
ernment, as full indemnity to Chris- gaged in target practice, three thou-
topher Schmidt, a German subject, sand dollars."
for injuries received on the four-
529 WOUNDING OF A BRITISH SUBJECT AT NEW ORLEANS. [§ 541
tain Italians at Erwin, Mississippi, and the failure of the local au-
thorities to prosecute and punish the perpetrators. The crime
was committed under the cover of darkness, and neither the coro-
ner's inquest nor the investigation by the grand jury was able to
discover their identity. The Italian embassy, in their protest, al-
luded to failure of Congress to confer jurisdiction in such cases on
the federal courts, as recommended by the President, and stated
that until such power was conferred, the Italian government
would have reason to complain of violation of the treaties to its
injury, and would not cease from denouncing "the systematic im-
punity enjoyed by crime and to hold the federal government re-
sponsible therefor." The Department of State transmitted the
protest to the Committees of the Senate and House of Representa-
tives, which had under consideration the recommendation of the
President that indemnity should be tendered to the families of
the victims and that legislation should be enacted conferring upon
the federal courts original jurisdiction of offenses against aliens.75
The sum of $5,000 was appropriated by Congress using the usual
formula, "out of humane consideration, without reference to the
question of liability therefor to the Italian Government." 76
The lynching on July 21, 1899, of five persons of Italian origin
by a mob at Tallulah, Louisiana, became the subject of correspond-
ence with the Italian government, and induced President Mc-
Kinley to urge Congress to confer upon the federal courts juris-
diction in this class of international cases.77
§ 541. Wounding of a British subject at New Orleans. — The
British ambassador, in presenting a claim for compensation to a
British subject injured at New Orleans in 1895, expressed the hope
that the government of the United States would take such action
as might be necessary to obtain from Congress or otherwise the
relief to which he was so justly entitled. The person injured was
a purser on a British steamship, and while he was discharging
his duties on the wharves he was, without provocation or admoni-
tion, shot by a body of armed men. The rioters did not intend to
shoot him, but he was injured in a volley fired at laborers, whom
T5 For. Eel. 1901, 283, 285, 287, 76 33 Stats. 1032.
289, 292, 293, 297-299; 6 Moore's " For. Eel. 1899, 440, 441, 444,
Inst. Law. Dig. 849. 447, 448, 453-459, 463.
Treaties — 34
§ 542] RESPONSIBILITY OF GOVERNMENT FOR. MOB VIOLENCE. 530
the rioters attempted to prevent from working on the levee. Af-
ter the shooting, the local authorities of Louisiana arrested and
indicted six men for an assault with intent to commit murder,
but as the purser had returned to England and was not present
when the cases were called for trial, it was stated by the prosecut-
ing officer that they could not be tried in his absence.
The Ambassador referred to the article of the treaty of com-
merce of 1815 declaring that "the merchants and traders of each
nation respectively shall enjoy the most complete protection and
security for their commerce." He stated that certain societies
had for some months prior to the shooting attempted forcibly
to prevent the employment of colored laborers in loading and un-
loading of ships, and that in consequence of their lawless pro-
ceedings foreign ships and property were exposed to great dan-
ger. The foreign consuls of the port had appealed for protection
to foreign shipping, but none was afforded. At the time the
shooting was rn progress the few policemen in the vicinity con-
cealed themselves for safety behind cotton bales, and the police,
it was alleged, had allowed the rioters to assemble in a building
in which they maintained an arsenal of rifles, revolvers and other
deadly weapons.
§ 542. Appropriation by Congress. — The governor of Louisi-
ana, to whom a copy of the correspondence had been communi-
cated, returned, in reply, a report of the attorney general of the
state. The latter denied that there was any failure on the part
of the state authorities to protect the commerce of the city, and
stated that the governor had called out the militia and had given
full and ample protection to the commerce of the city as soon as
practicable after the threatening situation was called to his at-
tention. He stated, further, that the rioting happened early in
the morning before the arrival of the governor, and that no blame
attached to him nor to any other state authority. Finally, Con-
gress by the deficiency act of June 8, 1896, appropriated $1,000
to the British government as full indemnity, making the usual
reservation that it was done out of humane consideration, and
without reference to the question of liability.78
78 For. Eel. 1895, I, 686, 689, 690, 691, 694, 696; For. Eel. 1896, 300; 6
Moore's Int. Law Dig. 850.
531 HANGING OF A MEXICAN IN CALIFORNIA. [§§ 543, 544
§ 543. Hanging of a Mexican in California. — A Mexican,
named Moreno, and another individual were arrested and lodged
in jail at Yreka, California, charged with having shot two per-
sons, one fatally. Both were identified by one of the wounded
men, and the two persons arrested, and two others, all of whom
were accused of murder, were taken by a mob from the jail to
the court-house park, and hanged. A demand was made by the
Mexican Minister for the punishment of the persons engaged in
the lynching and for the payment of a suitable indemnity to the
family of Moreno. The governor of California, at the request of
the Department of State, investigated the affair and reported
that he took steps shortly after the lynching to secure the pun-
ishment of the guilty parties, but that no clue to the identity of
the persons concerned had been discovered, and that, conse-
quently, the grand jury had failed to find an indictment, and in a
subsequent report he declared that he did not consider it within
the limits of possibility that any person concerned in the affair
would ever divulge it. The Mexican government, on receiving
copies of these reports, renewed its request for indemnity, and
Mr. Sherman, Secretary of State, in his report to the President on
January 14, 1898, recommended that the same course be pursued
in the case of Moreno as was taken in the case of the lynching of
Italian subjects at Hahnville, Louisiana, "and that Congress be
requested, without question of the liability of the United States,
to appropriate the sum of $2,000 as full indemnity to his heirs."
This recommendation was carried into effect by the act of July
7, 1898, appropriating $2,000 to be paid "out of humane con-
sideration, without reference to the question of liability therefor,
to the Mexican government, as full indemnity to the heirs of
Luis Moreno, who was lynched in 1895 at Yreka, California. " 79 A
similar lynching occurred in Lasalle county, Texas, of a Mexican
citizen named Florentine Suaste, and on March 3, 1901, Congress
appropriated a similar amount on similar terms to be paid to the
Mexican government as indemnity to his heirs.80
§ 544. Responsibility of government for boycott. — The govern-
ment cannot recognize any obligation on its part to indemnify
foreign residents against whom a boycott is conducted. They
79 30 Stats. 653; H. Doc. 237, o-l s" 31 Stats. 1010.
Dong. 2 Sess.
§ 544] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 532
have recourse to the courts, where they can obtain the full relief
to which they, in law, are entitled.
Claims on behalf of several hundred Chinese subjects who were
residing in Butte, Montana, were presented by a note of July 6,
1901, through the Chinese Minister at Washington, who alleged
that the Chinese claimants had sustained damages in the sum of
$500,000 for injuries suffered by a boycott against them by vari-
ous labor organizations of that city. An injunction had been is-
sued by the federal court restraining the defendants from the acts
complained of, but the claimants insisted that the conspirators
were insolvent, and were still attempting to accomplish their de-
sign by clandestine means, and that no remedy could be obtained
by instituting proceedings against the local authorities.
Mr. Hay, Secretary of State, in his letter of December 4, 1901, to
Mr. Wu, Chinese Minister, declared that the ordinary rule is that
diplomatic intervention is improper in any case where ample judi-
cial remedies exist, and that the damages suffered could have
been avoided by a prompt appeal to the court, and that the fail-
ure and neglect of the Chinese subjects to avail themselves of
their remedial rights could not make the United States culpable
and responsible for the resulting damages. "The statement that
the conspirators," said Mr. Hay, "are still seeking to execute
their conspiracy by clandestine means is one which, to justify ac-
tion, should be sustained by proofs, on the submission of which
to the court it is not doubted that the penalties for disobeying the
injunction will be applied.
"The statement that no remedy could be found against the un-
lawful action of the city or county authorities in aid of the con-
spirators, the Department is unable to accept as correct in point
of law.
"The Department is glad to be able to assure you that while
the action of the Federal court is sufficient proof that the rights
of the subjects of the Empire of China domiciled in the city of
Butte will be protected and enforced by the judiciary, it may yet
add that the Executive will not fail, should the case arise justify-
ing its interposition, to use all its power to secure to them all the
rights, privileges, immunities, and exemptions guaranteed by the
United States Constitution and by treaty between the Govern-
ment of the United States and China/'81
81 For. Eel. 1901, 127.
533 MUNICIPAL CORPORATIONS. [§ 545
Again, Mr. Sherman, Secretary of State, on March 31, 1897, re-
plying to a complaint of Mr. Hoshi, Japanese Minister, of the fail-
ure of the local authorities to prevent the enforcement of a boy-
cott against Japanese subjects at Butte, Montana, stated that the
attorney general of the United States had advised that no federal
statute existed which made the boycott a criminal offense against
the United States, and that the persons injured must seek redress
by suit.82
§ 545. Responsibility of municipal corporation for damages by
mobs. — It is not strictly within our object to discuss the responsi-
bility of municipal corporations for injuries inflicted on persons
and property by mob violence. The obligation of a city to re-
spond in damages for injuries arising from this cause does not de-
pend upon treaty obligations, but inasmuch as such violence is
often directed against foreign residents, a brief statement of some
of the principles that govern will be given. In the first place it
may be observed that a municipal corporation is not responsible
at common law for damages occasioned by mobs.83 "The right
to reimbursement for damages caused by a mob or riotous as-
semblage of people," says Mr. Chief Justice Field, "is not founded
upon any contract between the city and the sufferers. Its liabil-
ity for the damages is created by a law of the legislature, and can
be withdrawn or limited at its pleasure. Municipal corporations
are instrumentalities of the state for the convenient administra-
tion of government within their limits. They are invested with
authority to establish a police to guard against disturbance, and
it is their duty to exercise their authority so as to prevent vio-
lence from any cause, and particularly from mobs and riotous as-
semblages. It has, therefore, been generally considered as a just
burden cast upon them to require them to make good any loss
sustained from the acts of such assemblages which they should
* For. Eel. 1897, 368. Prather v. Lexington, 13 B. Mon.
s3 Louisiana v. Mayor etc. of New (Ky.) 559, 56 Am. Dec. 585; Ward
Orleans, 109 U. S. 285, 3 Sup. Ct. r. Louisville, 16 B. Mon. (Ky.) 184;
Rep. 211, 27 L. ed. 936; New Or- Chicago League Ball Club v. Chicago,
leans v. Abbagnato, 62 Fed. 240, 77 111. App. 124; Western College of
10 C. C. A. 361, 23 U. S. App. 533; Homeopathic Medicine v. Cleveland,
Hart v. Bridgeport, 13 Blatchf. (U. 12 Ohio St. 375; Eobinson v. Green-
S.) 289, Fed. Cas. No. 6149;,Balti- ville, 42 Ohio St. 629, 51 Am. Kep.
more v. Pouetney, 25 Md. 107; 857.
§ 54 6 J RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 534
have repressed. The imposition has been supposed to create, in
the holders of property liable to taxation within their limits, an
interest to discourage and prevent any movements tending to
such violent proceedings. But however considered, the imposi-
tion is simply a measure of legislative policy, in no respect resting
upon contract, and subject like all other measures of policy to
any change the legislature may see fit to make, either in the ex-
tent of the liability or in the means of its enforcement."
§ 546. Liability imposed by statute. — But in many states stat-
utes have been passed placing a liability upon municipal corpora-
tions for injuries caused by mob violence. The liability, of course,
will then depend upon the language of the statute. If the stat-
ute provides that the party injured shall not recover if it appears
that the damage "was occasioned or in any manner aided, sanc-
tioned or permitted by ' ' his carelessness or negligence, or unless he
"shall have used all reasonable diligence to prevent such damage,
and shall have used all reasonable diligence to notify ' ' the mayor or
sheriff "of any threat or attempt to commit such injury to his
property by any mob, and of the facts brought to his knowl-
edge, " he is not entitled to recover from a municipal corporation
for the property destroyed, unless, if he had knowledge of the
pending danger, he used reasonable diligence to notify the proper
officer of the apprehended danger to his property. Nor can he re-
cover damages under such a statute if he instigated or partici-
pated in the riot.85 The liability, however, must be clearly im-
posed by statute, and will not arise from a provision of the char-
ter declaring it to be the duty of a city to preserve the peace and
to prevent disturbances and disorderly assemblages.86
84 Louisiana v. Mayor etc. of New Kep. 321, 53 N. E. 68, 45 L. B. A.
Orleans, supra. 848; Chicago League Ball Club v.
85 Wing Chung v. Los Angeles, 47 Chicago, 77 111. App. 124; Fauvia v.
Cal. 531. See, also, Bank of Cali- New Orleans, 20 La. Ann. 410 ; Folsom
fornia v. Shaber, 55 Cal. 322. v. New Orleans, 28 La. Ann. 936;
86 Western College of Homeopathic Chadbourne v. Newcastle, 48 N. H.
Medicine v. Cleveland, 12 Ohio St. 196; Palmer v. Concord, 48 N. H. 211,
375. See, also, Allegheny County v. 97 Am. Dec. 605; Luke v. Brooklyn,
Gibson, 90 Pa. 397, 35 Am. Bep. 670; 43 Barb. (N. Y.) 54; Granfortone v.
Matter of Pennsylvania Hall, 5 Pa. New Orleans, 61 Fed. 64, 24 L. K.
204; Jolly v. Hawesville, 89 Ky. 279, A 592; Pennsylvania Co. v. Chicago,
12 S. W. 313; Chicago v. Manhattan 8] Fed. 317.
Cement Co., 178 111. 372, 69 Am. St.
535 REPUTATION OF DECEASED. [§§ 547, 548
§ 547. Reputation of deceased. — The statute of Kansas pro-
vides that in actions against a municif il corporation for damages
caused by a mob "the character, use or manner of occupancy of
the property lost or destroyed, and the reputation of the person
injured, may be given in evidence in mitigation of damages.'*87
Under such a statute the evidence need not be limited to the gen-
eral reputation of the deceased, but ic is proper to show any mis-
conduct or crime committed within a reasonable time prior to tbtt
killing, which may have had an influence on the mob, or whicb
would affect the value of his life to his next of kin.88 "In the ab-
sence of the statute/' said the ccurt, "a civil action to recover
from the city for the death of a person injured or killed could not
be maintained, and those who claim under it must take the right
subject to the limitations upon recovery expressed in the stat-
ute. Recognizing that a liability was being placed upon inno-
cent citizens of the municipality is well as upon those who were
guilty of wrongdoing, the legislature provided that the damages
might be diminished by showing the character and use of the
property lost or destroyed, and also the reputation and conduct
of the person injured. Under the statute the bad reputation or
misconduct of the person killed, which may have influenced the
action of the mob, or which would affect the value of his life to
the father, was a proper consideration for the jury. If the prop-
erty destroyed by a mob is used as a hiding place for criminals
or a shelter for vice, the facts may be shown in mitigation of
damages ; and if the life of the person has been given up to vice
and crime, that, too, may be considered in determining the extent
of the city's liability."89
§ 548. Participation by owner. — An owner of property is not
required to provide a police force for the protection of his prop-
erty, as this is a duty which is incumbent upon the city authori-
ties. He cannot be charged with negligence for employing for-
eigners who do not speak English, nor can the fact that his em
ployees constitute the greater part of the mob be considered in
87 Kan. Gen. Stats. (1889), pars. Kan. 246, 48 Pac. 918. As to prov-
2590, 2591. ing under the Alabama statute that
88 Adams v. City of Salena, 58 the plaintiff has enemies in the
Kan. 246, 48 Pac. 918. neighborhood, see De Kalb County
89 Adams v. City of Salena, 58 r. Smith, 47 Ala. 407.
§§ 549-551] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 536
determining the city's liability. He and his employees are only
required to conduct themselves as ordinary, careful and prudent
men would be expected to do under similar circumstances, and he
cannot be charged with negligence because he and his employees
decline to take human life to preserve the property from destruc-
tion.90 But the owner will not be entitled to recover, if he has
instigated or participated in the riot.91
§ 549. Notice to be given. — The statutes generally provide that
notice shall be given to the municipal authorities of the threatened
violence.92 If the notice required by the statute has been given,
and if it appears that the destruction of the property was in no
manner aided, sanctioned or permitted by the negligence of the
owner, and that he used all reasonable diligence to prevent the
damages, a prima facie case is made by showing that a riotous
mob assembled, broke into a building, and destroyed and took
away property.93 It is held that the notice may be given ver-
bally.94
§ 550. Immaterial ruling. — If before the commencement of
the riot the party injured knew of the danger, and had ample op-
portunity to notify the municipal authorities, a ruling of the
court excluding evidence that during the riot he could not have
reached the street to notify such authorities is immaterial.95
§ 551. Sufficient time to give notice. — The provision requiring
notice to be given necessarily contemplates that there shall be
sufficient time between the threat or attempt and the execution of
it to permit of the giving of the notice, as it is not intended to
90 Spring Valley Coal Co. v. City Gibson, 90 Pa. 397, 35 Am. Eep. 670;
of Spring Valley, 65 111. App. 571, 96 Newberry v. New York, 1 Sweeny
111. App. 230. (N. Y.), 369; Salisbury v. Washing-
91 Wing Chung v. Los Angeles, 47 ton County, 22 Misc. Eep. 41, 48 N.
C'al. 53L Y. Supp. 122; Schiellein v. Kings
82 Solomon v. Kingston, 24 Hun County, 43 Barb. (N. Y.) 490.
(N. Y.), 562; Donoghue v. Phila- 93 Spring Valley Coal Co. v. City
delphia County, 2 Pa. 230; Wing of. Spring Valley, 65 111. App. 571.
Chung v. Los Angeles, 47 Cal. 531; °* Donoghue v. Philadelphia County,
Spring Valley Coal Co. v. City of 2 Pa. 230.
Spring Valley, 65 111. App. 571, 96 95 Wong Chung v. Los Angeles, 47
111. App. 230; Allegheny County v. Cal. 531.
537 CONSTITUTIONALITY OF SUCH STATUTES. [§ 552
provide redress, available only in cases where the mob should
proceed with so much deliberation as to allow their purpose to be-
come known to the person whose property was about to be de-
stroyed, and to deny it in cases where secrecy should be observed,
and no suspicion should arise of any unlawful design until it
had been accomplished.96 Under the Wisconsin statute it is held
that notice to the mayor by an employer does not inure to the
benefit of an employee.97
§ 552. Constitutionality of such statutes. — Statutes of this
character have been attacked as unconstitutional, but the constitu-
tional right of the legislature to pass such laws has been uni-
formly sustained. "It cannot be doubted that the general pur-
poses of the law are within the scope of legislative authority.
The legislature has plenary power in respect to all subjects of
civil government, which they are not prohibited from exercising
by the constitution of the United States, or by some provision or
arrangement of the Constitution of this state. This act proposes
to subject the people of the several local divisions of the state
consisting of counties and cities, to the payment of damages to
property in consequence of any riot or mob within the county or
city. The policy upon which the act is framed may be supposed
to be to make good at the public expense the losses of those who
may be so unfortunate as, without their own fault, to be injured
in their property by acts of lawless violence of a particular kind
which it is the general policy of the government to prevent ; and
further, and principally, we may suppose to make it the interest
of every person liable to contribute to the public expense to dis-
courage lawlessness and violence and maintain the empire of the
laws established to preserve public quiet and social order. These
ends are plainly within the purposes of civil government, and, in-
deed, it is to maintain them that governments are instituted, and
the means provided by this act seem to be reasonably adapted to
36 Moody v. Board of Supervisors It is not necessary to give the notice
of Niagara County, 46 Barb. (N. Y.) if it would have been unavailing.
659. See, also, Salisbury v. Wash- Schiellein v. Kings County, 43 Barb,
ington Co., 22 Misc. Eep. 41, 48 N. 490. See, also, Long v. City of
Y. Supp. 122; Solomon v. Kingston, Neenah, 128 Wis. 40, 107 N. W. 10.
24 Hun (N. Y.), 562; Newberry v. 9T Long v. City of Neenah, 128
New York, 1 Sweeny (N. Y.), 369. Wis. 40, 107 N. W. 10.
§ 553] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 538
the purposes in view. ' ' 98 Such statutes are not in conflict with
the provision of the Constitution declaring that no person shall
be deprived of his property without due process of law."
§ 553. Liberal construction. — Such statutes are both reme-
dial and penal in their nature, and must be liberally construed.100
The Pennsylvania statute was held to include every form of
riotous disturbance, large or small. It was also held not to be
necessary for a property owner to give notice to the municipal
authorities unless he possesses a knowledge of an intention on
the part of the mob to destroy his property, and there is sufficient
time intervening to enable him to give the contemplated notice;
where the authorities already have knowledge of the intention
or attempt to destroy property, such a notice is not necessary.101
The liability of a municipal corporation to make compensation
for damages inflicted by a mob is not limited by the fact that
they are unable to suppress the riot.302 A statute which pro-
vides that damages may be recovered for loss of property or
injury to life or limb applies to all bodily injuries, and is not
confined to such injuries as result in death or the loss of a
limb.103 But in the interest of the taxpayers, the courts should
see that the claims are established with reasonable certainty.104
98 Darlington v. Mayor of New by a mob to five hundred dollars is
York, 31 N. Y. 164, 88 Am. Dec. 248. unconstitutional. Caldwell v. Cuy-
feee, also, Underbill v. City of Man- ahoga County, 8 Ohio Cir. Dec. 56.
Chester, 45 N. H. 214; County of °9 City of Tola v. Birnbaum, 71
Allegheny v. Gibson, 90 Pa. 397, 35 Kan. 600, 81 Pae. 198.
Am. Kep. 670; City of Chicago v. 10° County of Allegheny v. Gibson,
Cement Co., 178 111. 372, 69 Am. St. 90 Pa. 397, 35 Am. Kep. 670.
Eep. 321, 53 N. E. 68, 45 L. E. A. 101 County of Allegheny v. Gibson,
848; Clear Lake Water Works v. 90 Pa. 397, 35 Am. Eep. 670.
Lake County, 45 Cal. 90; In re Penn- 102 County of Allegheny v. Gibson,
sylvania Hall, 5 Pa. 204; Williams 90 Pa. 397, 35 Am. Eep. 670; Chad-
v. City of New Orleans, 23 La. Ann. bourne v. New Castle, 48 N. H. 196;
507; Luke v. City of Brooklyn, 43 Palmer v. Concord, 48 N. H. 211,
Barb. 54; Bringham v. Bristol, 65 97 Am. Dec. 605.
Me. 426, 20 Am. Eep. 711; Chad- lfln City of lola v. Birnbaum, 71
bourn v. Town of Newcastle, 48 N. Kan. 600, 81 Pac. 198.
H. 196; City of Atchison v. Irvine, 9 1<H Fink v. City of New Orleans,
Kan. 350. A statute, however, lim- 110 La. 84, 34 South. 138.
iting the recovery by one assaulted
539 COMMON PURPOSE OP CROWD.
§ 554. Common purpose of crowd. — There should be some con-
cert of action or common intention among the crowd to render
it a mob. Under the Wisconsin statute it was held that a cause
of action was not stated against a city by a complaint that alleged
that the plaintiff was injured, while driving along a street on
the evening of the Fourth of July, by the explosion of a cannon
cracker, thrown and exploded by some one in a crowd of thirty
or more, who were obstructing the sidewalk, and in a tumultuous
manner engaged in exploding firecrackers, but that failed to al-
lege that there was any common intent or purpose to injure
the plaintiff.105 Still, in Kentucky, where on Christmas Eve a
crowd composed of a thousand persons assembled in the main
street of a city, and discharged missiles loaded with explosives
at private property, it was held that the gathering constituted a
riotous or tumultuous assemblage of people within the meaning
of the statute, and that the city, having notice of the danger, was
responsible for the damages inflicted.106 But although a crowd
may assemble for a lawful purpose, it may subsequently unite in
unlawful action and do injury for which a city will be liable.107
Under the New Hampshire statute a city was held liable for
damages, although the city could not have prevented the de-
struction, and although none of the rioters were inhabitants of
the city.108 And under this statute, a newspaper proprietor is
entitled to recover damages where his printing materials have
been destroyed by a mob. He may recover for damages resulting
from the interruption or destruction of his business, and for
injury to the goodwill, of his paper, to the extent that such in-
terruption and injury are the direct and natural results of the
attacks of the mob.109 A city, however, will not be liable where,
in the daytime, an old, unoccupied building is demolished by a
crowd of boys who disperse upon the appearance of a police
105 Aaron v. City of Wausau, 98 ing Jolley '& Admx. v. City of Hawes-
Wis. 592, 74 N. W. 354, 40 L. E. A. ville, 89 Ky. 280, 12 S. W. 313.
733. 10T Solomon v. City of Kingston,
106 City of Madisonville v. Bishop, 24 Hun (1ST. Y.), 562.
113 Ky. 106, 67 S. W. 269, 57 L. R. 108 Palmer v. City of Concord, 48
A. 130, citing State v. Brown, 69 N. H. 211, 97 Am. Dec. 605.
Ind. 95, 35 Am. Rep. 210; Sanders 109 Palmer v. City of Concord, 48
v. State, 60 Ga. 126, and distinguish- N. H. 211, 97 Am. Dec. 605.
§ 554] RESPONSIBILITY OF GOVERNMENT FOR MOB VIOLENCE. 540
officer, and who show no intent to resist opposition.110 A keeper
of a gambling-house is not entitled to recover for property de-
stroyed in a riot in such house arising from a dispute as to a
gambling transaction, where the statute provides that no one can
recover if the destruction of his property was caused by his illegal
or improper conduct.111 A municipal corporation is not relieved
from liability because the state militia were sent to the scene
of the disturbance.112 It is no defense, under the statute of
Kansas, that the city was unable to prevent the injury.113 But
the fact that there was no rioting or fighting or unnecessary
noise will not excuse a city from liability where a crowd assem-
bles and unlawfully tears down buildings without notice or
warning to the owner, and where the police do not endeavor to
prevent the execution of the intention of those who have so
assembled.114 A municipal corporation cannot relieve itself from
liability by showing that it used all its power to prevent the loss
of property, or that it was also protected by the state and fed-
eral governments.115 An owner of property is entitled to recover
notwithstanding the fact that his employees, when attacked by
110 Duryea v. New York, 10 Daly
(N. Y.), 300.
111 Underbill v. Manchester, 45 N.
H. 214. As to injuries caused to
property employed for unlawful pur-
poses, see, also, Ely v. Niagara
County, 36 N. Y. 297; Blodgett v.
Syracuse, 36 Barb. (N. Y.) 526.
112 Allegheny County v. Gibson, 90
Pa. 397, 35 Am. Eep. 670. See, also,
cases holding that a city is not re-
sponsible where the acts have been
committed by an organized body of
citizens acting for the state. Street
v. New Orleans, 32 La. Ann. 577;
and that it may be shown in mitiga-
tion of damages that an ordinance
of the city was violated by the
plaintiff in exposing their property
in the public market, Fortunich v.
New Orleans, 14 La. Ann. 115. A
judgment for the plaintiff is not
justified by evidence that on the
afternoon of an election day a crowd,
varying in number from e^ght to
thirty, partially demolished with an
ax, a crowbar, a rope and sticks an
occupied building, and removed parts
thereof, where it appeared that on
notification police officers proceeded
to the scene, and that the crowd
thereupon dispersed, one boy eleven
years of age being arrested, and
where it appeared that the city had
no notice of any such acts or of any
threat to perform them, and that it
had no reason to apprehend that an
attempt would be made to injure the
property. Adamson v. City of New
York, 96 N. Y. Supp. 907, 110 App.
Div. 98.
113 City of lola v. Birnbaum, 71
Kan. 600, 81 Pac. 198.
114 Marshall v. City of Buffalo, 176
N. Y. 545, 68 N. E. 1119; S. C., 71
N. Y. Supp. 719, 63 App. Div. 603.
115 City of Chicago v. Pennsylvania
Co., 119 Fed. 497.
541 COMMON PURPOSE OF CROWD. j"£ 55*
the mob, might have lawfully resisted, but instead of doing si>
left the property on account of fear of the mob.116
116 Spring Valley Coal Co. v. Oitv formal and express, but may ba
of Spring Valley, 96 111. App. 230 inferred from the facts and eirsuzn-
The agreement to do the unlawful stances. Mitchell's Admr. v. Corn-
acts essential to constitute a crowd missioners of Champaign County, »
an unlawful assemblage need not be Ohio St. & C. P. Dec. 821.
555] CLAIMS AGAINST GOVERNMENTS. 542
CHAPTER XVI.
CLAIMS AGAINST GOVERNMENTS.
§ 555. In general.
§ 556. Spanish war claims commission.
§ 557. Citizen must seek redress through .his government.
§ 558. Foreigners excluded from suing.
§ 559. Suits by one state against another.
§ 560. Presentation through Department of State.
§ 561. Action against other governments.
§ 562. Eules of Department of State.
§ 563. Discretion of government.
§ 564. Policy of Great Britain.
§ 565. Objections to presentation of claims.
§ 566. Fraud in claim.
§ 567. Citizenship.
§ 568. Policy of the United States.
§ 569. Naturalization has no retroactive effect.
§ 570. Assignability of right.
§ 571. Assignment of award.
§ 572. Claim of bankrupt.
§ 573. Eesort to local remedies.
§ 574. Courts of South American republics.
§ 575. Claim based on treaty with Italy.
§ 576. Another instance.
§ 577. Discrimination against American citizens.
§ 578. Moneys received from foreign governments in trust for American
citizens.
§ 579. Payment of interest in claims.
§ 580. Default not attributed to government.
§ 581. Questions involving title to real estate.
§ 582. Claims arising on contracts.
§ 583. Court of claims.
§ 584. Jurisdictional requirements.
§ 585. The Bowman Act.
§ 586. Liberal construction of act.
§ 587. The Tucker Act.
§ 588. Concurrent jurisdiction of district and circuit courts.
§ 589. Procedure under the act.
§ 590. Judgments and appeals.
§ 555. In general. — Claims against governments sometimes
arise under the provisions of treaties, but usually are based upon
543 SPANISH WAR CLAIMS COMMISSION. [§ 556
the general principles of international law. We shall not ex
amine in detail the many cases in which claims have been pre-
sented either against the government of the United States or by
the United States in behalf of its own citizens against other gov-
ernments, but shall state some of the more general rules applic-
able to claims against governments.1 The treaty concluded be-
tween the United States and Spain on December 10, 1898, pro-
vided: "The United States and Spain mutually relinquish all
claims for indemnity, national and individual, of every kind, of
either government, or of its citizens or subjects, against the other
government, that have arisen since the beginning of the late in-
surrection in Cuba, and prior to the exchange of ratifications of
the present treaty, including all claims for indemnity for the cost
of the war. The United States will adjudicate and settle the
claims of its citizens against Spain relinquished in this article. ' '
§ 556. Spanish war claims commission.— In 1901, pursuant
to this provision of the treaty, Congress passed an act authoriz-
ing the President to appoint five suitable persons, learned in the
[aw, to constitute a commission, "whose duty it shall be, and it
shall have jurisdiction, to receive, examine and adjudicate all
claims of citizens of the United States against Spain, which the
United States agreed to adjudicate and settle" by the treaty.
The commission "shall adjudicate said claims according to the
merits of the several cases, the principles of equity, and of in-
ternational law." The commission was empowered to make all
necessary or convenient rules for the transaction of business, the
rules and mode of procedure to conform, so far as practicable, to
the mode of procedure and practice of the circuit courts of the
United States. The award made in favor of any claimant, it
was provided, should be only for the amount of the actual and
direct damage which the claimant should prove that he had sus-
tained. No award was to be made for remote or prospective
damages, nor was interest to be allowed on any claim. All
awards were to be final, unless a new trial or hearing should be
granted. The commission, when in doubt, it was provided, as to
1 The numerous cases of this char- tions and Moore 's International Law
acter that have arisen may be found Digest,
in Moore's International Arbitra- - 30 U. S. Stats, at Large, 1757.
§§ 557, 558] CLAIMS AGAINST GOVERNMENTS. 544
any question of law arising upon the facts before them, might
state the facts and the question of law so arising, and certify the
same to the supreme court of the United States for its decision/'5
§ 557. Citizen must seek redress through his government—
If a citizen of one country is injured by another, redress for such
act must be sought through his own government. "One nation
treats with the citizens of another," says Mr. Chief Justice
Waite, "only through their government. A sovereign cannot be
sued in his own courts without his consent. His own dignity,
as well as the dignity of the nation he represents, prevents his
appearance to answer a suit against him in the courts of another
sovereignty, except in performance of his obligations, by treaty
or otherwise, voluntarily assumed. Hence, a citizen of one na-
tion wronged by the conduct of another nation must seek redress
through his own government. His sovereign must assume the
responsibility of presenting his claim, or it need not be considered.
If this responsibility is assumed, the claim may be prosecuted a*s
one nation proceeds against another, not by suit in the courts,
as of right, but by diplomacy, or, if need be, by war. It rests
with the sovereign against whom the demand is made to deter-
mine for himself what he wrill do in respect to it. He may pay
or reject it; he may submit to arbitration, open his own courts
to suit,, or consent to be tried in the courts of another nation.
All depends upon himself. ' ' 4
§ 558. Foreigners excluded from suing. — The supreme court
of the United States decided that subjects of other powers, who
gave aid and comfort to the enemy during the war of the Rebel-
lion were excluded from suing for such proceeds under the aban-
doned and captured property act. "It may be that foreigners,"
said the court, "who have given aid and comfort to the enemies
of the United States are in equity as much entitled to the privi-
leges of the act as the pardoned enemies themselves; but that is
for Congress to determine, and not for us. We have decided that
the pardon closes the eyes of the courts to the offending acts,
or, perhaps more properly, furnishes conclusive evidence that they
3 31 U. S. Stats, at Large, 879.
4 United States v. Dickelman, 92 U. S. 520, 23 L. ed. 742.
545 SUITS BY ONE STATE AGAINST ANOTHER. [§ 559
never existed as against the government. It is with the legisla-
tive department of the government, not the judicial, to say
whether the same rule shall be applied in cases where there can
be no pardon by the President. A pardon of an offense removes
the offending act out of sight ; but if there is no offense in the
eye of the law, there can be no pardon. Consequently, the acts
which are not extinguished by a pardon remain to confront the
actor. "5
§ 559. Suits by one state against another. — A state cannot
permit the use of its name in a suit for the benefit of one of its
own citizens against another state, as it cannot be deemed to be
an independent nation possessing the right of making an impera-
tive demand upon another independent state for the payments
of debts due to citizens of the former; nor can it create a con-
troversy by assuming the prosecution of such debts.6 The cir-
cuit court of the United States has no jurisdiction to entertain a
suit by aliens, the object of which is to enjoin the attorney gen-
eral and the attorneys of the several countries of a state from
bringing suit in the name of the state for the purpose of enforc-
ing the collection of taxes, for whose payment coupons of the
bonds of such state had been tendered. Such a suit is, in law
and in effect, a suit by the subjects of a foreign state against a
state of the Union, and comes within the prohibition of the
eleventh amendment to the Constitution. There exists no rem-
edy against the state for a breach of its contract, and the at-
tempt indirectly by injunction to compel the specific performance
of the contract, by forbidding the performance of those acts
which constitute the breaches of the contract, is in effect, even
though not in form, a suit against the state.7 While a suit
5 Young v. United States, 97 U. 8 Sup. Ct. Eep. 164, 31 L. ed. 216;
S. 68, 24 L. ed. 992. Pennoyer v. McConnaughy, 140 U.
6 New Hampshire v. Louisiana, S. 12, 11 Sup. Ct. Eep. 702, 35 L.
108 U. S. 90, 2 Sup. Ct. Eep. 183, ed. 366. Where the state is the real
27 L. ed. 661. In suits against of- party, a removal has been refused,
ficers of a state, jurisdiction has Ferguson v. Eoss, 38 Fed. 163, 3
been denied where the suits were in L. E. A. 324; State v. Columbus etc.
effect against the state. Cunningham E. Co., 48 Fed. 628.
v. Macon etc. E. E. Co., 109 U. S. 7 Ex parte Ayers, 123 U. S. 489,
450, 3 Sup. Ct. Eep. 295, 27 L. ed. 8 Sup. Ct. Eep. 164, 31 L. ed. 216.
993; Ex parte Ayers, 123 U. S. 489,
Treaties — 35
§§ 560, 561] CLAIMS AGAINST GOVERNMENTS. 546
against the officers of a state to compel them to perform its con-
tracts is, in substance, a suit against the state itself, still an in-
junction may be issued against an officer of a state to prevent
him from executing a statute of the state conflicting with the
constitution of the United States, when by such execution the
rights and privileges of a private person would be violated and
destroyed.8
§ 560. Presentation through Department of State. — Aliens
who desire to present claims against the United States for un-
liquidated damages must present them to the Department of
State, through diplomatic agencies.9 Mr. Fish, Secretary of
State, where claims were presented by French citizens and other
aliens through Congress to the Committee on War Claims said:
"I have to remark that such presentation is entirely inconsistent
with usage, which requires that aliens must address this govern-
ment only through the diplomatic representatives of their own
governments. This Department refuses to entertain applications
or to receive claims from aliens, except through a responsible
presentation by the regularly accredited representative of their
government. ' ' 10
§ 561. Action against other governments. — Before the United
States will present the claim of one of its citizens to another gov-
ernment, there must be presented to the Secretary of State a peti-
tion and a sworn statement showing in detail the injury suffered,
and such proof as may be secured to sustain the averments of
the petition.11 If the claim arises from contract, the diplomatic
representative of the United States will not interfere in the ab-
sence of specific instructions, and if it arise from a tort, he will
8 Pennoyer v. McConnaughy, 140 10 To Mr. Lawrence, M. C., April
U. S. 12, 11 Sup. Ct. Eep. 699, 35 22, 1874, Magoon 's Eep. 340.
L. ed. 363. " Mr. Marcy, Secretary of State,
9 Mr. Magoon, Law Officer, Di- to Mr. Grain, Feb. 24, 1854, 42 MS.
vision of Insular Affairs, War Dept., Dom. Let. 244; Mr. Uhl, Acting
Feb. 6, 1901, Magoon 'a Eep. 338; Secretary of State, to Attorney Gen-
Eeport No. 498, Committee on War eral, June 23, 1894, 197 MS. Dom.
Claims, May 2, 1874, 43 Cong. 1st Let. 449.
Sess.
547 RULES OF DEPARTMENT OF STATE. [ § 562
also await instructions before acting, unless an assault has been
made against the person of the claimant, or there is an immediate
necessity for acting before it is possible to consult the Department
of State.12
•
§ 562. Rules of Department of State.— The Department of
State of the United States has published rules for the prosecution
of claims by citizens of the United States against foreign govern-
ments, not founded on contract, in the prosecution of which they
i may wish the aid of the Department of State. These rules, it is
stated, are substantially those which have been adopted by com-
: missions organized under conventions between the United States
i and foreign governments for the adjustment of claims. The De-
partment advises that, in preparing and forwarding their papers,
citizens conform as nearly as possible to these rules, which are as
follows :
"Each claimant should file a memorial, in triplicate, properly
dated, setting forth minutely and particularly the facts and cir-
cumstances from which the right to prefer such claim is derived
by the claimant. This memorial should be verified by his or her
oath or affirmation.
"All subsequent communications to the Department in the na-
ture of statements of fact, arguments, or briefs should likewise
j be furnished in triplicate.
' ' The memorial and all the accompanying papers should have a
i margin of at least one inch on each side of the page, so as to ad-
mit of their being bound in volumes for preservation and con-
^venient reference; and the pages should succeed each other, like
those of a book, and be readable without inverting them.
"When any of the papers mentioned in rule 11 are known to
i have been already furnished to the Department by other claim-
ants, it will be unnecessary to repeat them in a subsequent mem-
orial. A particular description, with a reference to the date un-
jider which they were previously transmitted, is sufficient.
"Nor is it necessary, when it is alleged that several vessels
have been captured by the same cruiser, to repeat in each mem-
orial the circumstances in respect to the equipment, arming, man-
t'ning, flag, etc., of such cruiser, which are relied upon as the evi-
12 Instructions to Diplomatic Of Seers (1897), sec. 174, p. 68.
CLAIMS AGAINST GOVERNMENTS. 54S
dence of the responsibility of a foreign government for its alleged
tortious acts. A simple reference to an adoption of one memorial
in which such facts have been fully stated, will suffice.
"It is proper that the interposition of this government with the
foreign government Against which the claim is presented should
be requested in express terms, to avoid a possible objection to the
jurisdiction of a future commission on the ground of the gen-
erality of the claim.
' ' Claims of citizens against the government of the United States
are not generally under the cognizance of this department. They
are usually subjects for the consideration of some other depart-
ment or of the Court of Claims, or for an appeal to Congress.
' ' In every memorial should be set forth —
"1. The amount of the claim; the time when and place where
it arose, the kind or kinds and amount of property lost or in-
jured ; the facts and circumstances attending the loss and injury
out of which the claim arises ; the principles and causes which
lie at the foundation of the case.
"2. For and in behalf of whom the claim is preferred, giving
Christian name and surname in full.
' ' 3. Whether the claimant is now a citizen of the United States,
and, if so, whether he is a native or naturalized citizen and where
is now his domicile; and, if he claims in his own right, then
whether he was a citizen when the claim had its origin and where
was then his domicile; and, if he claims in the right of another,
then whether such other was a citizen when the claim had its
origin and where was then and where is now his domicile; and
if, in either case, the domicile of the claimant at the time the
claim had its origin was in any foreign country, then whether
such claimant was then a subject of the government of such coun-
try or had taken any oath of allegiance thereto.
' ' 4. Whether the entire amount of the claim does now, and did
at the time when it had its origin, belong solely and absolutely to
the claimant; and, if any other person is or has been interested
therein, or in any part thereof, then who is such other person
and what is or was the nature and extent of his interest; and
how, when, and by what means and for what considerations the
transfer of rights or interests, if any such were made, took place
between the parties.
549 RULES OF DEPARTMENT OF STATE. [§ 562
"5. Whether the claimant, or any other who may at any time
have been entitled to the amount claimed, or any part thereof,
has ever received any, and, if any, what, sum of money or other
equivalent or indemnification for the whole or any part of the
loss or injury upon which the claim was founded; and, if so,
when and from whom the same was received.
"6. All testimony should be in writing, and upon oath or af-
firmation, duly administered according to the laws of the place
where the same is taken, by a magistrate or other person compe-
tent by such laws to take depositions, having no interest in the
claim to which the testimony relates and not being the agent or
attorney of any person having such interest, and it must be
certified by him that such is the case. The credibility of the af-
fiant or deponent, if known to such magistrate or other person
authorized to take such testimony, should be certified by him ; and,
if not known, should be certified on the same paper upon oath by
some other person known to such magistrate having no interest
in such claim .and not being the agent or attorney of any person
having such interest, whose credibility must be certified lay such
magistrate. The deposition should be reduced to writing by the
person taking the same, or by some person in his presence having
no interest and not being agent or attorney of any person hav-
ing an interest in the claim, and should be carefully read to the
deponent by the magistrate before being signed by him, and this
should be certified.
"7. Depositions in any city, port, or place without the limits
of the United States may be taken before any consul or other pub-
lic civil officer of the United States resident in such city, port, or
place, having no interest, and not being agent or attorney of any
person having an interest, in the claim to which the testimony so
taken relates. In all other cases, whether in the United States
or in any foreign place, the right of the person taking the deposi-
tion to administer oaths by the laws of the place must be certified.
"8. Every affiant or deponent should state in his deposition nis
age, place of birth, residence, and occupation, and where was his
residence and what was his occupation at the time the events
took place in regard to which he deposes; and must also state if
he have any, and, if any, what, interest in the claim to support
which his testimony is taken; and, if he have any contingent in-
terest in the same, to what extent, and upon the happening of
§ 562] CLAIMS AGAINST GOVERNMENTS. 550
what event, he will be entitled to receive any part of the sum
which may be awarded. He should also state whether he be the
agent or attorney of the claimant or of any person having an in-
terest in the claim.
"9. Original papers exhibited in proof should be verified as
originals by the oath of a witness, whose credibility must be cer-
tified as required in the sixth of these rules; but, when the fact
is within the exclusive knowledge of the claimant, it may be
verified by his own oath or affirmation. Papers in the handwrit-
ing of anyone who is deceased or whose residence is unknown to
the claimant may be verified by proof of such handwriting and of
the death of the party or his removal to places unknown.
"10. All testimony taken in any foreign language and all pa-
pers and documents in any foreign language which may be ex-
hibited in proof should be accompanied by a translation of the
same into the English language.
"11. When the claim arises from the seizure or loss of any ship
or vessel, or the cargo of any ship or vessel should be produced,
together with the original clearance, manifests, and all other
papers and documents required by the laws of the United States
which she possessed on her last voyage from the United States,
when the same are in the possession of the claimant or can be ob-
tained by him, and, when not, certified copies of the same should
be produced, together with his oath or affirmation that the orig-
inals are not in his possession and cannot be obtained by him.
"12. In all cases where property of any description for the
seizure or loss of which a claim has been presented was insured
at the time of such seizure or loss, the original policy of insur-
ance, or a certified copy thereof, should be produced.
"13. If the claimant be a naturalized citizen of the United
States, a copy of the record of his naturalization, duly certified,
should be produced.
"14. Documentary proof should be authenticated by proper
certificates or by the oath of a witness.
"15. If the claimant shall have employed counsel, the name of
such counsel should, with his address, be signed to the memorial
and entered upon the record, so that all necessary notices may be
addressed to such counsel or agent respecting the case." 13
13 Circular Relating to Claims Against Foreign Governments, Department of
State, March 5, 1906.
551 DISCRETION OF GOVERNMENT. [§§ 563, 564
§ 563. Discretion of government. — If the damages sought are
speculative and exorbitant in amount, the State Department will
not present a claim to a foreign government, although the claim
is based on a wrong actually committed.14 The government will
exercise a wise and judicious discretion, when an application is
made to it to present the claim of a citizen against a foreign
power.15 When the claim is passed through diplomatic channels,
it is a national claim as against the foreign government, although
between the United States and its citizens the claim may be pri-
vate. "Over such claims the prosecuting government has full
control. It may, as a matter of pure right, refuse to present them
at all; it may surrender them or compromise them without con-
sulting the claimants The rights of the citizens for dip-
lomatic redress are as against his own not the foreign, govern-
ment."16 As stated by Mr. Marcy, "the government of the
United States does not feel called upon to interpose in behalf of
every just claim held by its citizens against foreign nations.
When individuals see proper to intrust their property to the safe-
keeping of another government it is to be supposed that they
have satisfied themselves of the ability and intention of that gov-
ernment to restore that which may have been confided to it, and
the deposit is accordingly made upon personal risk. ' ' 17
§ 564. Policy of Great Britain. — In a circular letter addressed
in 1848 to the representatives of Great Britain in foreign states.
Lord Palmerston stated that as some misconception appeared to
exist as to the right of the government to interfere in support of
the unsatisfied claims of British subjects holding public bonds
and securities of foreign states, he declared that it was entirely a
matter of discretion, and not one of international right. As a
matter of international right alone, he asserted that the govern-
ment of one country possesses the undoubted right to take up as
a matter of diplomatic negotiation any well-founded complaint
14 Mr. Marcy, Secretary of State, 16 Mr. Frelinghuysen, Secretary of
to Mr. Munro, June 10, 1856, 45 MS. State, to Messrs. Mullan & King,
Dom. Let. 45. Feb. 11, 1884.
15 United States v. La Abra Silver 1T Mr. Marcy, Secretary of State,
Min. (Jo., 29 Ct. of Cl. 432; Black, 9 to Mr. Egbert, Nov. 15, 1854, 43
Op. Atty. Gen. 338. MS. Dom. Let. 219.
§ 565] CLAIMS AGAINST GOVERNMENTS. 552
preferred by any of its citizens against the government of another
country, but he added :
"It has hitherto been thought by the successive governments of
Great Britain undesirable that British subjects should invest their
capital in loans to foreign governments instead of employing it
in profitable undertakings at home ; and with a view to dis-
courage hazardous loans to foreign governments, who may be
either unable or unwilling to pay the stipulated interest there-
upon, the British government has hitherto thought it the best pol-
icy to abstain from taking up as international questions the com-
plaints made by British subjects against foreign governments
which have failed to make good their engagements in regard to
such pecuniary transactions. For the British government has
considered that the losses of imprudent men, who have placed
mistaken confidence in the good faith of foreign governments,
would prove a salutary warning to others, and would prevent any
other foreign loans from being raised in Great Britain, except by
governments of known good faith and ascertained solvency. But
nevertheless it might happen that the loss occasioned to British
subjects by the nonpayment of interest on loans made by them to
foreign governments might become so great that it would be too
high a price for the nation to pay for such a warning as to the
future, and in such a state of things it might become the duty of
the British government to make these matters the subject of
diplomatic negotiation."18
§ 565. Objections to presentation of claims. — Although a citi-
zen may not lose his citizenship, he may conduct himself in such a
manner as to forfeit to a certain degree the right to claim na-
tional protection.19 It was sought, by an inquiry made by the
consul of the United States at Alexandria, Egypt, to ascertain
whether citizens of the United States, who, although graduates
of West Point or Annapolis, had been engaged on the side of the
Confederacy in the Civil War, and who were in. the service of the
Khedive of Egypt, were entitled to the protection of th* consulate.
The response returned by the Department of State was: "It is
conceived to be the duty of this government impartially to pro-
tect all citizens abroad in conformity with treaties and the pub-
18 Hall's Int. Law, 294, 295. 1!) 3 Moore Int. Arbitrations, 2729.
FRAUD IN CLAIM. [§ 566
lie law. No exception can properly be made in regard to persons
belonging to the classes to which you refer, unless that exception
shall be required by some constitutional provision or statutory en-
actment. It is believed there is none applicable in this instance."
If, however, these persons had, by their express contract with the
Khedive, renounced the right of appeal to their ow,n government,
no ground would then exist for interference in their behalf.20
It was announced by the attorney general of the United States,
that when jurisdiction of any particular case has been lawfully
assumed by the government a co-ordinate department should de-
cline to interfere, and hence, the political department of the gov-
ernment will postpone the consideration of questions relating to
reclamation and indemnity, where jurisdiction has been acquired
by the courts in cases of maritime capture, until the judiciary
has finally fulfilled its functions.21
§ 566. Fraud in claim. — Fraud will justify or compel the gov-
ernment to relinquish or refuse to present a claim in behalf of its
citizens. Mr. Seward says that it has become an established
usage, "having the authority of a principle, in the correspondence
between enlightened governments, in relation to the claims of citi-
zens or subjects, that any deception practiced by a claimant upon
his own government in regard to a controversy with a foreign
government for the purpose of enhancing his claim, or influenc-
ing the proceedings of his government, forfeits all title of the
party attempting such deception to the protection and aid of his
government in the controversy in question, because an honorable
government cannot consent to complicate itself in a matter in
which it has itself been made or attempted to be made the victim
of a fraud, for the benefit of the dishonest party. " 22 So if an
act on which a claim is based is against public policy, the govern-
ment will refuse its assistance.23 A citizen of the United States
requested the Department of State to support his claim for ser
vices which he claimed he had rendered under a contract with
20 Mr. Fish, Secretary of State, to ter, May 30, 1862, MS, Notes to
Mr. Butler, Oct. 5, 1871, MS, Inst. Great Britain, IX, 187.
Barbary Powers, XV, 62. -• Mr. Seward, Secretary of State
21 Bates, 11 Op. Atty. Gen. 117. to Mr. Whitney, July 24, 1868, 7f
22 To Lord Lyons, British Minis- MS. Dom. Let. 119.
§ 567 j CLAIMS AGAINST GOVERNMENTS. 554
the President of Venezuela to obtain a revision of the awards
made by a commission under a treaty between that country and
the United States. The Department, however, said in reply;
"The government of the United States cannot recognize a con-
tract alleged to have been entered into by a citizen of the United
States with the executive or agent of another government, for the
purpose of securing the setting aside of a treaty between this and
such other government. The services which you claim to have,
performed related chiefly to the procurement of action on the part
of Congress, these services being performed for the government
of Venezuela. Under the constitution of the United States, the
only organ of communication between this and foreign govern-
ments is the President. This Department cannot look with any-
thing but disapprobation upon a foreign government seeking to
approach a branch of the government of the United States through
another channel. It may be stated as a fact, although it is not
material, that at the very time at which you allege that your em-
ployment began this Department was demanding of the govern-
ment of Venezuela the execution of the treaty of 1866. "24 For
these reasons the United States refused to interest itself in th<>
presentation of this claim.
§ 567. Citizenship. — The government of the United States in
terferes only in behalf of its own citizens.25 The making of a
declaration of intention to become a citizen will not make the
declarant a citizen.26 Where injuries had been committed while
a person was a German subject, and before he became a citizen
of the United States, the Department of State said : * ' If denial of
justice subsequent to the acquisition of citizenship takes the case
out of the rule that a claim maturing before citizenship cannot
be the subject of diplomatic intervention, then the rule would it-
self be abrogated, since there is no litigated case in which such
denial could not be set up."27 In 1819 Lord Castlereagh said
24 Mr. Blaine, Secretary of State, 26 Mr. Frelinghuysen, Secretary of
to Mr. Matchett, March 19, 1891, 181 State, to Mr. Alfonso, Nov. 13, 1884,
MS. Dom. Let. 273. 153 MS. Dom. Let. 194.
25 Mr. Forsyth, Secretary of State, 27 Mr. Porter, Acting Secretary of
to Mr. Champly, April 15, 1837, 29 State, to Messrs. Kennedy & Shella-
MS. Dom. Let. 1; The Vanderput, berger, Jan. 4, 1887, S. Doc. 287, 57
37 Ct. of 01. 396; Bodemiiller v. Cong. 1st. Sess.
United States, 39 Fed. 437
555 CITIZENSHIP. [§ 567
that two British subjects had been considered by the Cabinet as
having forfeited their rights to protection from their government,
because "they had identified themselves, in part at least, with
the Indians, by going amongst them with other purposes than
those of innocent trade; by sharing in their sympathies too
actively when they were upon the eve of hostilities with the United
States; by feeding their complaints; by imparting to them coun-
sel; by heightening their resentments, and thus at all events in-
creasing the predispositions which they found existing to the
war, if they did not originally provoke it."28 "A vessel of the
United States voluntarily entering into the service of a foreign
power in aid of military or naval operations must be regarded as
relying exclusively upon the protection of that power, and as
renouncing, while such employment continues, any claim to the
protection of the United States. ' ' 29
The Portuguese government seized a railway constructed in
Portugal, by Edward MacMurdo, a citizen of the United States,
operating through a Portuguese corporation, and against this ac-
tion protests were made both by the United States and Great
Britain, to which the government of Portugal replied that it could
only deal with the Portuguese company, through which all rights
of the American and British stockholders should be maintained.
Lord Salisbury, in his instructions to the British minister at
Lisbon, said that the British investors had suffered "a grievous
wrong in consequence of the forcible confiscation by the Portu-
guese government of the line and the materials belonging to the
British company, and of the securities on which the debentures
of the British company had been advanced; and that for that
wrong Her Majesty's government are bound to ask for compensa-
tion from the government of Portugal. ' ' 30 Mr. Blaine, in his let-
ter to the American Minister at Lisbon, declared that upon a
full consideration of the circumstances, "this government is
forced to the conclusion, that the violent seizure of the railway
by the Portuguese government was an act of confiscation, which
renders it the duty of the government of the United States to ask
that compensation should be made to such citizens of this coun-
28 Mr. Bush, Minister at London, Mr. Murray, Dec. 7, 1869, 82 MS.
to Mr. Adams, Secretary of State, Dom. Let. 453.
MS. Desp. from England. 30 Parl. Pop. Cd. 5903, p. 58.
29 Mr. Fish, Secretary of State, to
§ 568] CLAIMS AGAINST GOVERNMENTS. 556
try as may be involved. With respect to the case of Colonel
MacMurdo, who is now represented by his widow, Katherine A.
MacMurdo, his sole executrix and legatee, it is to be observed
that by the terms of the concession the company which he was
required to form was to include himself, and that his personal
liability was not merged in that of the company. But in any case,
the Portuguese company, being without remedy, and having now
practically ceased to exist, the only recourse of those whose prop-
erty has been confiscated is the intervention of the respective gov-
ernments. ' '
A protocol was signed at Berne July 13, 1891, between the
United States, Great Britain and Portugal, by which they agreed
to submit to a tribunal of arbitration the question of "the amount
of the compensation due by the Portuguese government to the
claimants of the other two countries, in consequence of the rescis-
sion of the concession of the Lourenco Marques railroad and the
taking possession of that railroad by the Portuguese government."
This tribunal made an award of damages, which the Portuguese
government paid.31
§ 568. Policy of the United States.— It is the policy of the
United States to refuse to present a claim to a foreign govern-
ment, founded on transactions in which the neutrality laws of
the United States were violated.32 The Department of State will
not entertain a claim against the United States, which the claim-
ant has elected to present to Congress, as long as the claim is be-
fore Congress.33 A widow, a citizen of the United States, suc-
ceeded as an heir to the claim of her husband, an alien, against a
foreign government, and when she sought, in her character as an
American citizen, the good offices of the government, the De-
partment of State granted her request. In doing so, it said that
"while, in the opinion of the Department, a citizen of the United
States is not entitled to invoke the assistance of this government
in respect of a claim against another government acquired from
a foreigner by marriage and assignment (by partnership arrange-
31 2 Moore's International Arbi- 3! Mr. Fish, Secretary of State, to
tration, 1865-1889. Mr. Schlozer, German Minister, Sept.
'••2 Mr. Bayard, Secretary of State, 14, 1874, MS. Notes to German Leg.
to Messrs. Morris and Fillette, July IX, 44.
28, 1888, 169 MS. Dom. Let. 263.
557 NATURALIZATION HAS NO RETROACTIVE EFFECT. [§§ 569, 570
ment or otherwise), yet it is believed that where such claim comes
to the wife by succession upon the death of her husband, as in
this case, the offices of this government should be extended to
her."34
\
§ 569. Naturalization has no retroactive effect. — Naturaliza-
tion cannot be allowed to. have a retroactive effect, so as to in-
duce the government to intercede in a claimant's behalf.35 The
government does not undertake, by adopting; an alien as a citi-
zen, the patronage of a claim which he may have against another
government. "To admit that he can charge it with this bur-
den." said Mr. Fish, Secretary of State, "would allow him to call
upon a dozen governments in succession, to each of 'which he
might transfer his allegiance, to urge his claim. Under such a
rule the government supposed to be indebted could never know
when the discussion of a claim would cease. All governments
are. therefore, interested in resisting such pretensions."36 On
another occasion Mr. Fish stated that "it would be a monstrous
doctrine, which this government would not tolerate for a moment,
that a citizen of the United States, who might deem himself in-
jured by the authorities of the United States or of any state,
could, by transferring his allegiance to another power, confer
upon these powers the right to inquire into the legality of the
proceedings by which he may have been injured while a citi-
§ 570. Assignability of right. — The United States will not
"recognize an assignment of a claim against a foreign country
made by a citizen or subject of that country to a citizen of this
for the purpose of invoking diplomatic aid in the recovery there-
of. Still less will it undertake to aid in the recovery of claims
against subjects of foreign countries which originally accrued in
favor of their fellow-subjects and have been assigned by the lat-
54 Mr. Hill, Assistant Secretary of to Mr- Ujhazi, Aug. 26, 1856, 45 MS.
State, to Messrs. Coudert Brothers, ^l^' 46*-
38 89 MS. Dom. Let. 348. May 16,
June 9, 1900, 245 MS. Dom. Let.
484- 8T To Mr. Bachiller, April 8, 1874,
* Mr. Marcy, Secretary of State, MS. Dom. Let. 43.
§ 571] CLAIMS AGAINST GOVERNMENTS. 558
ter to American citizens."38 Mr. Evarts, while Secretary of
State, forcibly expressed the position of the government by de-
claring: "An assignment of a claim by a foreigner, or another
government to a citizen of the United States, even if such claim
be founded in* tort, is not conceived to impose on this government
any obligation to interfere in behalf of such citizen, in respect of
the government against which the complaint is made. This rule,
however, is especially applicable in matters of contract between
a foreigner and another government, or where a citizen of the
United States becomes the assignee of the contract. ' ' 39
§ 571. Assignment of award. — Where an award has been made
by the Commissioners of Alabama Claims under the treaty of 1871
between the United States and Great Britain, it constitutes a part
of the estate of the person in whose favor it is made, and will pass
to his assignee in bankruptcy. Such an assignee is authorized to
take vested rights in rem and in re possibilities coupled with an in-
terest in claims arising out of property.40 Mr. Justice Lamar, in
speaking of these claims, said: "Was the claim in this case
'property' in any sense of the term? We think it was. Who
can doubt but that the right to prosecute this claim before the
Court of Commissioners of Alabama Claims would have survived
to their legal representatives had the original claimants been
dead at the passage of the act of 1882. If so, the money re-
covered would have been distributable as assets of the estate.
While, as already stated, there were no means of compelling Con-
gress to distribute the fund received in virtue of the Geneva
award, and while the claimant was remediless with respect to any
proceedings by which he might be able to retrench his losses,
nevertheless there was at all times a moral obligation on the part
of the government to do justice to those who had suffered in
property. As we have shown from the history of the proceed-
ings leading up to the organization of the tribunal at Geneva,
these war premiums of insurance were recognized by the govern-
ment of the United States as valid claims, for which satisfaction
should be guaranteed. There was thus at all times a possibility
38 Mr. Gresham, Secretary of State, " To Mr- Hodgskin, Oct. 25, 1877,
•»*- ™ -r, 1,1 iir- • / 12° MS. Dorn. Let. 238.
to Mr. McDonald, Minister to Per-
550.
559 CLAIM OF BANKRUPT. [§§ 572, 573
that the government would see that they were paid. There was
a possibility of their being at some time valuable. They were
rights growing out of property — rights, it is true, that were not
enforceable until after the passage of the act of Congress, for the
distribution of the fund. But the act of Congress did not create
the rights. They had existed at all times since the losses oc-
curred. They were created by reason of losses having been suf-
fered. All that the act of Congress did was to provide a remedy
for the enforcement of that right."41
§ 572. Claim of bankrupt. — A claim of a bankrupt against a
foreign government will be transferred to his assignee in bank-
ruptcy, but if the claim is vaguely described in the schedule of
assets, and denominated worthless, it will not, on a general sale of
his accounts, notes and judgments, pass to a purchaser, who acts
for the benefit of the bankrupt with money supplied by the lat-
ter, where merely a nominal sum was paid, and the claim had a
large value.42
§ 573. Resort to local remedies. — It is a rule universally ad-
mitted that the regular course of justice will not be interfered
with until the foreigner claiming to have been injured shall have
proceeded to the court of last resort having jurisdiction ; 43 and
unless the injured party thus prosecutes his case, the govern-
ment of the United States is not obligated to make compensa-
tion.44 In a case where one state of the Union sought to recover
from another state on bonds and coupons, in a suit brought by
the state as assignee, Mr. Chief Justice Waite quoted with ap-
proval the language of Sir Robert Phillmore: "As a general
rule, the proposition of Martens seems to be correct, that the
foreigner can only claim to be put on the same footing as the
native creditor of the state."45 The chief justice himself said:
"There is no principle of international law which makes it the
duty of one nation to assume the collection of the claims against
41 Williams v. Heard, 140 U. S. ed. 203; Clark v. Clark, 17 How. (U.
529, 11 Sup. Ct. Eep. 885, 35 L. ed. S.) 315, 15 L. ed/77.
:550. *• Randolph, 1 Op. Atty. Gen. 25.
42 Phelps v. McDonald, 99 U. S. 44 Lincoln, 5 Op. Atty. Gen. 692.
298, 25 L. ed. 473. See, also, Lewis a Citing 2 Phillmore 'a Int. Law,
v. Bell, 17 How. (U. S.) 616, 15 L. p. 12.
§ 574] CLAIMS AGAINST GOVERNMENTS. 560
another nation, if the citizens themselves have ample means of
redress without the intervention of their government. ' ' 46 Where
a tort had been committed on an American citizen by a mob in
Cuba, Mr. McLane stated that while a government was obligated
to protect its citizens and to see that where justice is denied to
them by a foreign nation, that their injuries are redressed, "yet
this obligation always presupposes a resort, in the first instance,
to the ordinary means of defense or reparation which are af-
forded by the laws of the country in which their rights are in-
fringed, to w^hich laws they have voluntarily subjected them-
selves by entering within the sphere of their operation, and by
which they must consent to abide. It would be an unreasonable
and oppressive burden upon the intercourse between nations, that
they should be compelled to investigate and determine, in the
first instance, every personal offense committed by the citizens
of the one against the other. ' ' 47
§ 574. Courts of South American Republics. — Complaints
have frequently been made that the courts of the South Ameri-
can republics were inefficient, and that justice could not be se-
cured in them at all or only after great delay. But Mr. Seward
said: "We must, however, continue to repose confidence in their
independence and integrity, or we must take the broad ground
that those states are like those of oriental semi-civilized coun-
tries— outside the pale within which the law of nations, as gen-
erally accepted by Christendom, is understood to govern. The
people who go to these regions and encounter great risks in the
hope of great rewards must be regarded as taking all the cir-
cumstances into consideration, and cannot, with reason, ask their
government to complain that they stand on a common footing
with native subjects in respect to the alleged wants of an able,
prompt, and conscientious judiciary. We cannot undertake to
supervise the arrangements of the whole world for litigation, be-
cause American citizens voluntarily expose themselves to be con-
cerned in their deficiencies."48
46 New Hampshire v. Louisiana, 4S To Mr. Burton, Minister to Co-
108 U. S. 76, 2 Sup. Ct. Eep. 176, 27 lombia, April 27, 1866; No. 137,
L. ed. 662. Dip. Cor. 1866, III, 522, 523.
4T To Mr. B. J. Shain, May 28,
1834, 26 MS. Dom. Let. 263.
561 CLAIM BASED ON TREATY WITH ITALY. [§ 575
§ 575. Claim based on treaty with Italy. — In 1901 the com-
plaint of an Italian subject was presented to the Department of
State, claiming that a judgment entered in Colorado was in vio-
lation of the treaty of 1871 between the United States and Italy.
The portions of the treaty which it was contended related to the
subject were articles III and XIII. The first of these (article III)
declared that:
"The citizens of each of the high contracting parties shall re-
ceive, in the States and Territories of the other, the most con-
stant protection and security for their persons and property,
and shall enjoy in this respect the same rights and privileges
as are or shall be granted to the natives on their submitting them-
selves to the conditions imposed upon the natives "
The second provided (Art. XVIII) : "The citizens of either
party shall have free access to the courts of justice in order
to maintain and defend their own rights, without any other con-
ditions, restrictions, or taxes than such as are imposed upon
the natives; they shall, therefore, be free to employ, in defense
of their rights, such advocates, solicitors, notaries, agents, and
factors as they may judge proper in all their trials at law; and
such citizens or agents shall have free opportunity to be present
at the decisions and sentences of the tribunals in all cases which
may concern them ; and likewise at the taking of all examina-
tions and evidences which may be exhibited in the said trials."
In that case, the widow of Pietro Ferrara, an Italian subject,
instituted a suit in Colorado against a mining company to recover
damages for the death of her husband, who was an employee of
the company, and who was injured by the falling of a large rock
upon him while employed by the company, and whose death was
the result of his injuries. The court dismissed the action on the
ground that the plaintiff was a nonresident alien, and not en-
titled to prosecute it in the courts of that state. An appeal was
taken and was granted upon condition that the plaintiff should
file an appeal bond. She did not perfect the appeal, but filed a
motion for a new trial, and as one of the grounds of the motion it
was asserted that the judgment was in violation of the terms of the
treaty above set forth. Her motion for a new trial having been
denied, she appealed to the Italian government to make a demand
upon the United States for the sum of five thousand dollars, for
Treaties — 36
§ 576] CLAIMS AGAINST GOVERNMENTS. 562
which, according to the allegations of the demand, "she was
deprived the right of litigation in violation of the said treaty
between the two countries, and such other or further sum as
may be just and equitable for the affront and indignity which
she received by being thus discriminated against." Mr. Hay,
Secretary of State, said in reply that the case was not one for
diplomatic intervention, because the plaintiff had not exhausted
her judicial remedy. "It frequently happens," said he, "that
litigants are denied rights by the decisions of inferior courts and
are obliged, in order to establish such rights, to carry the case
to the courts of last resort. The plaintiff in the present case
should pursue the judicial remedy afforded by our laws, perfect-
ing her appeal to the court of appeals (the supreme court) of
Colorado, and, if necessary thereafter, by appropriate proceed-
ings, bring the case before the supreme court of the United
States. Furthermore, under the laws of the United States, the
circuit courts of the United States have original jurisdiction of
civil suits like the present one to which an alien is a party. It
is suggested for the consideration of the attorneys of the plain-
tiff whether an original suit should not be brought in the circuit
court of the United States for the district of Colorado. Until
the remedy of recourse to the civil tribunals has been exhausted
by the plaintiff, and justice is finally denied her, there appears
to be no ground for the presentation of a diplomatic claim. ' ' 49
§ 576. Another instance. — It would take us too far afield to
mention the many cases in which these principles have been
applied, but we may call attention to another instance in which
the views held by the United States were clearly expressed.
John H. Tunstall, a British subject, residing in the territory of
New Mexico, was killed. He was the owner of a ranch in that
territory, and had a partner, named McSween. An attachment
had been issued against the property of the latter, and the sheriff
authorized a deputy to serve the writ, and he levied on certain
livestock. Service of the writ was admitted by Tunstall, who
said to the deputy that he might attach the stock and place it in
49 Mr. Hay, Secretary of State, to any obligation to indemnify foreign
Signor Carignani, Italian Charg6, residents for a boycott. See section
Aug. 24, 1901, For. Eel. 1901, 308. 544, ante.
The United States cannot recognize
563 ANOTHER INSTANCE. [§ 576
charge of some one until such time as the courts should deter-
mine the question of ownership as between him and his partner,
McSween. Instead of following this course, the deputy departed,
and shortly after returned to the ranch with a posse. In the
meantime Tunstall had collected the stock and had proceeded
to drive it to the county seat, some miles distant. The deputy
sheriff then authorized one of the posse with eighteen others to
pursue Tunstall and capture the stock, and after pursuing him
for a distance of eighteen miles they overtook him and began to
fire, and although Tunstall sought to escape, he was shot in his
flight and killed. The shooting was witnessed by only three per-
sons, and subsequently two of these died through violence, and
i the third was not punished nor could he be located. It was con-
tended by the British government that the members of the party
in pursuit were the personal enemies of Tunstall, and that the
sheriff, through the action of his deputy and the posse, was guilty
of murder committed in the execution of legal process. Sir
Edward Thornton, the British Minister, asserted that the father
of the deceased possessed a pecuniary interest in the life of his
] son, arising from business operations conducted by him, and
therefore, as the sheriff was the agent of the United States, he,
the father, was entitled to recover indemnity from the United
; States. The Minister asserted that the father was powerless to
j recover damages from the Territory of New Mexico by legal
; proceedings or other means, and that while an American citizen
i might in a similar case appeal to Congress, an alien could not
: pursue this course, and, as a result, the United States must be
looked to for compensation. Mr. Evarts said he did not be-
; lieve that the killing of an American citizen under similar cir-
; cumstances in one of the British colonies would constitute a
I claim against the government of Great Britain.50
It was suggested by Mr. Frelinghuysen, as Secretary of State,
I that the claim be referred to the court of claims, but the British
> government declined to accept this suggestion unless the United
States should concede its liability. A re-examination having
' been requested, Mr. Bayard, among other grounds, held there was
i no merit in the claim, because "in countries subject to the Eng-
50 MS, Notes to Great Britain, XVIII, 461; 6 Moore's Int. L. D.
(563.
§ 577] CLAIMS AGAINST GOVERNMENTS. 564
lish common law, where there is an opportunity given of a prompt
trial by a jury of the vicinage, damages inflicted on foreigners
on the soil of such countries must be redressed through the in-
strumentalities of courts of justice, and are not subject to diplo-
matic intervention by the sovereign of the injured party. ' ' 51
§ 577. Discrimination against American citizens. — If an Ameri-
can citizen is more harshly treated, or more severely punished,
because he is a native-born citizen of the United States, "it would
be a clear case of the violation of treaty obligations, and would
demand the interposition of the government. ' ' 52
Mr. Bayard, who, as Secretary of State, declined to present a
claim of an American citizen for the murder of his father in
Mexico, expressed the principles of international law to be that:
"We can no more permit ourselves to seek redress for injuries
inflicted by private individuals in Mexico on one of our citizens
than we could permit Mexico to intervene to seek redress for in-
juries inflicted on Americans by private individuals in the United
States. The rule is that where the judiciary is recognized in a
country co-ordinate with the executive, having committed to it all
suits for redress of injuries inflicted on aliens as well as on citizens,
then the judiciary and not the executive must be appealed to for
redress. There are, it is true, two exceptions recognized to this
rule: First, when there is undue discrimination against the party
injured on account of his nationality; secondly, where the local
tribunals are appealed to, but justice was denied in violation of
those common principles of equity which are part of the law of
nations."53
51 Mr. Bayard to Mr. West, Brit- from Tangiers. The consul-general
ish Minister, June 1, 1885, For. Eel. of the United States informed the
1885, 450. A number of other simi- authorities of Morocco that he
lar instances can be found in 6 would hold them personally respon-
Moore's Int. L. D. 656-677. sible for the act of the bandit, and
52 Eeport by Mr. Webster, Secre- a squadron was ordered sent to Tan-
tary of State, to the President; 6 giers. On July 22, 1904, Mr. Hay,
Webster's Works, 530. Secretary of State, sent his famous
53 To Mr. Copeland, Feb. 23, 1886, dispatch to the American Consul-
159 MS. Dom. Let. 138. General that the United States
In 1904, the bandit Raisuli car- "wants Pericardis alive or Eaisuli
ried away an American citizen nam- dead. " Pericardis was released
ed Ion Pericardis, about three miles the 24th of June of that year, a
5
565
MONEY IN TRUST.
[§ 578
$ 578. Moneys received from foreign governments in trust for
American citizens. — In the act of Congress of February 26, 1896,
making appropriations for the diplomatic and consular service for
the fiscal year ending June 30, 1897, the following provision is
made for the disposition of trust funds : * ' Hereafter all moneys
received by the Secretary of State from foreign governments and
other sources, in trust for citizens of the United States or others,
shall be deposited and covered into the treasury. The Secretary
of State shall determine the amounts due claimants, respectively,
from each of such trust funds, and certify the same to the Secre-
on the 27th of June the squadron
departed from Tangiers. For. Rel.
1904, 496-504.
' ' Any person disturbing public
tranquillity, or violating the sov-
ereign rights of a nation, or its laws,
offends the state, declares himself its
enemy, and incurs just punishment.
His responsibility is not less when,
instead of attacking the state, the
crimes or offenses of which he has
been guilty menace personal safety
or the rights and property of in-
dividuals. In both cases, the gov-
ernment would fail to perform its
duty if it did not repress the injury
committed and cause the offender to
feel the weight of its penal legis-
lation. The state is not only under
obligations to secure the reign of
peace and justice among the differ-
ent members of the society whose
organ it is; it must also see, and
that most carefully, that all who
are under its authority offend
neither the government nor the citi-
zens of other countries. Nations are
obliged to respect one another, to
abstain from offending or injuring
each other in any way, and, in a
word, from doing anything that
can impair each other '« interests and
disturb the harmony which should
govern their relations. A state that
permits its immediate subjects or
citizens to offend a foreign nation
becomes a moral accomplice in their
offenses and renders itself person-
ally responsible.
' ' As regards its enforcement, this
principle has nothing absolute, and
admits of reservations inherent in
the very nature of things; for there
are private acts which the most vigi-
lant authority cannot prevent, and
which the wisest and most complete
legislation cannot always hinder, or
repress. All that other nations can
ask of a government is that it shall
show that it is influenced by a deep
sense of justice and impartiality,
and that it shall admonish its sub-
jects by all the means in its power
that it is their duty to respect their
international obligations, that it
shall not leave offenses into which
they may have been led unpunished;
and finally, that it shall act in all re-
spects in good faith and in accord-
ance with the precepts of natural
law; to go beyond this would be
raising a private injury to the mag-
nitude of a public offense, and would
be holding an entire nation responsi-
ble for a wrong done by one of its
members." Calvo. Int. Law, sec.
1271.
§ 579] CLAIMS AGAINST GOVERNMENTS. 566
tary of the Treasury, who shall, upon the presentation of the cer-
tificates of the Secretary of State, pay the amounts so found to
be due. Each of the trust funds covered into the treasury as
aforesaid is hereby appropriated for the payment to the ascer-
tained beneficiaries thereof of the certificates herein provided
for."54
§ 579. Payment of interest on claims. — In the absence of an
express statute, there is no obligation on the United States to pay
interest on claims against it. If, acting through the Secretary of
State, the government of the United States has unlawfully with-
held money paid under an agreement of arbitration between the
United States and a foreign country, a claim for such unlawful
withholding against the Secretary of State is a claim against the
government of the United States. Consequently, the government
of the United States is not liable for interest on the money so with-
held.55 "It has been established as a general rule in the prac-
tice of the government," said Mr. Justice Blatchford, "that in-
terest is not allowed on claims against it, whether such claims
originate in contract or in tort, and whether they arise in the
ordinary business of administration or under private acts of relief
passed by Congress on special application. The only recognized
exceptions are where the government stipulates to pay interest,
and where interest is given expressly by an act of Congress,
either by the name of interest or by that of damages. ' ' 56
Where it does not appear that the parties to a contract had some
particular place in view, their contracts, so far as their nature,
validity and interpretation are concerned, are to be controlled by
the law of the place in which they are made. North Carolina,
by the decisions of that state, where there is no statute on the
subject, is not liable for interest, and although bonds of that
state may be payable in New York, they do not bear interest
and are not subject to the law of New York as to the payment of
interest on such obligations.57 ' ' Interest, ' ' said Mr. Justice Gray,
54 29 U. S. Stats, at Large, 32. S. 251, 8 Sup. Ct. Eep. 1156, 32 L.
55 United States v. Bayard, 127 ed. 159.
U. S. 251, 8 Sup. Ct. Rep. 1156, 32 5T United States v. North Carolina,
L. ed. 159. 136 U. S. 216, 10 Sup. Ct. Eep. 922,
56 United States v. Bayard, 127 U. 34 L. ed. 336.
567 DEFAULT NOT ATTRIBUTED TO GOVERNMENT. [§ 580
"when not stipulated for by contract, or authorized by statute,
is allowed by the courts as damages for the detention of money
or of property, or of compensation, to which the plaintiff is en-
titled ; and, as has been settled on grounds of public convenience,
is not to be awarded against a sovereign government, unless its
consent to pay interest has been manifested by an act of its legis-
lature, or by a lawful contract of its executive officers. ' ' 58
Default not attributed to government. — Mr. Justice
Strong said that whenever interest is allowed, "either by statute
or by common law, except in cases where there has been a cpn
tract to pay interest, it is allowed for delay or default of the
debtor. But delay or default cannot be attributed to the govern-
ment. It is presumed to be always ready to pay what it owes. ' ' 59
Where internal revenue taxes have been paid without protest,
the allowance of interest has been denied.60 In New York, in-
terest was paid by the state to its canal fund for money borrowed
from it under an agreement by its officers to pay such interest.
This expense was incurred by the state in raising troops for the
national defense, to be repaid to the state by the United States.
The supreme court of the United States held that the interest was
an expense properly incurred as a part of the "costs, charges, and
expenses properly incurred" within the meaning of the act of
Congress to be reimbursed to the state by the government of
the United States. The decision was placed upon the ground that
the state could not legally borrow from the canal fund without
the payment of interest.61 By the statute creating the court of
claims, when the judgment appealed from is in favor of the
claimant, and the same is affirmed by the supreme court, interest
68 United States v. North Carolina, States v. Barber, 74 Fed. 484, 41
supra. IT. S. App. 424, 20 C. C. A. 616; Carr
39 United States v. Sherman, 98 v. State, 127 Ind. 218, 22 Am. St.
U. S. 565, 25 L. ed. 235. Eep. 624, 26 N. E. 783, 11 L. E. A.
80 Commissioners of Sinking Fund 375; Hawkins v. Mitchell, 34 Fla.
v. Buckner, 48 Fed. 542. See, also, 421, 16 South. 316; Seton v. Hoyt,
United States v. Barber, 74 Fed. 34 Or. 272, 75 Am. St. Eep. 643, 55
484, 20 C. C. A. 616, 41 U. S. App. Pac. 968, 43 L. E. A. 635.
424; Baxter v. United States, 51 61 United States v. State of New
Fed. 675, 2 C. C. A. 411; Walton v. York, 160 U. S. 619, 16 Sup. Ct. Eep.
United States, 61 Fed. 487; Bunton 410, 40 L. ed. 551.
v. United States, 62 Fed. 172; United
§§ 581, 582] CLAIMS AGAINST GOVERNMENTS. 568
is allowed on it at the rate of five per cent per year from the date
of its presentation to the Secretary of the Treasury for payment,
but no interest is allowed subsequent to the affirmance, unless it
is presented to the Secretary of the Treasury.62
§ 581. Questions involving title to real estate. — The descent,
alienation and transfer of land is controlled by the laws of the
state in which the land is situated, as likewise the construction
and effect of instruments by which its conveyance is affected.63
The rule may be said to be universal "that every question in-
volving title^ to real estate, whether by descent or purchase,
must be determined by the law of the country wherein such real
estate is situated, and all remedies for injuries in respect thereof
must be pursued by the aggrieved party before the duly consti-
tuted tribunals of such country. ' ' 64
Still, the United States held that a Mexican statute which dis-
criminated against its citizens and other aliens relative to the
capacity to hold real estate in Mexico, conflicted with the treaty,
then existing.65 But it is to be observed that trespasses and
evictions, when they may be characterized as a forcible depriva-
tion without recourse to law, may become the subjects of diplo-
matic intervention.66
§ 582. Claims arising on contracts. — As a general proposition,
the United States will not interfere, except by its good offices
in the prosecution of claims based on contracts made with foreign
governments.67 But there may be «ases where diplomacy is the
*a U. 8. Kev. Stats., sec. 1090. MS. Dom. Let. 78; Mr. Day, Secre-
61 Brene v. Insurance Co., 96 U. tary of State, to Mr. Buchanan, Min-
S. 627, 24 L. ed. 858. ister to Argentine Eepublic, No.
64 Mr. Marcy, Secretary of State, 362, May 31, 1898, MS. Inst. Arg.
to Mr. Selding, March 3, 1856, 45 Rep. XVII, 363; Mr. Day, Secretary
MS. Dom., Let. 123. of State, to Mr. Ketcham, July 28,
65 Mr. Evarts, Secretary of State, 1898, 230 MS. Dom. Let. 414; Mr.
to Mr. Foster, June 23, 1879, MS. Hay, Secretary of State, to Mr. Pow-
Inst. Mex. XXI. ell, Minister to Hayti, No. 338,
68 2 Wharton's Int. Law Dig. 667, April 12, 1899, MS. Inat. Hayti, IV,
note. 143; Mr. Hay, Secretary of State,
67 Mr. Olney, Secretary of State, to Messrs. E. Becker & Co., April 12,
to Mr. Meyer, Nov. 16, 1895, 206 1899, 236 MS. Dom. Let. 298.
569 THE COURT OF CLAIMS. [§ 583
only method by which redress can be obtained.08 It has been
frequently said that the government of the United States will in-
sist on a fair and impartial examination and adjudication without
discrimination as to nationality of a claim based on contract made
by a citizen of the United States against another government.
It is- not required by the United States that rights which its
citizens have forfeited should be maintained, but that they should
not be arbitrarily deprived of those rights without a fair exam-
ination by an impartial tribunal.69 It was claimed by an Ameri-
can citizen that the Russian government was using an invention
made by him in its fortifications and vessels, and he sought the
aid of the United States to obtain reimbursement from the gov-
ernment of Russia, but Mr. Fish, Secretary of State, held that
the matter was not one which could properly be presented through
diplomatic channels.70 Governments have also frequently made
reparation for false or irregular arrests,71 but if the proceedings
have been regular, indemnity is not demanded.72
§ 583. The court of claims. — The court of claims has juris-
diction of all claims founded upon any law of Congress, or upon
any regulation of an executive department, or upon any eon-
tract, expressed or implied, with the government of the United
States, and all claims that may be referred to it by either House
of Congress.78 But its jurisdiction, however, does not extend
to any claim against the government not pending therein, on
December 1, 1862, growing out of or dependent on any treaty
stipulation entered into with foreign nations or writh the Indian
tribes.74 A suit brought against the United States for the pur-
pose of recovering an unsatisfied part of a judgment rendered
in the Court of Commissioners of Alabama Claims, which the
Secretary of the Treasury illegally withheld from the party
entitled to it, is not a case growing out of and dependent on the
treaty between the United States and Great Britain. The court
of claims is not prohibited from taking jurisdiction of this claim,
because the claimants are seeking to recover upon the specific
68 Moore's Int. L. Dig. 717. T1 See 6 Moore's Int. L. Dig. 767.
69 6 Moore's Int. L. Dig. 724. 72 6 Moore's Int. L. Dig. 765.
70 To Mr. Meyers, M. C., Jan. 27, T3 Eev. Stats., sec. 1059.
1875, 106 MS. Dom. Let. 311. 74 Rev. Stats., sec. 1066.
§ 584] CLAIMS AGAINST GOVERNMENTS. 570
appropriation made by Congress and not upon any obligation
created by the treaty itself. While it might be said that a claim of
this nature in one sense is dependent upon the treaty, the depend-
ence is too remote to be affected by the statute, which contemplates
a direct connection between the treaty and the claim, to prevent the
court of claims from having jurisdiction of it.75 But if the peti-
tion bases the right to recovery on the provisions of the treaty it-
self, and no statute is invoked nor is it charged that the United
States is directly and primarily liable on the claim, the court has
no jurisdiction.76
As the jurisdiction of the court of claims is limited to claims
against the United States, it has no jurisdiction of a claim against
the District of Columbia which Congress referred to the court.77 A
state is competent to maintain a suit.78 A claim for unliquidated
damages on contract exists where the Secretary of War dispos-
sessed a lessee who had a valid lease before the expiration of his
term.79 The law of the state where the cause of action arose or
where the claim accrued is considered by the court in all cases
where questions arise affecting the validity of contracts, the title
to property, the distribution of estates, or the proper parties to
prosecute a case.80
§ 584. Jurisdictional requirements. — While it is a general
rule that the courts of one state will not lend assistance to the
officers of another to withdraw funds or property of a decedent,
without making provision for local creditors, this rule does not
require the treasurer of the United States, in paying the amount
due to a claimant against the United States, to prefer his creditors
residing in the District of Columbia over the receiver of personal
property of such claimant appointed by a court of chancery of the
75 United States v. Weld, 127 U. S. 7T Strachan v. District of Colum-
51, 8 Sup. Ct. Rep. 1000, 32 L. ed. bia, 20 Ct. of 01. 484.
62. 7S Louisiana v. United States, 22
76 Great Western Ins. Co. v. United Ct. of 01. 85.
States, 112 U. S. 193, 5 Sup. Ct. Eep. 79 Dunbar v. United States, 22 Ct.
99, 28 L. ed. 687; Ailing v. United of 01. 109.
States, 114 U. S. 562, 5 Sup. Ct. Eep. 80 Borcherling v. United States, 35
1080, 29 L. ed. 272. These cases are Ct. of 01. 312; United States v. Bor-
distinguished in United States v. cherling, 185 U. S. 223, 22 Sup. Ct.
Weld, 127 U. S. 51, 8 Sup. Ct. Eep. Eep. 607, 46 L. ed. 884.
1000, 32 L. ed. 62.
571
JURISDICTIONAL REQUIREMENTS.
[§ 584
state in which he lived and was served with process.81 This
court cannot establish a jurisdictional requirement, as Congress
alone has the power to do this.82 There is an implied contract
on the part of the United States to pay for land appropriated to a
public use, which is admitted to be private property.83 But there
is no implied contract to make compensation for the use and
occupation of the land of a private citizen where it is taken by
the United States under a claim that it is the property of the
government.84 Claims are barred within six years after they
accrue.85 Aliens may prosecute claims where their governments
grant reciprocity, the state declaring that aliens "who are citizens
or subjects of any government which accords to citizens of the
United States the right to prosecute claims against such govern-
ment in its courts shall have the privilege of prosecuting claims
against the United States in the court of claims, whereof such
81 United States v. Borcherling,
185. U. S. 223, 22 Sup. Ct. Kep. 607,
46 L. ed. 884.
82 Clyde v. United States, 13 Wall.
38, 20 L. ed. 479.
83 United States v. Great Falls
Mfg. Co., 112 U. S. 645, 5 Sup. Ct.
Eep. 306, 28 L. ed. 846; Great Falls
Mfg. Co. v. Attorney General, 124
U. S. 581, 8 Sup. Ct. Eep. 631, 31 L.
ed. 527; Merriam v. United States,
29 Ct. of Cl. 250; Morris y. United
States, 30 Ct. of Cl. 162; Dunning-
ton v. United States, 24 Ct. of Cl.
404.
84 Langford v. United States, 101
U. S. 341, 25 L. ed. 1010; Hill v.
United States, 149 U. S. 593, 13 Sup.
Ct. Rep. 1011, 37 L. ed. 862.
85 Eev. Stats., sec. 1069. An ac-
tion will lie to the court where an
officer, clothed with authority to in-
vestigate and allow, determines the
facts of the case and refers it to
the court for a determination of the
question presented, or where the of-
ficer has allowed the claim and
transmitted it to the accounting of-
ficers for payment, and they or the
Secretary of the Treasury refuse to
give effect to the award. Kauf-
man's Case, 11 Ct. of Cl. 659; af-
firmed 96 U. S. 567, 24 L. ed. 792;
Horton v. United States, 31 Ct. of
Cl. 48; Brigg's Case, 15 Ct. of Cl.
48; Stotesburg v. United States, 23
Ct. of Cl. 285; Greencastle 'a Bank
Case, 15- Ct. of Cl. 225; Nixon v.
United States, 18 Ct. of Cl. 448;
Sybrandt v. United States, 19 Ct.
of Cl. 461; Eeal Estate Sav. Bank's
Case, 16 Ct. of Cl. 335; affirmed
104 U. S. 728, 26 L. ed. 908; Dupas-
seur v. United States, 19 Ct. of Cl.
1; Eamsay v. United States, 21 Ct.
of Cl. 443. This court has no juris-
diction where the claim presented
is for a wrongful diversion of a
watercourse. Mills v. United States,
46 Fed. 738, 12 L. E. A. 673. The
court has no jurisdiction of a claim
for the infringement of a patent.
Pitcher's Case, 1 Ct. of Cl. 7;
Schillinger v. United States, 155 U.
S. 163, 15 Sup. Ct. Eep. 85, 39 L.
ed. 108.
§§ 585, 586] CLAIMS AGAINST GOVERNMENTS. 572
court, by reason of their subject matter and character, might take
jurisdiction. ' ' 86
§ 585. The Bowman Act. — In 1883 Congress passed an act
commonly known as "The Bowman Act," which provides "that
whenever a claim or matter is pending before any committee of
the Senate or House of Representatives, or before either House
of Congress, which involves the investigation and determination
of facts, the committee or House may cause the same, with the
vouchers, papers, proofs, and documents pertaining thereto, to be
transmitted to the court of claims of the United States, and the
same shall there be proceeded in under such rules as the court-
may adopt. When the facts shall have been found, the court
shall not enter judgment thereon, but shall report the same to the
committee or to the House by which the case was transmitted
for its consideration." Another section provides: "That when a
claim or matter is pending in any of the executive departments
which may involve controverted questions of fact or law, the
head of such department may transmit the same, with the vouch-
ers, papers, proofs, and documents pertaining thereto, to said
court, and the same shall be proceeded in under such rules as the
court may adopt. When the facts and conclusions of law shall
have been found, the court shall not enter judgment thereon, but
shall report its findings and opinions to the department by which
it was transmitted for its guidance and action."87
§ 586. Liberal construction of act. — This act is liberally con-
strued, because it is a remedial act by which it is intended to
relieve Congress and afford redress to the claimant.88 Letters
and ex parte statements are excluded.89 There is, however, no
jurisdiction in the court to determine a diplomatic claim pre-
sented by a foreign government to the Secretary of State, al-
though it has been transmitted by him to the court.90 The court
does not enforce the strict rules of pleading, but pays attention
to the substance ; and the case will not be dismissed, if by reasoi
86 Eev. Stats., sec. 1068. 89 West Virginia v. United State
87 22 U. S. Stats, at Large, 485. 37 Ct. of Cl. 205.
88 Duplantier v. United States, 27 "° Berger v. United States, 36 Ct
Ct. of Cl. 323. of 01. 243.
573 THE TUCKER ACT. [§ 587
able intendment the purpose of Congress can be subserved by the
finding of the court. On the contrary, the court will examine
and report according to the requirements of the statute.91 The
act does not provide for an appeal to the supreme court, as no
judgment is entered under its provisions.02 The petition of claim-
ant must set up substantially the same cause of action as that
transmitted to the court, as the jurisdiction of a claim stated
in a bill is confined to the claim which the bill describes.93
§ 587. The Tucker Act.— In 1887 an act was passed by Con-
gress, commonly known as the Tucker Act, which was intended as
an enlargement of the jurisdiction of the court of claims. It
provided that this court should have jurisdiction to hear and
determine ' ' all claims founded upon the constitution of the United
States, or any law of Congress, except for pensions, or upon any
regulation of an executive department, or upon any contract,
express or implied, with the government of the United States, or
for damages, liquidated or unliquidated, in cases not sounding in
tort, in respect of which claims the party would be entitled to
redress against the United States either in a court of law, equity,
or admiralty, if the United States were suable. ' ' 94 Under the
provisions of this act the court of claims has power to reform a
contract so as to carry into effect the intention of the parties.95
The act, being remedial in its character, should receive a liberal
construction.90 A claimant cannot overcome the provision of the
I act, denying jurisdiction in cases sounding in tort, by waiving
! the tort, and suing as if on a contract, even where the common
law would permit him to do so.97
91 Gofer v. United States, 30 Ct. claims,' or to hear and determine
of Cl. 131. other claims, which have heretofore
92 Webb v. United States, 20 Ct. been rejected, or reported on ad-
' of Cl. 496. versely by a court, department, or
93 Choctaw Nation v. United commission authorized to hear and
States, 19 Ct. of Cl. 250. determine the same."
94 24 U. S. Stats, at Large, 505. 95 South Boston Iron Works v.
It is provided that nothing "shall United States, 34 Ct. of Cl. 174.
be construed as giving to either of flfi Southern Pac. K. Co. v. United
the courts herein mentioned juris- States, 38 Fed. 55.
; diction to hear and determine claims 9T Me Arthur v. United States, 29
growing out of the late Civil War, Ct. of Cl. 194.
and commonlv known as 'war
5 5881 CLAIMS AGAINST GOVERNMENTS. 574
The word? "claims founded upon the Constitution of the United
States," confer jurisdiction of as comprehensive and untram-
meled character, as the legislative power could well make.08 It
is not necessary, under this act, to make a demand on an execu-
tive department before commencing suit." If a petition is filed
tor equitable relief, it should be reasonably definite and certain
in its statements of facts.100 A claim does not sound in tort, where
an agent who has authority to contract for the government inter-
feres in an improper manner with the completion of a contract
made with such agent. The contractor in such a case is, under
this act, entitled to recover.101
§ 588. Concurrent jurisdiction of district and circuit courts.—
The "Tucker Act" provides that "the district courts of the
United States shall have concurrent jurisdiction with the court of
claims, as to all matters named in the preceding section, where the
amount of the claim does not exceed one thousand dollars, and
the circuit courts of the United States shall have such concurrent
jurisdiction in all cases where the amount of such claim exceeds
one thousand dollars and does not exceed ten thousand dollars.
All cases brought and tried under the provisions of this act shall
be tried without a jury. ' ' 102 By an amendment made on June 27,
1898, it is provided that the jurisdiction conferred upon the dis-
trict and circuit courts "shall not extend to cases brought to
recover fees, salary or compensation for official services of officers
•if the United States, or brought for such purpose by persons
98 Stovall v. United States, 26 Ct. Cl. 243; Bryan v. United States,
of Ci. 240. 21 Ct. of Cl. 249; United States v.
89 Kendall's Case, 14 Ct. of Cl. Fitch, 70 Fed. 578, 17 C. C. A. 233;
122; affirmed 107 U. S. 123, 2 Sup. United States v. Ewing, 140 U. S.
Ct. Eep. 277, 27 L. ed. 437; Car- 142, 11 Sup. Ct. Kep. 743, 35 L. ed.
lisle v. United States, 29 Ct. of Cl. 388; United States v. Fletcher, 47
414; Battelle's Case, 7 Ct. of Cl. U. S. 664, 13 Sup. Ct. Eep. 434, 37
297; Cotton v. United States, 29 L. ed. 322.
Ct. of Cl. 207; Spann v. United 10° Schierling v. United States, 2
States, 21 Ct. of Cl. 267; Bulkley's Ct. of Cl. 361.
Case, 8 Ct. of Cl. 519; Leonard v. 101 Bowe v. United States, 42 Fee
United States, 18 Ct. of Cl. 382; 761.
United States v. Knox, 128 U. S. 230, 102 24 U. S. Stats, at Large, 505
9 Sup. Ct. Eep. 63, 32 L. ed. 465; sec. 2.
Eavesies v. United States, 21 Ct. of
575 PROCEDURE UNDER THIS ACT. [§ 589
claiming as such officers or as assignees or legal representatives
thereof."103 Letter carriers in the postal service are within the
meaning of this amendment. "Letter carriers are appointed by
the postmaster-general under authority of the acts of Congress,
practically during good behavior. They are sworn and give bond
for the faithful performance of their duties. They are paid from
moneys appropriated for the purpose by Congress, and their sal-
aries are fixed by law. They have regularly prescribed services
to perform, and their duties are continuing and permanent, not
occasional or temporary. ' ' 104 The constitution of the United
States is not violated by the provision for trial by the court with-
out a jury.105
§ 589. Procedure under this act. — In proceeding under this act
the plaintiff is required to file a petition, "duly verified, with
the clerk of the respective court having jurisdiction of the case,
and in the district where the plaintiff resides. Such petition
shall set forth the full name and residence of the plaintiff, the
nature of his claim, and a succinct statement of the facts upon
which the claim is based, the money or any other thing claimed,
or the damages sought to be recovered, and praying the court
for a judgment or decree upon the facts and law. ' ' 106 The plain-
tiff is required to serve a copy of his petition upon the district
s attorney of the United States, in the district in which suit is
brought, and to mail a copy by registered letter to the attorney
(general of the United States, and to cause to be filed with the
; clerk of the court in w^hich the suit is instituted an affidavit of
such service and of the mailing of such letter. It is made the duty
of the district attorney upon whom service is made to appear
and defend the interests of the government, and within sixty
days after the service, unless the time should be extended by order
of the court, to file a plea, answer, or demurrer, on the part of the
government, and to file a notice of any counterclaim, setoff, claim
for damages, or other demand, or defense of the government. If
the district attorney should fail so to act, the plaintiff may pro-
103 30 U. S. Stats, at Large, 495. U. S. 426, 26 L. ed. 189; United
104 United States v. McCrory, 91 States v. Saunders, 79 Fed. 407, 24
Fed. 295, 33 C. C. A. 515. C. C. A. 649.
105 McElrath v. United States, 102 10° 24 U. S. Stats, at Large, 506.
§ 590] CLAIMS AGAINST GOVERNMENTS. 576
ceed with the case under such rules as may be adopted by the
court, but the plaintiff is not permitted to have judgment for his
claim or any part of it, unless he shall establish the same by satis-
factory proof.107 The form of the petition is immaterial, and a
demurrer to it should not be sustained if facts are set forth from
which a contract may be implied, or if it states lawful and author-
ized acts of the government, not amounting to torts of its agents,
upon Vhich there may be sustained an obligation to pay dam-
ages.108
§ 590. Judgments and appeals. — It is the duty of the court to
cause a written opinion to be filed, setting forth its specific find-
ings of facts and conclusions of law, and to render judgment
accordingly. "If the suit be in equity or admiralty, the court
shall proceed with the same according to the rules of such
courts. ' ' 109 The findings of facts are equivalent to the verdict
of a jury.110 If the facts are not in dispute, and if it appear from
the pleadings, exhibits and opinion that the judgment of the court
is justified, separate findings of facts and conclusions of law are
not indispensable.111 A judgment against the United States will
be reversed if the findings are obscure and incomplete.112 No
person is excluded as a witness because he is a party or interested,
and either party to the suit has the same rights of appeal or
writ of error as are reserved in the statutes of the United States,
and upon the same conditions and limitations. The mode of pro-
cedure in claiming and perfecting an appeal or writ of error is
required to conform in all respects, as near as may be, to the
statutes and rules of court governing appeals and writs of error
in like cases.113 Where the record or the opinion of the lower
court shows that the judgment was rendered for the purpose of
submitting the question on appeal, and against .the convictions
of the court, a pro forma judgment rendered against the United
10T 24 U. S. Stats, at Large, 506. m United States v. Tinsley, 68
108 Chappel v. United States, 34 Fed. 433, 15 C. C. A. 507.
Fed. 673. 112 United States v. Kelly, 89 Fed.
109 24 U. S. Stats, at Large, 506. 946, 32 C. C. A. 441.
110 Stone v. United States, 164 U. m 24 U. S. Stats, at Large, 506,
S. 380, 17 Sup. Ct. Rep. 71, 41 L. 507.
577
JUDGMENTS AND APPEALS.
[§ 590
States by the court of claims will be reversed.114 The inquiry is
limited to the question whether the judgment is supported by
specific findings required by the act.115
114 United States v. Gleeson, 124
U. S. 255, 8 Sup. Ct. Kep. 502, 31 L.
ed. 421. See as to appeals, United '
States v. Davis, 131 U. S. 39, 9 Sup.
Ct. Eep. 657, 33 L. ed. 93; United
States v. Yukers, 60 Fed. 641, 9 C. C.
A. 171 ; United States v. Davis, 131 U.
S. 36, 9 Sup. Ct. Kep. 657, 33 L.
Treaties — 37
ed. 93; United States v. Harsha,
172 U. S. 567, 19 Sup. Ct. Eep. 294,
43 L. ed. 556; Chase v. United
States, 155 U. S. 489, 15 Sup. Ct.
Eep. 174, 39 L. ed. 234.
115 Chase v. United States, '155 U.
S. 500, 15 Sup. Ct. Eep. 174, 39 L.
ed. 234.
APPENDIX I.
EXTRADITION.
The following regulations have been adopted by the Department
of State concerning the extradition of fugitives from justice :
MEMORANDUM RELATIVE TO THE EXTRADITION OF
FUGITIVES FROM THE UNITED STATES IN BRITISH
JURISDICTION.
Department of State,
Washington, May, 1890.
Where application is made for a requisition for the surrender
of a fugitive from the justice of the United States in British juris-
diction, it must be made to appear —
1. That one of the offenses enumerated in the treaties between the
United States and Great Britain has been committed within the
jurisdiction of the United States or of some one of the States or
Territories.
2. That the person charged with the offense has sought an asylum
or been found within the British dominions.
All applications for requisitions should be addressed to the Sec-
retary of State, and forwarded to the Department of State, accom-
panied with the necessary papers, as herein stated, and must
furnish the full name of the person proposed for designation by
the President to receive the prisoner and convey him to the United
States. When the offense is within the jurisdiction of the State
courts, the application must come from the governor of the State.
When the offense is against the United States, the application must
come from the Attorney-General or the prop'er executive depart-
ment.
It is stipulated in the treaties with Great Britain that extra-
dition shall be granted only on such evidence of criminality as,
according to the laws of the place where the fugitive or person
charged shall be found, would justify his apprehension and com-
litment for trial if the crime or offense had there been committed.
(579)
580 APPENDIX I.
It is admissible as constituting such evidence to produce a prop-
erly certified copy of an indictment found against the fugitive by
a grand jury or of any information made before an examining
magistrate, accompanied by one or more depositions setting forth
as fully as possible the circumstances of the crime. An indictment
alone has been held to be insufficient.
By the fourteenth section of the English extradition act of 1870,
" depositions or statements on oath, taken in a foreign state, and
copies of such original depositions or statements, and foreign cer-
tiflcates of, or judicial documents stating the fact of conviction,
may, if duly authenticated, be received in evidence of proceedings
under this act. ' '
The fifteenth section of the same act provides as follows : 1 1 For-
eign warrants and depositions or statements on oath, and copies
thereof, and certificates of, or judicial documents stating the fact
of a conviction, shall be deemed duly authenticated for the pur-
poses of this act if authenticated in manner provided for the time
being by law, or authenticated as follows: (1) If the warrant pur-
ports to be signed by a judge, magistrate, or officer of the foreign
state where the same was issued; (2) if the depositions or state-
ments or the copies thereof purport to be certified under the hand
of a judge, magistrate, or officer of the foreign state where the
same were taken to be the original depositions or statements, or to
be true copies thereof, as the case may require; and (3) if the
certificate of, or judicial documents stating the fact of conviction
purport to be certified by a judge, magistrate, or officer of the
foreign state where the conviction took place; and if in every
case the warrants, depositions, statements, copies, certificates, and
judicial documents (as the case may be) are authenticated by the
oath of some witness or by being sealed with the official seal of
the minister of justice, or some other minister of state; and all
courts of justice, justices and magistrates, shall take judicial notice
of such official seal, and shall admit the documents so authenti-
cated by it to be received in evidence without further proof. ' '
If the fugitive be charged with the violation of a law of a State
or Territory, his delivery will be required to be made to the au-
thorities of such State or Territory.
If the offense charged be a violation of a law of the United
States (such as piracy, murder on board of vessels of the United
APPENDIX I. 581
States, or in arsenals or dockyards, etc.), the delivery will be re-
quired to be made to the officers or authorities of the United States.
Where the requisition is made for an offense against the laws
of a State or Territory, the expenses attending the apprehension
«Miid delivery of the fugitive must be borne by such State or Ter-
ritory. Expenses of extradition are defrayed by the United States
only where the offense is against its own laws.
PROVISIONAL ARREST.
Applications, both by telegraph and by letter, are frequently
made to this Department for its intervention to obtain the arrest
and provisional detention of fugitives from justice in England,
Scotland, or Ireland in advance of the presentation of the formal
proofs upon which a demand for their extradition may be based.
In such cases the only manner in which the Department can inter-
vene is by informing the ambassador of the United States in
London of the facts and instructing him to take the necessary
measures. This the ambassador does by authorizing some one
connected with the embassy to make complaint on oath before a
magistrate, in accordance with the requirements of the British
extradition act of 1870. The form of this complaint is hereto
annexed as appendix 2. Attention is invited to its provisions,
and especially to the statement deponent is required to make that
he is informed and believes that a warrant has been issued in the
foreign country for the arrest of the accused. This Department,
when requested to intervene in such a case, should always be en-
abled to inform the ambassador that such a warrant has been is-
sued, in order that the complaint before the British magistrate
may be made in due form and without delay.
APPENDIX 1.
The tenth article of the treaty between the United States and
Great Britain, concluded August 9, 1842, provides for the sur-
render of criminals for (1) murder, (2) assault with intent to
commit murder, (3) piracy, (4) arson, (5) robbery, (6) forgery,
(7) the utterance of forged paper.
The convention concluded July 29, 1889, provides for extra-
dition for the following additional offenses:
1. Manslaughter, when voluntary.
582 APPENDIX I.
2. Counterfeiting or altering money; uttering or bringing into
circulation counterfeit or altered money.
3. Embezzlement ; larceny ; receiving any money, valuable secur-
ity, or other property, knowing the same to have been embezzled,
stolen, or fraudulently obtained.
4. Fraud by a bailee, banker, agent, factor, trustee, or director
or member or officer of any company, made criminal by the laws of
both countries.
5. Perjury, or subornation of perjury.
6. Rape; abduction; child-stealing; kidnapping.
7. Burglary; house-breaking or shop-breaking.
8. Piracy by the law of nations.
9. Eevolt or conspiracy to revolt by two or more persons on
board a ship on the high seas, against the authority of the master ;
wrongfully sinking or destroying a vessel at sea, or attempting
to do so; assaults on board a ship on the high seas, with intent
to do grievous bodily harm.
10. Crimes and offenses against the laws of both countries for
the suppression of slavery and slave-trading.
Extradition is also to take place for participation in any of the
crimes mentioned in this convention or in the aforesaid tenth
article, provided such participation be punishable by the laws of
both countries.
By the seventh article of the convention of 1889, it is stipulated
as follows:
"The provisions of the said tenth article (of the treaty of 1842)
and of this convention shall apply to persons convicted of the crimes
therein respectively named and specified whose sentence therefor
shall not have been executed."
The eighth article of the convention of 1889 is as follows : ' ' The
present convention shall not apply to any of the crimes herein
specified which shall have been committed, or to any conviction
which shall have been pronounced, prior to the date at which the
convention shall come into force."
The ninth article provides that the convention "shall come into
force ten days after its publication, in conformity with the forms
prescribed by the laws of the high contracting parties. ' ' The con-
vention was proclaimed both in the United States and in Great
Britain March 25, 1890, and thus came into force in both coun-
tries April 4, 1890,
APPENDIX I. 583
APPENDIX 2.
(Form of information used in obtaining provisional warrants of
arrest in the United Kingdom of Great Britain and Ireland.)
Metropolitan Police District, to wit.
The information of - — , of - — , taken on oath
this - - day of - — , in the year of our Lord one thousand
eight hundred and - — , at the Bow Street Police Court, in the
county of Middlesex, and within the Metropolitan police district,
before me, the undersigned, one of the magistrates of the police
courts of the metropolis, sitting at the police court aforesaid, who
saith that — — , late of - — , is accused [or convicted]
of the commission of the crime of - — , within the jurisdic-
tion of - — , and now suspected of being in the United
Kingdom. I make this application on behalf of the -
Government.
I produce - — .
I am informed and verily believe that a warrant - has
been issued in - - for the arrest of the accused; that the
said Government will demand h — extradition in due course, and
that there are reasonable grounds for supposing the accused may
escape during the time necessary to present the diplomatic requisi-
tion for h — surrender, and I therefore pray that a provisional
warrant may issue under the provisions of 33 and 34 V., c. 52, s. 8.
Sworn before me, the day and year first above mentioned, at the
police court aforesaid.
CERTIFICATE.
I, - — , Governor of - — , do hereby certify that
the accompanying application presented by me on behalf of the
— of - — , for the extradition of - — , from
— , is made solely for the purpose of securing his trial
and punishment for the offense of - — , and not in order
to enforce the collection of a debt, or to avoid the penalty of a
bail bond, or for any private purpose whatever, and that if the
application be granted the criminal proceedings shall not be used
for any of said purposes.
Governor of
584 APPENDIX I.
PROVISIONAL DETENTION OF FUGITIVES FROM JUS-
TICE IN GREAT BRITAIN.
Department of State,
Washington, D. C., March 17, 1891.
The minister of the United States in London informs the De-
partment that inquiries are frequently made at the legation by
officers of the London police who have received telegrams from
police authorities or detective agencies in the United States asking
for the arrest and detention of alleged fugitives from justice.
In Great Britain a provisional warrant of arrest of a fugitive
from justice may be obtained from a judicial magistrate, but it is
required that the application for the warrant shall have the sanc-
tion of the foreign government. When, therefore, the London
police receive such a telegram as has been described, they at once
apply to the minister of the United States to ascertain whether he
will authorize proceedings before a magistrate to be taken.
Ministers of the United States are hot authorized to request or
to sanction requests for the arrest of fugitives from justice with-
out the instructions of this Department. When, therefore, the
minister of the United States in London is asked to sanction a com-
plaint before a magistrate, based upon a request made by police
authorities or detective agencies in this country, he is obliged to
refuse.
The proper course in such a case is for the authorities of the
particular district in which the offense was committed to apply to
the governor of the State in which such district is situated, through
whom the application for the intervention of the United States or
of its representatives must come. The only exception to this rule
is the city and county of New York, the prosecuting attorney of
which is permitted to apply for provisional detention directly to
this Department, although the formal application for a requisition
for surrender must come through the governor of the State.
In applying to this Department to secure the provisional deten-
tion of a fugitive in Great Britain, the charge of crime must be
briefly and clearly stated, and, unless there is some witness in
Great Britain to identify the fugitive, a description of him should
be furnished either to this Department or to the London police. A
positive assurance must also be given to this Department that a
APPENDIX I. 585
warrant has been issued for his arrest at the place where the crime
was committed. This is a necessary allegation under the British
statute.
MEMORANDUM RELATIVE TO APPLICATIONS FOR THE
EXTRADITION FROM FOREIGN COUNTRIES OF FUGI-
TIVES FROM JUSTICE.
Department of State,
Washington, October, 1892.
Extradition will be asked only from a government with which
the United States has an extradition treaty, and only for an offense
specified in the treaty.
All applications for requisitions should be addressed to the Sec-
retary of State, accompanied by the necessary papers as herein
stated.* When extradition is sought for an offense within the
jurisdiction of the State or Territorial courts, the application must
come from the governor of the State or Territory. When the
offense is against the United States, the application should come
from the Attorney-General.
In every application for a requisition it must be made to appear
that' one of the offenses enumerated in the extradition treaty be-
tween the United States and the government from which extradi-
tion is sought has been committed within the jurisdiction of the
United States, or of some one of the States or Territories, and that
the person charged therewith is believed to have sought an asylum
or has been found within the dominions of such foreign govern-
ment.
The extradition treaties of the United States ordinarily provide
that the surrender of a fugitive shall be granted only upon such
evidence of criminality as, according to the laws of the place where
the fugitive or person so charged shall be found, would justify his
or her commitment for trial if the crime or offense had been there
committed.
If the person whose extradition is desired has been convicted of
a crime or offense and escaped thereafter, a duly authenticated
*The only exception is found in the treaty with Mexico, under which, in
the case of crimes committed in the frontier States or Territories, requi-
sitions may be made directly by the proper authorities of the State or
Territory. (Article 2, treaty with Mexico, concluded December 11, 1861.)
586 APPENDIX I.
copy of the record of conviction and sentence of the court is or-
dinarily sufficient.
If the fugitive has not been convicted, but is merely charged
with crime, a duly authenticated copy of the indictment or informa-
tion, if any, and of the warrant of arrest and return thereto,
accompanied by a copy of the evidence upon which the indictment
was found, or the warrant of arrest issued, or by original deposi-
tions setting forth as fully as possible the circumstances of the
crime, are usually necessary. Many of our treaties require the
production of a duly authenticated copy of the warrant of arrest
in this country; but an indictment, information, or warrant of
arrest alone, without the accompanying proofs, is not ordinarily
sufficient. It is desirable to make out as strong a case as possible,
in order to meet the contingencies of the local requirements at the
place of arrest.
If the extradition of the fugitive is sought for several offenses,
copies of the several convictions, indictments, or informations and
of the documents in support of each should be furnished.
Application for the extradition of a fugitive should state his full
name, if known, and his alias, if any, the offense or offenses in the
language of the treaty upon which his extradition is desired, and
the full name of the person proposed for designation by the Presi-
dent to receive and convey the prisoner to the United States.
As the application proper is desired solely by the Department as
a basis for its action, and is retained by it, it is not necessary that
it should be attached to the evidence.
Copies of the record of conviction, or of the indictment, or in-
formation, and of the warrant of arrest, and the other papers and
documents going to make up the evidence are required by the De-
partment, in the first instance, as a basis for requesting the sur-
render of the fugitive, but chiefly in order that they may be duly
authenticated under the seal of the Department, so as to make them
receivable as evidence where the fugitive is arrested upon the
question of his surrender.
Copies of all papers going to make up the evidence, transmitted
as herein required, including the record of conviction, or the in-
dictment, or information, and the * warrant of arrest, must be
duly certified and then authenticated under the great seal of the
State making the application or the seal of the Department of
Justice, as the case may be ; and this Department will authenticate
APPENDIX I. 587
the seal of the State or of the Department of Justice. For ex-
ample, if a deposition is made before a justice of the peace, the
official character of the justice and his authority to administer
oaths should be attested by the county clerk or other superior cer-
tifying officer ; the certificate of the county clerk should be authen-
ticated by the governor or secretary of state under the seal of the
State, and the latter will be authenticated by this Department. If
there is but one authentication, it should plainly cover all the
papers attached.
All of the papers herein required in the way of evidence must
l)e transmitted in duplicate, one copy to be retained in the files of
the Department, and the other, duly authenticated by the Secre-
tary of State, will be returned with the President 's warrant, for the
use of the agent who may be designated to receive the fugitive. As
the governor of the State, or the Department of Justice, also or-
dinarily requires a copy, prosecuting attorneys should have all
papers made in triplicate.
By the practice of some of the countries with which the United
States has treaties, in order to entitle copies of depositions to be
received in evidence the party producing them is required to de-
clare under oath that they are true copies of the original deposi-
tions. It is desirable, therefore, that such agent, either from a
comparison of the copies with the originals or from having been
present at the attestations of the copies, should be prepared to
make such declaration. When the original depositions are for-
warded, such declaration is not required.
Applications by telegraph or letter are frequently made to this
Department for its intervention to obtain the provisional arrest
and detention of fugitives in foreign countries in advance of the
presentation of the formal proofs upon which a demand for their
extradition may be based. Such applications should state specifi-
cally the name of the fugitive, the offense with which he is charged,
the circumstances of the crime as fully as possible, and a descrip-
tion and identification of the accused. It is always helpful to
show that an indictment has been found or a warrant of arrest
has been issued for the apprehension of the accused. In Great
Britain the practice makes it essential that it shall appear that a
warrant of arrest has been issued in this country.*
*For fuller information with respect to procedure in cases of provisional
arrest within British jurisdiction, see Department's memorandum of May,
1890.
588 APPENDIX I.
Care should be taken to observe the provisions of the particular
treaty under which extradition is sought, and to comply with any
special provisions contained therein. The extradition treaties of
the United States may be found in the several volumes of the Stat-
utes at Large, in the "Revised Statutes of the United States relat-
ing to the District of Columbia and Post Roads, together with
Public Treaties in force on the 1st day of December, 1873," and
in the volume of Public Treaties, 1887. Copies of particular
treaties will be furnished by the Department upon application.
If the offense charged be a violation of a law of a State or Ter-
ritory, the agent authorized by the President to receive the fugitive
will be required to deliver him to the authorities of such State or
Territory. If the offense charged be a violation of a law of the
United States, the agent will be required to deliver the fugitive
to the proper authorities of the United States for the judicial
district having jurisdiction of the offense.
Where the requisition is made for an offense against the laws
of a State or Territory, the expenses attending the apprehension
and delivery of the fugitive must be borne by such State or Ter-
ritory. Expenses of extradition are defrayed by the United States
only when the offense is against its own laws.
A strict compliance with these requirements may save much
delay and expense to the party seeking the extradition of a fugitive
criminal.
Department of State,
Washington, March 26, 1900.
His Excellency
The Governor of ,
Sir: The extradition from Mexico of fugitives from the justice
of the United States has been the subject of more or less mis-
understanding between the two Governments ; and the recent fail-
ure of the Mexican Government to surrender, at the request of the
governor of Texas, Leonardo Gonzales, accused of murder in that
State, gave occasion for the careful study and consideration of the
question between the Mexican Ambassador and the Department of
State.
It appears that the failure to grant the extradition requested
in some cases — and especially in the Gonzales case — was due, not
to any motive of the Mexican Government to refuse the request on
AI'J'KNDIX I.
the ground of the Mexican citi/enship of the accused, but beeausc
1li«- demanding authorities h;id not sufficiently complied with 06C
tioh 1 of Article III of the treaty.
The proceedings in the Gonzales case may be taken as illustrative
of alleged defects in the observance of necessary formalities, and
for that reason a memorandum of the case is enclosed herewith,
marked A.
With a view to arriving at a more distinct understanding of the
requirements and formalities which, under the treaty, are required
of the United States authorities in such cases, and the observance
of which will facilitate the extradition of accused persons, the
Department addressed a note, under date of January 12 ultimo,
to the Mexican Ambassador (copy enclosed, marked B), inviting a
nference on the subject.
t the conference the Ambassador explained the laws of the
exican Republic bearing on the question, and stated that the laws
of its several States are substantially the same as those of the
:ican Federal Government. He afterwards furnished the De-
partment a memorandum of the conference (copy enclosed, marked
f, and also a copy in Spanish and English of the said provisions
the Mexican code (copy enclosed, marked D). The observance
the precepts of the said laws on the part of the demanding
authorities will, it is believed, lead to satisfactory results in the
future.
It may be further observed that within the experience of the
Department, the corresponding requirements of our laws on the
Mexican Government in such cases have been by it scrupulously
pursued in those cases where extradition has been sought by it
through the diplomatic channels.
I also enclose printed leaflet copy of the extradition treaty in
force between the two Governments.
I have the honor to be, Sir,
Your obedient servant,
JOHN HAY.
closures :
Memorandum on Gonzales case.
To Mexican Ambassador, No. 64, January 12, 1900.
Conference with Mexican Ambassador.
Copy of certain articles of Mexican code.
Extradition treaty between the United States and Mexico.
590 APPENDIX I.
Memorandum on the Gonzales case.
It appears from Mr. Clayton's Despatch No. 415, November 22
ultimo, and in Governor Sayers ' letter of November 28 ultimo, with
their enclosures, that the request for the extradition of Leonardo
Gonzales was based upon the affidavit charging him with the crime
of murder of Prisciliana Laura, and upon a deposition of H. C,
Crosby. It appears that extradition was refused by the Mexican
Government on the ground that the demand was founded upon the
warrant issued by the clerk of Pecos County and on said dep-
osition, and that there was no evidence submitted to show legally
the existence of the corpus delicti of homicide; that no evidence
of the dead body was given by competent authority, nor that an
authoritative examination was made of the wounds inflicted upon
Prisciliana Laura, nor that an autopsy was held upon the dead
body to prove the cause of death, indispensable requisites for the
imposition of punishment according to articles 544, 545, and 546
of the Mexican penal code; and that the deposition of said Crosby
failed to state expressly the place or town of Pecos County where
the homicide was committed, and was wanting in other circum-
stances to raise the presumption of guilt against Gonzales. A fur-
ther ground of refusal was the want of sufficient authentication of
the extradition proceedings had in Texas as required by Article
VIII and IX of the treaty and because the Mexican authorities
were not competent to take jurisdiction of the case for lack of
certain requisites enumerated in article 186 of the penal code in
force in Coahuila and in the Federal District; that under the
treaty, extradition cannot be granted where the proof of crime
presented by the requesting party would not justify the apprehen-
sion and the putting on trial of the accused if the crime had been
there committed.
B
The Secretary of State to the Mexican Ambassador.
No. 64.] Department of State,
Washington, January 12, 1900.
Excellency: Referring to your memorandum in relation to the
provisional detention in the United States, under the extradition
APPENDIX I.
591
treaty, of fugitives from justice from Mexico, I should be pleased
if you would call at the Department at your convenience, in order
that we may confer upon the subject.
I should be glad to consider with you at the same time the ques-
tion of the surrender, under Article IV of the treaty, of the citizens
of the country from which the surrender is requested for crimes
committed in the other. The President of the United States, in
the exercise of his discretion, recently permitted the extradition of
Mrs. Mattie Rich, a citizen of the United States, at the request of
Mexico ; while, on the other hand, President Diaz recently refused
to permit the surrender of Leonardo Gonzales. Inasmuch as the
request was made in this case by the governor of Texas on the
governor of Coahuila, the papers and evidence in the case did not
pass through the Department of State, and it refrains from ex-
pressing any opinion on the question whether there was, as de-
cided by the Mexican Government, an entire want of proof of the
corpus delicti, without which extradition would properly be refused
in any case. But there was apparently another ground of the de-
cision of the Mexican Government which, if correctly understood
by the Department and rigidly adhered to in the future, would
endanger the successful operation of this clause of the treaty. It
seems to be implied in said decision that it is, under the laws of
Mexico, an indispensable prerequisite to the arrest and commitment
for trial of anyone accused of murder that there be technical proof
of the crime by a coroner's inquest and by an autopsy, so that
the fact of death must be established by evidence of officials charged
with the duty of holding such inquest and the cause of it estab-
lished by scientific evidence of physicians holding the autopsy.
Under the laws of the United States the fact of death, as well as
the cause of it, must be proved in order to warant conviction; but
no particular form of proof is necessary for the purpose of arrest
and commitment for trial, it being necessary only to show prima
facie or probable cause. Nor are those formal and technical proofs
indispensable to conviction. It not unfrequently happens, in cases
of murder, that the guilt of the accused can only be shown by
circumstantial evidence, and no particular species of evidence is
formally prescribed as indispensable to conviction. There is only
one indispensable prerequisite, namely, the evidence must show the
crime and the guilt of the accused beyond reasonable doubt.
592 APPENDIX I.
One government can hardly be expected to surrender its citizens
on substantial proof of guilt, if the other government refuses to
do so simply for want of technical proof.
It is hoped that the conference suggested may result in a mutu-
ally satisfactory understanding of the two Governments as to the
working of Articles VIII and X and of Article IV of the treaty.
Accept, etc.
JOHN HAY.
C
Report of a conference between the Mexican Ambassador and the
Solicitor for the Department of State.
At 10 o'clock a. m. on the 25th of January, 1900, the Mexican
Ambassador appeared at the office of Mr. William L. Penfield,
Solicitor for the Department of State, for the purpose of holding
Avith him a conference, which His Excellency John Hay deemed
expedient in order to agree on certain fixed rules that might facili-
tate the practical application of some articles of the extradition
treaty in force between Mexico and the United States, owing to
certain differences of opinion between the two contracting par-
ties which had arisen in recent extradition cases presented by the
former and the latter nation, respectively.
The conference having commenced and the points of discussion
having been determined, the same being comprised in Article IV,
paragraph 3 of Article VIII, and Article X of the treaty, Mr.
Penfield expressed the desire to know whether in all cases of homi-
cide it was necessary, in conformity with the laws of Mexico, in
order to proceed with the arrest and commitment for trial of a
defendant, to establish the existence of the corpus delicti by means
of technical proof of the crime, as might be inferred from the
decision rendered by the Mexican Government on November 15,
1899, when it denied the demand for the extradition of Leonardo
Gonzales; whether such proof can be substituted by other proof,
when it is impossible or difficult to obtain expert testimony; and
whether if the extradition, once denied through lack of proof,
might be granted afterwards upon presentation of perfected proof.
He made reference to said Gonzales case and remarked that al-
though the proofs submitted when that extradition was demanded!
might be considered insufficient, later on other proofs had been
APPENDIX I. 593
adduced, consisting of the testimony of eyewitnesses, which
strengthened the first proof submitted; and he stated that the im-
pression the people and some State officer of Texas had with ref-
erence to said decision was to the effect that the fact that Leon-
ardo Gonzales was a Mexican had had a great deal to do in the
way such decision was rendered, although the United States Gov-
ernment had delivered up Mattie Rich, an American citizen, to the
Mexican authorities, thereby establishing a precedent which he
hoped would he followed by the latter.
Mr. Azpiroz replied in the following terms:
"The extradition of Leonardo Gonzales was refused solely on
the ground that no sufficient proofs had been presented as to the
existence of the corpus delicti to the Mexican Government. It does
not appear that the fact that the defendant was a Mexican citizen
had, directly or indirectly, any influence in the decision.
"It is to be presumed that the Mexican Government would have
been willing to grant the extradition by availing itself of the dis-
cretional power that the treaty between Mexico and the United
States of February 22, 1899, gives to both of the high contract-
ing parties to deliver up its own citizens, had the existence of
the corpus delicti of the homicide charged to Gonzales been proved,
in view of the desire it has to put into practical operation the
ends that both Governments had contemplated when they entered
'into that treaty, and of the example recently given by the United
States when it delivered up Mattie Rich. The Mexican Govern-
ment, however, was not able to follow this precedent in the Gon-
zales case, because the facts in the latter case were different from
those in the former, and had. of course, to lead to different results.
As a matter of fact, the corpus delicti in the case of Mrs. Rich
had been proved in conformity with the laws of Texas, and the
only thing left for the discretionary decision of this Government
was whether it should or should not surrender her, owing to her
citizenship ; whilst in the case of Gonzales there was wanting suffi-
cient proof of the corpus delicti, which was indispensable for his
arrest and commitment for trial, in the supposition that the crime
imputed to him had been committed in Mexico, since the treaty
itself, in its Article III, paragraph 1, prohibits the delivery of the
accused in such a case.
Treaties— 38
594 APPENDIX I.
"The proof of the guilt of Leonardo Gonzales, in order to justify
his arrest and commitment for trial, had to conform to the laws
of tie State of Coahuila, where the defendant was found, and to
to tlo federal law on extradition approved May 19, 1897, which
should be complied with in everything not otherwise provided
for l»y the treaty. According to the code of penal procedure of
Coabuila [a copy of the articles relative to the matter under dis-
cuss? m, together with an English translation, having been deliv-
ered by Mr. Azpiroz to Mr. Penfield], which is substantially on
thifr point the same as the laws of criminal procedure in force in
the other States, in the Federal District, in the Territories of the
M( tican Union, 'the basis for a criminal proceeding is the proof
of the existence of an act or that of an omission, which the law
co 'isiders to be a delict ; without such proof no further proceedings
ca.i be had.'
"In cases of homicide proof must be presented of the fact that
o^te person had been killed by another, and furthermore there
must be proof that some individual has been the real or at least
lie suspected slayer, so that he may be arrested and committed
tor trial for that crime.
''The law indeed requires, in order that there may be sufficient
proof of the corpus delicti, that an autopsy of the corpse may be
had, if that is possible; but if it could not be done, secondary
proof may be produced, although even then the law requires that
such proof may be passed upon by experts ; and it is only when it
is absolutely impossible to obtain the opinion of experts that it
requires that such proof may be substituted by the testimony of
witnesses who may have seen the corpse and the hurts, or that in
some other way may know the facts regarding the crime, stating
the circumstances which are indispensable to produce the certainty,
or a great probability, that a homicide has been committed, and at
least a suspicion as to who may have caused it.
' ' In fine, the documents that must be furnished with the requisi-
tion (for extradition) must prove the existence of the corpus delicti
and furnish evidence of the identity and at least presumptions of
the guilt of the person whose extradition is demanded, in such a
manner that his arrest and prosecution might be ordered, in con-
formity with the laws of the Republic, had he committed the
offense within its territory.
APPENDIX I. 595
' ' Since the local law establishes the testimony of experts as direct
evidence, and that of simple witnesses as secondary, it is evident
that secondary evidence is not sufficient until it is shown in some
;ay that it was impossible to obtain direct evidence.
The foregoing prescriptions of Mexican law in criminal pro-
cedure are substantially in accord with the common law that gen-
rally is enforced by the courts of the United States of America.
'It happens very often that the place where the corpse should
found is not known, when such corpse has been destroyed or
its exhumation is impracticable, or there is no surgeon to make
the autopsy ; but it is scarcely to be supposed that there could
be any place in the United States where no physician, or at least
a practitioner without diploma, might be found. Nevertheless,
the laws of Mexico even provide for such a remote case, and lay
down easy and reasonable rules for the substitution of expert tes-
timony. Whenever these prescriptions are complied with, as well
as the other requisites established in the treaty with the United
States for the extradition of fugitives from justice of this country,
the Mexican authorities who are required under said treaty to
decide extradition cases will give their decisions boiia fide, guiding
themselves by the desire to facilitate the trial of criminals by
competent courts, the fact that the accused is a Mexican citizen
not being sufficient inducement to make them deviate from that
purpose. ' '
The Ambassador added:
"I find no legal objection against the presentation of the de-
mand for extradition of a defendant a second time, if the proof
that should accompany it, and owing to whose deficiency it was
rejected, is perfected. In the special case of Leonardo Gonzales
other testimony was added to that which accompanied the demand
for extradition, but only after such demand had been denied, so
that the Mexican Government did not even have the opportunity
to know it when it rendered its decision."
Mr. Penfield inquired whether the Mexican Government would
grant the extradition of Gonzales upon presentation of the new
testimony which served to fortify that formerly given, in case that
it should be sent with a new demand from the governor of Texas.
The Ambassador answered that in his personal opinion, formed
upon examination of the case, the new proof would not be consid-
596 APPENDIX I.
ered satisfactory. "It is not yet," he added, "the proof re-
quired under the laws of Coahuila, nor has it been shown that it
had been impossible to produce such a proof. It is a matter to
strongly arouse our attention that the new proof, which is sup-
posed to have existed at the same time as the facts to be proved
thereby, had been omitted when the demand was made, should have
been substituted by another of even less value, and should not
have been presented during the time taken for the proceedings had
to arrive at a decision of the case, which proceedings lasted very
nearly four months; notwithstanding the fact that it should have
been ready and that it was deemed decisive of the case, and that
when the additional proof was sent to Mexico so inopportunely no
explanation was given as to the delay occurring in its transmis-
sion. Furthermore, it should be said that the testimony consists
of the depositions of two children, one 14 and the other 12 years
of age, which are considered as among the weakest testimony that
can be presented in conformity with the law."
Regarding the "authenticated copy of the law of the demand-
ing party, which defines the crime and establishes its punishment, ' '
that is required under the third paragraph of Article VIII of the
treaty, the Ambassador agreed with Mr. Penfield that said requisite
had been prescribed in extradition cases only for crimes specified
in sections 19 and 21 of Article II of the treaty.
Finally, they both were of the opinion that Article I devolves
the surrender of the accused to each one of the contracting Gov-
ernments, respectively; that Article VIII prescribes that the de-
mands made in conformity thereto should be presented by the
diplomatic agents, and that only in their absence by the superior
consular officers of each one of the contracting parties, or in the
cases mentioned in Article IX, by the first civil, military, or judi-
cial authority of the proper frontier State or Territory, and that
in conformity with those prescriptions Article X requires that the
diplomatic channel should be resorted to in order to obtain the pro-
visional arrest of the accused and his safe custody, while the demand
for his extradition is completed, and that each of the contracting
Governments are required to endeavor to render efficient these pre-
cautionary measures ; or in other words, that all demands in extra-
dition cases should be addressed by one of the two contracting
Governments to the other through the channel of its respective
APPENDIX I.
597
diplomatic agent, excepting in the cases specified in the first para-
graph of Article VIII and in Article IX of the treaty.
.Mr. Penfield asked Mr. Azpiroz to prepare a draft containing
instructions for the governors of the frontier States and Territory
of this Republic in such way as suitably to facilitate their com-
pliance with the provisions of Mexican law in each case, in order
that he might submit such draft to the Secretary of State, whereby
the rules that should be adopted might be laid down, as the result
of an agreement, which could bear the form of a simple exchange
of notes, or any other form that might be deemed expedient.
Mr. Azpiroz promised to prepare the draft mentioned and to
send it to Mr. Penfield.
Thereupon the conference closed, both parties thereto showing
themselves satisfied over its results.
D
Articulos del Codigo de Proce-
dimientos penales del Estado
de Coahuila relatives a la com-
probacion del cuerpo del de-
lit o.
ART. 133. La base del proce-
dimiento criminal es la compro-
bacion de la existencia de un
hecho 6 la de una omision que
la ley reputa delito: sin ella no
puede haber procedimiento ul-
terior.
ART. 134. Todo juez que
adquiera conocimiento de que se
ha cometido un delito, si existe
el objeto material sobre el cual
ha sido cometido, debera hacer
que se extienda una acta en que
se describan minuciosamente los
caracteres y senales que presente
[Translation.]
Articles of the Code of Criminal
Procedure of the State of Coa-
huila relative to the proof of
the corpus delicti in criminal
cases.
ART. 133. The basis for a
criminal proceeding is the proof
of the existence of an act or that
of an omission which the law
considers to be a delict : without
it no further proceedings can be
had.
ART. 134. Any judge who
may obtain knowledge that a
delict has been committed, if the
material object on which it has
been committed should exist,
ought to have a report made
wherein the character and signs
presented by the hurt, or the
598
APPENDIX I.
la lesion, 6 los vestigios que el
delito haya dejado, el instru-
mento 6 medio con que prob-
able 6 necesariamente haya de-
bido cometerse y la manera de
que se haya hecho uso del in-
strumento 6 medio para la ejecu-
cion del delito. El objeto sobre
que este haya recaido, se de-
scribira de modo que queden
determinadas su situacion y
cuantas circunstancias puedan
contribuir a indagar el origen
del delito, asi como su gravedad
y los accidentes que lo hayan
acompariado. Esta acta se
llama de descripcion.
ART. 135. Ademas de la acta
de descripcion se extendera otra
de inventario, si se encontraren
algunos instruments u otras
cosas que puedan tener relacion
proxima 6 remota con el hecho
mismo. Cuando los objetos en-
contrados fueren pocos y se hal-
laren en el mismo sitio 6 a las
inmediaciones del lugar en que
se cometio el hecho, el acta de
descripcion podra contener el in-
ventario de aquellos.
ART. 141. En el acto de la in-
speccion del lugar en que se
cometio el delito, el juez debe
traces which may be left by the
delict shall be minutely de-
scribed, as well as the instru-
ment or means with which it
may probably or necessarily
have been committed, and the
manner in which the instrument
may have been used for the
execution of the delict. The ob-
ject on which the delict may
have been committed, shall be
described in such a way that its
situation and any circumstances
that may contribute to deter-
mine the origin of the delict
shall be set forth, as well as
the gravity and the accidents
that may have accompanied the
delict. This report shall be
called the description of the
delict.
ART. 135. Besides the de-
scription of the delict there shall
be made an inventorial report,
if there should be found any in-
struments or other things that
may have a proximate or re-
mote relation to the act itself.
Should the objects found be
few and be discovered in the
same place or near by the place
where the act was committed,
the report containing the de-
scription may also comprise the
inventory of such articles.
ART. 141. During the official
investigation relative to the
place where the delict was com-
APPENDIX I.
599
examinar a todas las personas
que puedan proporcionar alguri
esclarecimiento sobre el delito y
sobre sus autores y complices, 6
algunas noticias titiles para la
averiguacion de la verdad 6 de-
signar otras personas que puedan
larlos.
ART. 148. Si el delito fuere
le homicidio u otro caso de
luerte por causa desconocida y
spechosa 6 solamente so-
spechosa, se procedera al examen
del cadaver con intervencion de
peritos, y se ordenara su au-
topsia extendiendose diligencia
formal con expresion circun-
stanciada de la postura en que
se halle el cadaver, del numero
de heridas 6 lesiones, de las par-
tes del cuerpo en que las tiene,
del vestido y demas ef ectos que
;e encontraren y de las senales
que se adviertan en el terreno
inmediato.
ART. 149. Antes de pro-
cederse a la autopsia del cadaver
se comprobara su identidad por
medio de sus parientes 6 amigos,
que seran examinados en debida
forma, para que declaren el
nombre del muerto, su profesion
y vecindad, las senas personales
mitted, the judge ought to ex-
amine all persons whose testi-
mony may throw light on the
delict and on its principals and
accomplices, or afford any infor-
mation that may be useful for
the investigation of the truth,
or designate some other persons
who may be able to give such
testimony.
ART. 148. If the delict should
be homicide, or any other case
of death owing to an unknown
and suspicious cause, or simply
owing to a suspicious cause, the
examination of the corpse shall
be proceeded with the attendance
of experts, and the autopsy of
the body shall be ordered, and a
report be made stating with pre-
cision the position in which the
corpse is found, the number of
wounds or hurts, the portions
of the body where the same may
be discovered, the clothing and
other articles that may be found,
and any marks or signs that may
be discovered in the immediate
vicinity of the place.
ART. 149. Before beginning
the autopsy of the corpse, its
identity must be proved by
means of the relatives or friends
of the deceased, who shall be
examined in legal form so that
they may testify as to the name
of the deceased, his profession
600
APPENDIX I.
y las ropas que vestia cuando
salio de su casa.
ART. 150. Si no se puede
identificar el cadaver, se de-
scribiran las senas particulares
que tuviere, sus facciones, sus
vestidos 6 cualquiera otro objeto
que se le encuentre; y si el es-
tado del cadaver lo permite, se
le expondra al publico por las
horas que el juez crea con-
veniente, a fin de que pueda ser
visto y reconocido, sacandose
anemas, si fuere posible, retratos
fotograficos de los cuales se
agregara uno a los autos y se
mandaran fijar los demas en los
lugares publicos, cuando no se
haya podido obtener aquel re-
conocimiento.
ART. 152. Si se hubiere
sepultado el cadaver antes de
practicar las diligencias an-
teriores, se ordenera su exhuma-
cion cuando el juez lo juzgue
necesario 6 lo soliciten las partes
acusadoras, por su cuenta, ob-
servando las debidas precau-
ciones higiencais y asistencia de
peritos, y practicandose en se-
guida las diligencias que fuerren
posibles de las que mencionan los
antecedentes articulos.
and residence, his personal de-
scription and the clothing he
wore when he left his house.
ART. 150. Should it not be
possible to identify the corpse,
the peculiar description of the
deceased, as well as his features,
his clothing and any other arti-
cle that may be found on him
shall be recorded ; and if the con-
dition of the corpse should per-
mit, it may be exposed for in-
spection by the public during
the hours which the judge may
deem proper, so that it may be
seen and recognized and, if pos-
sible, photographs shall be taken
of the body and one of them
shall be added to the record and
the rest shall be affixed in pub-
lic places if the corpse shall not
have been identified.
ART. 152. If the corpse shall
have been buried before the fore-
going proceedings can be had,
an order shall be issued so as to
have it exhumed, should the
judge think this proceeding be
proper or the complainants de-
mand it at their expense; all
due hygienic precautions being
taken and the exhumation being
carried on in the presence of
experts, and thereupon such pro-
ceedings as are mentioned in the
foregoing articles shall, if pos-
sible, be carried on.
APPENDIX I.
601
ART. 153. Cuando porcual-
quiera causa no pueda formarse
juicio pericial con el examen del
cadaver, 6 este no pueda ex-
Jnimarse, aquel juicio se suplird
con las declaraciones de los tes-
tigos que hubiren visto antes el
cadaver y las lesiones que haya
tenido. Estos testigos manifes-
tardn en que parte del cuerpo ex-
istian las lesiones, indicar an las
annas con que crean que se
hayan hecho y dirdn si son dc
opinion que todas 6 algunas de
lesiones hayan ocasionado la
luerte.
ART. 154. En caso de que el
cadaver no pueda encontrarse,
el juez comprobara la existencia
de la persona, el tiempo que
laya trascurrido desde que no
tenga noticia de ella, el
iltimo lugar en que se le haya
risto, y como el cadaver haya
>dido ser ocultado 6 destruido.
Ademas recogera todos los
medios de prueba que con-
duzcan a la comprobacion 6
existencia del cuerpo del delito.
ART. 155. Los peritos daran
su declaracion sobre la causa
de la muerte, manifestando en
que tiempo mas 6 menos prox-
imo pudo acontecer esta, y si
fue a consecuencia de las le-
ART. 153. Whenever, owing
to any circumstances, no exam-
ination can l)e made by experts,
or the corpse cannot be exhumed,
such proceedings shall be sub-
stituted by the testimony of the
witnesses who shall have seen
the corpse before, as well as the
hurts that it may have had
Said witnesses shall state in what
part of the body the hurts ex-
isted and- shall testify as to the
arms with which they may be-
lieve that said hurts were made,
and will state if, in their opin-
ion, all or any of the said hurts
shall have brought about the
death of the deceased.
ART. 154. Should it not have
been possible to find the corpse,
the judge must obtain proofs
as to the existence of the indi-
vidual, the time that may have
elapsed since no news have been
received regarding him, the last
place where he may have been
seen, and how the corpse could
have been hidden or destroyed.
Furthermore he shall obtain all
means of proof that may lead
to the evidence or existence of
the corpus delicti.
ART. 155. 'The experts shall
give their opinion regarding the
cause of death, the approximate
time when that event may have
occurred, and if the death oc-
curred owing to the hurts or
602
APPENDIX I.
siones 6 antes de ellas, 6 por el
concurso de causas pre-ex-
istentes 6 de las que sobre-
vinieron 6 de otras extranas el
delito, teniendo presente lo que
disponen los articulos 544, 545
y 546 del Codigo penal. Cu-
ando los peritos no se expliquen
respecto de estas circunstancias,
el juez de oficio les interrogara
acerca de ellas.
ART. 156. Sie se tratare de
alguna persona herida 6 gol-
peada, el juez, acompailado de
los peritos, describira las le-
siones 6 golpes, indicara el lu-
gar en que esten, y senalara
su longitud, anchura y pro-
fundidad ostensible, si hubiere
peligro en averiguar cual sea la
profundidad real. Hara que
los peritos expresen la calidad
de las lesiones y si estan hechas
con armas de fuego, 6 con armas
punzantes, cortantes 6 con-
tundentes, 6 de otro modo.
ART. 157. Si los peritos no
pudieren ser habidos desde luego,
el juez 'procederd sin su asisten-
cencia, en los terminos del ar-
ticulo anterior.
before these were inflicted, or
owing to a combination of pre-
existing causes or of those that
occurred afterwards, or to oth-
ers entirely foreign to the delict,
and for that purpose they shall
take into consideration the pre-
scriptions of articles 544, 545
and 546 of the Penal Code.
Whenever the experts shall not
give any explanation regarding
such circumstances, the judge ex
officio must interrogate them con-
cerning the same circumstances.
ART. 156. If the case may be
of a person wounded or beaten,
the judge assisted by experts,
shall describe the wounds or
blows and determine the site and
the length, breadth and apparent
depth thereof, should there be
any danger of determining its
real depth. He shall require the
experts to express the nature of
the hurts and whether they were
caused by fire, cutting or pointed
arms, or by bruising instru-
ments, or in any other manner.
ART. 157. // it is not possible
to obtain experts at once, the
judge shall proceed with his in-
vestigation without them, in con-
formity with the prescriptions of
the foregoing article.
APPENDIX I.
603
Articulos 544, 545 y 546 del
Codigo penal citados en el ar-
ticido 155 del Codigo de Pro-
cedimientos penales.
ART. 544. Para la imposicion
de la pena no se tendra como
mortal una lesion sino cuando
se verifiquen las tres circun-
stancias siguientes:
I. Que la lesion produzca por
si sola y directamente la muerte ;
6 que aun cuando esta resulte
de causa distinta, esa causa sea
desarrollada por la lesion 6
efecto necesario 6 inmediato de
ella:
II. Que la muerte se verifique
deiitro de sesenta dias contados
desde el de la lesion.
III. Que despues de hacer la
autopsia del cadaver, declaren
dos peritos que la lesion fue
mortal, sujetandose para ello a
las reglas contenidas en este ar-
ticulo y en los dos siguientes.
ART. 545. Siempre que se
verifiquen las tres circustancias
del articulo anterior, se tendra
como mortal una lesion, aunque
se pruebe que se habria evitado
la muerte con auxilios opor-
tunos: que la lesion no habria
sido mortal en otra persona ; 6
que lo fue a causa de la eonsti-
tucion fisica de la victima, 6
Articles 544, 545 and 546 of the
Penal Code referred to in Art.
155 of the Code of Criminal
Procedure.
ART. 544. For the infliction
of punishment, a hurt shall not
be considered mortal, unless the
three following circumstances
shall have occurred :
I. That the hurt by itself and
directly shall produce death; or
that even if death shall have oc-
curred from another cause, the
latter cause shall be due to the
hurt or be the immediate or nec-
essary result of the same.
II. That death shall occur
within sixty days after the hurt
may have been inflicted.
III. That after the autopsy of
the corpse may be had, two ex-
perts shall have declared that the
hurt was mortal, in conformity
for such purpose with the rules
contained in this article and the
two following.
ART. 545. Whenever the
three circumstances named in the
foregoing article may occur, the
hurt shall be considered mortal,
although it may be proved that
death could have been prevented
by opportune help ; that the hurt
would not have been mortal in
another person ; or that it was
mortal owing to the physical
604
APPENDIX I.
delas circunstancias en que re-
cibio la lesion.
ART. 546. Como consecuencia
de las declaraciones que pre-
ceden, no se tendra como mortal
una lesion, aim que muera el que
la recibio ; cuando la muerte sea
resultado de una causa que ya
existia y que no sea desarrollada
por la lesion, ni cuando esta se
haya vuelto mortal por una
causa posterior a ella como la
aplicacion de medicamentos posi-
tivamente nocivos, operaciones
quirurgicas desgraciadas 6 ex-
cesos 6 imprudencias del pa-
ciente 6 de los que lo asistan.
constitution of the deceased or to
which occurred when he received
the hurt.
ART. 546. As a result of the
foregoing statements, a hurt
shall not be considered mortal,
even if the person who received
it may die, when death shall have
been the result of a cause al-
ready existing and may not have
been due to the hurt, nor when
the hurt shall become mortal
through a cause occurring there-
after, as the application of medi-
cines really noxious, unfortunate
surgical operations, or abuses or
imprudent acts of the patient or
of those who may have assisted
him.
Department of State,
Washington, April 10, 1900.
His Excellency
The Governor of
Sir: In connection with my letter of March 26 last, in relation
to the extradition from Mexico of fugitives from the justice of the
United States, I have the honor to enclose herewith for your fur-
ther information a memorandum prepared at the request of the
Department of State by the Mexican Ambassador at Washington,
showing the formalities which are required by his Government to
be observed in extradition cases under the treaty between the United
States and Mexico of February 22, 1899.
I have the honor to be, Sir,
Your obedient servant,
JOHN HAT.
Enclosure: Memorandum as above.
APPENDIX I. 605
MEMORANDUM A$ TO EXTRADITION FROM MEXICO.
1. Every requisition for extradition under the provisions of the
treaty between the United States of America and Mexico shall be
accompanied either by a copy of the sentence of the court in which
the extraditable person was convicted, or by papers proving the al-
leged crime or offense. The requisition shall, in all cases, be also
accompanied by a description of the accused, in order to establish
his identity with the person whose extradition is demanded.
2. The corpus delicti of homicide in cases of a person not yet
sentenced must be established by ocular inspection of the corpse
and by medical testimony. If scientific evidence cannot be had,
upon their impracticability being set forth, the testimony of relia-
ble persons (experts to be preferred) or other proper evidence may
be produced.
3. The general rule shall always be that, in order to prove the
dstence of the corpus delicti, which is a requisite for the arrest
and commitment for trial of a person charged with the crime or
offense, the best evidence the nature of the case admits of shall be
presented, if possible to be had; but if not possible, then the best
that can be had may be allowed.
4. The testimony of witnesses under fourteen years or of other
disqualified persons will not be admitted, unless the circumstances
of the case show that better evidence cannot be had.
5. Each witness must explain satisfactorily the manner in which
the facts asserted by him or her came to his or her knowledge.
6. The provision contained in the third paragraph of Article
VIII of the treaty for the addition of an "authenticated copy of
the law of the demanding copy defining the crime or offense ' ' shall
be observed when the extradition is demanded for a crime or offense
under the numbers 19 or 21 of the schedule of Article II.
7. In the cases of crimes or offenses committed or charged to have
been committed by extraditable persons in any of the frontier
States or Territories, requisitions for surrender may 'be made either
through the diplomatic or consular agents of the demanding coun-
try, or through the authorities of such bordering State or Territory
enumerated in Article IX of the treaty. In all other cases requisi-
tions shall be made by the respective diplomatic agents, or, in their
606 APPENDIX I.
absence, by the superior consular officers, as prescribed by the first
paragraph of Article VIII.
8. The provisional arrest authorized by Article X of the treaty
must invariably be requested through the diplomatic or consular
agent, whether the crime or offense was committed or charged to
have been committed in the frontier States or Territories, or else-
where.
April, 1900.
Department of State,
Washington, May 14, 1900.
His Excellency
The Governor of
Sir : Referring to my letter of April 10, 1900, and its accompany-
ing memorandum by the Mexican Ambassador at this capital show-
ing the formalities which are required by this Government to be
observed in extradition cases under the treaty between the United
States and Mexico of February 22, 1899, I have the honor to en-
close for your information and guidance a further memorandum
from the Mexican Ambassador modifying paragraphs 1 and 6 of
the memorandum first mentioned. The modifications are under-
scored.
I have the honor to be, Sir,
Your obedient servant,
JOHN HAY.
MEMORANDUM.
1. Every requisition for extradition under the provisions of the
treaty between the United States of America and Mexico shall be
accompanied either by a copy of the sentence of the court in which
the extraditable person was convicted, or by papers proving that
the alleged crime or offense has been committed and that there are
presumptions against the accused. The requisition shall, in all
cases, be also accompanied by a description of the accused, in or-
der to establish his identity with the person whose extradition is
demanded.
APPENDIX I. 607
6. The provision contained in the third paragraph of Article
VIII of the treaty for the addition of "an authenticated copy of
the law of the demanding country denning the crime or offense"
shall be observed only when the extradition is demanded for a
crime or offense under the numbers 19 or 21 of the schedule of
Article II.
Department of State,
Washington, June 4, 1906.
His Excellency
The Governor of
Sir: In view of certain irregularities which have sometimes oc-
curred in connection with the return to the United States from for-
eign countries of fugitives from justice, applications for extradition
of such fugitives which are addressed to the Secretary of State
should hereafter state that such application is made solely for the
purpose or purposes expressed therein, and not for the purpose of
enforcing the collection of a debt, or of avoiding the penalty of a
bail bond, or for any private purpose whatever, and that if the ap-
plication be granted the criminal proceedings shall not be used for
any of said purposes.
I have the honor to be, Sir,
Your obedient servant,
ROBERT BACON,
Acting Secretary.
'Paste this leaf in Devlin's Treaty Making Power preceding page 609."
SUPPLEMENT,
Since the publication of this work the printed volumes of the
statutes of the United States passed at the first session of the Six-
tieth Congress 1907-08 have appeared and in Part II the following
additional treaties and conventions are found:
Page
Universal Postal Convention, feigned at Rome May 26, 1906;
proclaimed October 16, 1906 5
International Sanitary Convention. Signed at Paris Decem-
ber 3, 1903 ; proclaimed May 18, 1907 136
International convention providing for the exemption of hos-
pital ships from payment of dues and taxes. Signed at
The Hague December 21, 1904; proclaimed May 21, 1907. . 220
Convention with Mexico determining territorial jurisdiction of
bancos in the Rio Grande. Signed at Washington March
20, 1905; proclaimed June 5, 1907 229
Treaty with Nicaragua for the extradition of- fugitives from
justice. Signed at Washington March 1, 1905 ; proclaimed
June 15, 1907 235
Convention with Guatemala for the protection of patents.
Signed at Guatemala City November 10, 1906 ; proclaimed
July 9, 1907. . 244
Convention with Dominican Republic for assisting in the col-
lection and application of its customs revenues. Signed
at Santo Domingo February 8, 1907 ; proclaimed July 25,
1907 : , . . . 246
International convention for the amelioration of the condition
of the wounded of armies in the field. Signed at Geneva
July 6, 1906 ; proclaimed August 3, 1907 251
International convention revising the duties on spirituous
liquors imported into certain regions of Africa. Signed
at Brussels November 3, 1906; proclaimed December 2,
1907 278
(over)
SUPPLEMENT.
Pa
International convention creating an International Institute of
. Agriculture at Rome. Signed at Rome June 7, 1905 ; pro-
claimed January 29, 1908 234
Convention with France for the settlement of disputes by ar-
bitration. Signed at Washington February 10, 1908 ; pro-
claimed March 14, 1908 293
Parcels-post convention with Netherlands. Signed at Wash-
ington May 10, 1907, at The Hague March 19, 1908; ap-
proved by the President May 10, 1907, by Netherlands
March 24, 1908 29J
International convention of American Republics on literary
and artistic copyrights. Signed at Mexico City January
27, 1902 ; proclaimed April 9, 1908 30C
Treaty with Spain for the extradition of fugitives from jus-
tice. Signed at Madrid June 15, 1904 ; protocol signed
at San Sebastian August 13, 1907 ; proclaimed May 21,
1908 ;
Convention with Spain for the settlement of disputes by ar-
bitration. Signed at Washington April 20, 1908; pro-,
claimed June 3, 1908.
Convention with Great Britain for the settlement of disputes
by arbitration. Signed at Washington April 4, 1908;
proclaimed June 5, 1908 32(
APPENDIX II.
TREATIES IN FORCE.
The Senate of the United States, on February 11, 1904, adopted
a resolution providing that a revised edition of the compilation
of treaties in force should be prepared under the direction of the
Committee on Foreign Relations, and that there should be inserted
in such edition all treaties proclaimed and in force at the end of
that session of Congress.
Pursuant to this resolution a revised edition of treaties in force
was prepared under the direction of the Committee on Foreign
Relations, by Mr. William M. Malloy, which contains the treaties
and conventions, important international acts, agreements and pro-
tocols, excepting claim protocols to which the United States is a
party, in force on April 28, 1904. A supplement was added con-
taining the treaties ratified during that session of Congress, but
which were not proclaimed and put in force until after the ad-
journment of Congress on April 28, 1904.
The compilation prior to its publication was submitted to the
Secretary of State, and was examined by the Department of State
with the object of excluding agreements and parts of agreements
which are no longer considered as operative and of comprising all
that are still effective.
References in the following pages are made to the treaties and
conventions contained in that volume which are still deemed to
be in force under the designation "U. S. Treaties 1904," and also
to the Statutes at Large of the United States, where they also may
be found. The synopsis of treaties, the notes as to their effect, and
the chronological list of treaties, are taken from the treaty volume
'he treaties that have been entered into since the publication of
that compilation are referred to by the volume and page of the
Statutes at Large of the United States where they appear, ex-
jpt those made in 1908, which were not accessible at the time this
fork went to press.
Treaties— 39 (609)
610 APPENDIX II.
ALGIERS.
1795.
TREATY OF PEACE AND AMITY.
Concluded September 5, 1795; ratification advised by the Senate
March 2, 1796. (Treaties and Conventions, 1889, p. 1.)
U. S. Treaties 1904, p. 21; 8 Stats, at Large, 133.
This treaty of twenty-two articles provided for peace, commercial
intercourse, and friendly treatment of the citizens and shipping of
the United States in consideration of an annual payment to the
Dey of Algiers. It was superseded by the treaty of 1815.
1815.
TREATY OP AMITY AND PEACE.
Concluded June 30, 1815 ; ratification advised by the Senate De-
cember 21, 1815; ratified by the President December 26, 1815 ;
proclaimed December 26, 1815. (Treaties and Conventions,
1889, p. 6.)
U. S. Treaties 1904, p. 21; 8 Stats, at Large, 224.
This treaty of twenty-two articles was signed by Commodore
Decatur and William Shaler, and provided for the abolition of the
annual payment, for the restitution of captives and property, for
commercial intercourse, etc.
1816.
TREATY OF PEACE AND AMITY.
Concluded December 22 and 23, 1816 ; ratification advised by the
Senate February 1, 1822; ratified by the President February
11, 1822; proclaimed February 11, 1822. (Treaties and Con-
ventions, 1889, p. 10.)
U. S. Treaties 1904, p. 21; 8 Stats, at Large, 244.
By this treaty of twenty-two articles the same privileges included
in the treaty of 1815 were renewed, with an additional article
APPENDIX II. 611
annulling the special rights accorded to United States vessels in
case of war.
Algiers having become a province of France in 1830, the treaty
became obsolete.
ARGENTINE REPUBLIC.
(ARGENTINE CONFEDERATION.)
1853.
TREATY FOR THE FREE NAVIGATION OF THE RIVERS PARANA AND
URUGUAY.
Concluded July 10, 1853; ratification advised by the Senate June
13, 1854; ratified by the President July 5, 1854; ratifications
exchanged December 20, 1854; proclaimed April 9, 1855.
(Treaties and Conventions, 1889, p. 16.)
U. S. Treaties 1904, p. 22; 10 Stats, at Large, Treaties, 233.
ARTICLES.
I. Free navigation of Parana V. Possession of Martin Garcia
and Uruguay rivers con- Island.
ceded. VI. Free navigation in time of
II. Loading and unloading vessels. war.
III. Marking channels. VII. Accession of other South
IV. Collection of customs and American governments.
other dues. VIII. Most favored nation clause.
IX. Ratification.
1853.
TREATY OF FRIENDSHIP, COMMERCE AND NAVIGATION.
Concluded July 27, 1853 ; ratification advised by the Senate June
13, 1854; ratified by the President June 29, 1854; ratifications
exchanged December 20, 1854; proclaimed April 9, 1855.
(Treaties and Conventions, 1889, p. 18.)
U. S. Treaties 1904, p. 24; 10 Stats, at Large, Treaties, 237.
612 APPENDIX II.
AETICLES.
I. Amity. IX. Privileges of citizens; settling
II. Mutual freedom of commerce. estates.
III. Most favored nation clause. X. Exemptions from military ser-
IV. No discriminating duties to be vice and forced loans; taxes.
levied. XI. Diplomatic and consular
V. Navigation dues to be equal. agents.
VI. Mutual privileges to vessels. XII. Privileges in time of war.
VII. Nationality of vessels. XIII. Mutual protection to citizens.
VIII. Freedom to trade. XIV. Eatification.
1896.
EXTRADITION CONVENTION.
Concluded September 26, 1896; ratification with amendments ad-
vised by Senate January 28, 1897 ; ratification advised Febru-
ary 5, 1900; ratified by President April 7, 1900; ratifications
exchanged June 2, 1900; proclaimed June 5, 1900.
TJ. S. Treaties 1904, p. 29; 31 Stats, at Large, 1883.
AETICLES.
I. Mutual delivery of the ac- VIII. Offense for which to be tried,
cused. IX. Articles in possession of ac-
II. Extraditable crimes. cused.
III. Nondelivery of citizens. X. Persons claimed by other coun-
IV. Procedure. tries.
V. Provisional detention. XI. Expenses.
VI. Political offenses. XII. Eatification; duration.
VII. Limitations.
AUSTRIA-HUNGARY.
1829.
TREATY OP COMMERCE AND NAVIGATION.
Concluded August 27, 1829; ratification advised by the Senate Feb-
ruary 10, 1830; ratified by the President February 11, 1830;
ratifications exchanged February 10, 1831; proclaimed Febru-
ary 10, 1831. (Treaties and Conventions, 1889, p. 23.)
IT. S. Treaties 1904, p. 33; 8 Stats, at Large, 398.
APPENDIX II.
613
AETICLES.
I. Liberty of commerce and nav- VI.
igation.
II. Shipping charges to be equal. VII.
III. No discrimination in import VIII.
duties.
IV. Application of two preceding IX.
articles. X.
V. Most favored nation treat- XI.
ment of products. XII.
XIII.
Eeciprocal right of vessels to
export.
Coastwise trade.
No discriminations against ves-
sels.
Most favored nation favors.
Consular officers authorized.
Property of deceased persons.
Duration.
Eatification.
The period for the exchange of ratifications was extended, with
the advice and consent of the Senate, by resolution of February 3,
1831, and the consent of the Emperor of Austria, expressed by his
minister in the certificate of exchange of ratifications, February 10,
1831.
1848.
CONVENTION RELATIVE TO DISPOSAL OF PROPERTY AND CONSULAR
JURISDICTION.
Concluded May 8, 1848; ratification advised and time for exchange
of ratifications extended to July 4, 1850, ~by the Senate Feb-
ruary 13, 1850; ratified ~by the President February 15, 1850;
ratifications exchanged February 23, 1850; proclaimed Febru-
ary 25, 1850. (Treaties and Conventions, 1898, p. 27.)
U. S. Treaties, 1904, p. 37; 9 Stats, at Large, Treaties, 152.
AETICLES.
Disposal of personal property. III. Protecting property of absent
". Disposal of real property held by heirs.
deceased persons. IV. Consular privileges; deserters.
V. Duration.
1856.
EXTRADITION CONVENTION.1
Concluded July 3, 1856; ratification advised by the Senate with
amendment August 13, 1856; ratified by the President Decem-
ber 12, 1856 ; ratifications exchanged December 13, 1856 ; pro-
claimed December 15, 1856. (Treaties and Conventions, 1889,
p. 29.)
IT. S. Treaties 1904, p. 39; 11 Stats, at Large, 691.
1 See In re Baruch, 41 Fed. 472; In re Adutt, 55 Fed. 376.
614 APPENDIX II.
ARTICLES.
I. Extraditable crimes; proceed- III. Persons committing crimes in
ings. country where found.
II. Persons not to be delivered. IV. Duration.
V. Ratification.
1870.
CONSULAR CONVENTION.
Concluded July 11, 1870 ; ratification advised by the Senate De-
cember 9, 1870; ratified by the President December 19, 1870;
time for exchange of ratifications extended by the Senate May
12, 1871; ratifications exchanged June 26, 1871; proclaimed
June 29, 1871. (Treaties and Conventions, 1889, p. 31.)
U. S. Treaties 1904, p. 42; 17 Stats, at Large, 821.
AETICLES.
I. Officers recognized. X. Authority as to shipping.
II. Exemptions and immunities. XI. Disputes between masters and
III. Exemptions as witnesses. crews.
IV. Use of arms and flags. XII. Deserters from ships.
V. Inviolability of archives. XIII. Settlement of damages at sea.
VI. Powers of acting officers. XIV. Shipwreck proceedings.
VII. Vice-consuls and consular XI. Most favored nation privi-
agents. leges.
VIII. Applications to local authori- XVI. Notice of death of intestates.
ties. XVII. Duration; ratification.
IX. Performance of notarial acts.
1870.
NATURALIZATION CONVENTION.
Concluded September 20, 1870; ratification advised by the Senate
March 22, 1871; ratified by the President March 24, 1871; rati-
fications exchanged July 14, 1871; proclaimed August 1, 1871,
(Treaties and Conventions, 1889, p. 37.)
U. S. Treaties 1904, p. 48; 17 Stats, at Large, 833.
ARTICLES.
I. Requirements necessary. IV. Resumption of former citizen-
II. Liability for prior offenses. ship.
III. Former treaties continued. V. Duration.
VI. Ratification.
APPENDIX II. 615
1871.
TRADEMARK CONVENTION.
Concluded November 25, 1871; ratification advised by the Senate
January 18, 1872; ratified by the President January 27, 1872;
ratifications exchanged April 22, 1872; proclaimed June 1,
1872. (Treaties and Conventions, 1889, p. 39.)
U. S. Treaties 1904, p. 50; 17 Stats, at Large, 917.
ARTICLES.
I. Mutual protection of trademarks. III. Duration.
II. Registration. IV. Ratification.
BADEN.
(See GERMAN EMPIRE.)
1857.
EXTRADITION CONVENTION.
Concluded January 30, 1857 ; ratification advised by the Senate
March 12, 1857; ratified by the President March 23, 1857; rati-
fications exchanged April 21, 1857 ; proclaimed May 19, 1857.
(Treaties and Conventions, 1889, p. 41.)
U. S. Treaties 1904, p. 52; 11 Stats, at Large, 713.
ARTICLES.
I. Extraditable crimes; proceed- III. Persons committing crimes in
ings. country where found.
'I II. Persons not to be delivered. IV. Duration.
V. Ratification.
1868.
NATURALIZATION CONVENTION.
Concluded July 19, 1868; ratification advised by the Senate April
12, 1869; ratified by the President April 18,^1869; ratifications
exchanged December 7, 1869; proclaimed January 10, 1870.
(Treaties and Conventions, 1889, p. 43.)
U. S. Treaties 1904, p. 54; 16 Stats, at Large, 731.
616
APPENDIX II.
AETICLES.
I. Requirements necessary.
II. Liability for prior offenses.
III. Former treaty continued.
IV. Resumption of former citizen-
ship.
V. Duration.
VI. Ratification.
BAVARIA.
(See GERMAN EMPIRE.)
1845.
CONVENTION ABOLISHING DROIT D'AUBAINE AND TAXES ON EMI-
GRATION.
Concluded January 21, 1845; ratification advised by the Senate,
with amendment, March 15, 1845; ratified by the President
March 18, 1845; ratifications exchanged November 4, 1845; pro-
claimed August 16, 1846. (Treaties and Conventions, 1889, p.
45.)
U. S. Treaties 1904, p. 57; 9 Stats, at Large, Treaties, 9.
ARTICLES.
I. Taxes abolished.
II. Disposal of real property.
IH. Disposal of personal property.
IV. Protecting property of absent
heirs.
V. Disputes as to inheritances.
VI. Emigration from Bavaria not
affected.
VII. Ratification.
1853.
EXTRADITION CONVENTION.1
Concluded September 12, 1853; ratification advised by the Senate
with an amendment July 12, 1854; ratified by the President
July 24, 1854; ratifications exchanged at London November 1,
1854; proclaimed November 18, 1854. (Treaties and Conven-
tions, 1889, p. 47.)
U. S. Treaties J904, p. 59; 10 Stats, at Large, Treaties, 174.
1 See In re Thomas, 12 Blatchf. 370, Fed. Gas. No. 13,887.
APPENDIX II.
617
ARTICLES.
I. Extraditable crimes; proceed- IV. Persons committing crimes in
ings. country where found.
II. Accession of other German V. Duration.
States. VI. Ratification.
III. Persons not to be delivered.
1868.
NATURALIZATION TREATY.
Concluded May 26, 1868; ratification advised ~by the Senate June
29, 1868; ratified by the President July 17, 1868; ratifications
exchanged September 18, 1868; proclaimed October 5, 1868.
(Treaties and Conventions, 1889, p. 49.)
U. S. Treaties 1904, p. 61; 15 Stats, at Large, 661.
ARTICLES.
I. Necessary requirements.
II. Liability for prior offenses.
[I. Former convention continued.
IV. Resumption of former citizen-
ship.
V. Duration.
VI. Ratification.
BELGIUM.
1845.
TREATY OF COMMERCE AND NAVIGATION.
Concluded November 10, 1845; ratification advised by the Senate
March 26, 1846; ratified by the President March 30, 1846; rati-
fications exchanged March 30, 1846 ; proclaimed March 31,
1846. (Treaties and Conventions, 1889, p. 52.)
IT. S. Treaties 1904, p. 64; 8 Stats, at Large, 606.
This treaty contained twenty articles, and was terminated Au-
gust 20, 1858, by notice given by the Belgian Government.
618 APPENDIX II.
1858.
TREATY OF COMMERCE AND NAVIGATION.
Concluded July 17, 1858; ratification advised by the Senate March
8, 1859; ratified by the President April 13, 1859; ratifications
exchanged April 16, 1859; proclaimed April 19, 1859. (Treat-
ies and Conventions, 1889, p. 56.)
U. S. Treaties 1904, p. 64; 12 Stats, at Large, 1043.
This treaty contained eighteen articles, and was terminated July
1, 1875, by notice given by the Belgian Government.
1863.
CONVENTION RELATIVE TO IMPORT DUTIES AND CAPITALIZATION OF
SCHELDT DUES.
Concluded May 20, 1863; ratification advised by the Senate Febru-
ary 26, 1864; ratified by the President March 5} 1864; ratifi-
cations exchanged June 24, 1864; proclaimed November 18,
1864. (Treaties and Conventions, 1889, p. 60.) ,
U. S. Treaties 1904, p. 64; 13 Stats, at Large, 655.
This convention contained five articles, and those which were not
transitory have been superseded by the Treaty of 1875.
. 1863.
CONVENTION FOR THE EXTINGUISHMENT OF THE SCHELDT DUES.
Concluded July 20, 1863; ratification advised by the Senate Febru-
ary 26, 1864; ratified by the President March 5, 1864; ratifi-
catimis exchanged June 24, 1864; proclaimed November 18,
1864. (Treaties and Conventions, 1889, p. 62.)
U. S. Treaties 1904, p. 65; 13 Stats, at Large, 655.
AETICLES.
I. Scheldt dues extinguished. V. Execution.
II. Declaration by King of Belgium. VI. Application.
III. Tonnage and other dues. VII. Eatification.
IV. Payment by the United States.
APPENDIX II. 619
1868.
NATURALIZATION CONVENTION.
Concluded November 16, 1868; ratification advised by the Senate
April 12, 1869; ratified by the President April 18, 1869; ratifi-
cations exchanged July 10, 1869; proclaimed July 30, 1869.
(Treaties and Conventions, 1889, p. 66.)
U. S. Treaties 1904, p. 68; 16 Stats, at Large, 66.
AETICLES.
I. Eecognition of naturalization. IV. Eesumption of former citizen-
II. Liability for prior offenses. ship.
III. Exemption from military ser- V. Duration.
vice. VI. Eatification.
1868.
CONSULAR CONVENTION.
Concluded December 5, 1868; ratification advised by the Senate
April 12, 1869; ratified by the President April 18, 1869; rati-
fications exchanged July 8, 1869 ; proclaimed March 7, 1870.
(Treaties and Conventions, 1889, p. 68.)
U. S. Treaties 1904, p. 70; 16 Stats, at Large, 757.
This treaty, which contained sixteen articles, was terminated
January 1, 1880, on notice given by the Belgian Government.
Federal case: In re Wilrlenhus, 28 Fed. 924.
1868.
TRADEMARK CONVENTION.
Concluded December 20, 1868; ratification advised by the Senate
April 12, 1869; ratified by the President April 18, 1869; rati-
fications exchanged June 19, 1869; proclaimed July 30, 1869,
(Treaties and Conventions, 1889, p. 72.)
U. S. Treaties 1904, p. 70; 16 Stats, at Large, 765.
This was an 'additional article to the treaty of 1858, and termin-
ated with it July 1, 1875.
620
APPENDIX II.
1874.
EXTRADITION CONVENTION.
Concluded March 19, 1874; ratifications advised by the Senate
March 27, 1874; ratified by the President March 31, 1874; rati-
fications exchanged April 30, 1874; proclaimed May 1, 1874.
(Treaties and Conventions, 1889, p. 73.)
U. S. Treaties 1904, p. 70; 18 Stats, at Large, Treaties, 120.
This treaty contained eight articles, and was terminated Novem-
ber 18, 1882, on the exchange of ratifications of the Treaty of 1882.
Federal cases: Ex parte Van Ho- 501, Fed. Gas. No. 13,563; In re
ven, 4 Dill. 411, Fed. Gas. No. Vandervelpen, 14 Blatchf. 137, Fed.
16,858; In re Stupp, 12 Blatchf. Cas. No. 16,844.
1875.
TREATY OF COMMERCE AND NAVIGATION.
Concluded March 8, 1875 ; ratification advised by the Senate March
10, 1875; ratified by the President March 16, 1875; ratifications
exchanged June 11, 1875; proclaimed June 29, 1875. (Treaties
and Conventions, 1889, p. 76.)
U. S. Treaties 1904, p. 71; 19 Stats, at Large, Treaties, 72.
ARTICLES.
I. Freedom of commerce and nav-
igation.
II. Duties payable by Belgian ves-
sels.
III. Duties payable by United States
vessels.
IV. Coasting trade.
V. Import trade.
VI. Export duties.
VII. Premiums, drawbacks, etc.
VIII. Fisheries excluded.
IX. Nationality of vessels.
X. Cargoes for other countries.
XI. Warehousing.
XII. Most favored nation privi-
leges.
XIII. Shipwrecks.
XIV. Transit duty.
XV. Trademarks.
XVI. Duration.
XVII. Ratification.
APPENDIX II.
621
1880.
CONSULAR CONVENTION.
Concluded March 9, 1880; ratification advised by the Senate with
amendments June 15, 1880; ratified by the President June 25,
1880 ; time for exchange of ratifications extended by the Senate
January 5, 1881; ratifications exchanged February 25, 1881;
proclaimed March 1, 1881. (Treaties and Conventions, 1889,
p. 80.)
U. S. Treaties 1904, p. 75; 21 Stats, at Large, 776.
AETICLES.
I. Officers authorized. IX.
II. Privileges.
III. Exemptions. X.
IV. Testimony by consular officers. XI.
V. Arms and flags. XII.
VI. Inviolability of consulates. XIII.
VII. Acting officers. XIV.
VIII. Vice-consuls and consular XV.
agents. XVI.
Applications to local authori-
ties.
Performance of notarial acts.
Authority as to shipping.
Deserters from ships.
Settlement of damages at sea.
Shipwreck proceedings.
Estates of deceased persons.
Duration; ratification.
1882.
EXTRADITION CONVENTION.
Concluded June 13, 1882; ratification advised by the Senate August
8, 1882; ratified by the President November 16, 1882; ratifica-
tions exchanged November 18, 1882; proclaimed November 20,
1882. (Treaties and Conventions, 1889, p. 85.)
U. S. Treaties 1904, p. 80; 22 Stats, at Large, 972.
This treaty contained eleven articles and was terminated June
14. 1902, on the exchange of ratifications of the treaty of 1901.
1884.
TRADEMARK CONVENTION.
Concluded April 7, 1884; ratification advised by the Senate June
12, 1884; ratified by the President July 7, 1884; ratifications
exchanged July 7, 1884; proclaimed July 9, 1884. (Treaties
and Conventions, 1889, p. 88.)
U. S. Treaties 1904, p. 80; 23 Stats, at Large, 766.
622
APPENDIX II.
I. Mutual protection.
II. Eequirements.
ARTICLES.
III. Duration; ratification.
1901.
EXTRADITION CONVENTION.
Concluded October 26, 1901; ratification advised by Senate Janu-
ary 30, 1902; ratified by President June 13, 1902; ratifications
exchanged June 14, 1902; proclaimed June 14, 1902.
U. S. Treaties 1904, p. 82; 32 Stats, at Large, 1894.
I. Delivery of accused.
II. Extraditable crimes.
III. Offenses for which to be tried;
third countries.
IV. Political offenses.
V. Nondelivery of citizens.
V.I. Deferring extradition.
ARTICLES.
VII. Procedure.
VIII. Expenses.
IX. Limitations.
X. Articles in possession of ac-
cused.
XI. Ratification; duration.
BOLIVIA.
1858.
TREATY OF PEACE, FRIENDSHIP, COMMERCE, AND NAVIGATION.
Concluded May 13, 1858; ratification advised with amendments by
the Senate June 26, 1860; amendments proposed by Constituent
Assembly of Bolivia consented to by the Senate and time for
exchange of ratifications extended February 3, 1862; ratified
by the President February 17, 1862; ratifications exchanged
November 9, 1862; proclaimed January 8, 1863. (Treaties and
Conventions, 1889, p. 90.)
U. S. Treaties 1904, p. 87; 12 Stats, at Large, 1003.
APPENDIX II.
623
ARTICLES.
I. Mutual amity. XXI.
II. Most favored nation clause. XXII.
111. Freedom of trade; coasting
trade; travel. XXIII.
• IV. Tonnage charges. XXIV.
V. Nationality of Bolivian XXV.
ships.
VI. Import and export duties. XXVI.
VII. Liberty to trade.
VIII. Steam vessels in Bolivia. XXVII.
IX. Asylum of ports, etc.
X. Assistance to shipwrecks. XXVIII.
XI. Captures by pirates.
XII. Property of decedents. XXIX.
XIII. Protection to citizens. XXX.
XIV. Religious freedom.
XV. Freedom of navigation. XXXI.
XVI. Neutral rights; free ships,
free goods. XXXII.
XVII. Contraband of war. XXXIII.
XVIII. Commerce permitted in XXXIV.
case of war. XXXV.
XIX. Delivery of contraband ar-
ticles. XXXVI.
XX. Blockade.
Visitation and search.
Proof of nationality in
case of war.
Vessels under convoy.
Adjudication of prizes.
Letters of marque forbid-
den.
Navigation of the Amazon
and La Plata.
Tributaries of the Amazon
and La Plata.
Rights of citizens in case
of war.
Confiscation forbidden.
Privileges to diplomatic
and consular officers.
Consular officers author-
ized.
Exequaturs.
Consular exemptions.
Deserters from ships.
Agreement for consular
convention.
Duration; effect, etc., of
treaty; ratification.
1900.
EXTRADITION CONVENTION.
\Concluded April 21, 1900; ratification advised by Senate December
18, 1900; ratified by President August 2, 1901; ratifications ex-
changed December 23, 1901; proclaimed December 30, 1901.
U. S. Treaties 1904, p. 99; 32 Stats, at Large, 1857.
ARTICLES.
I. Delivery of accused.
II. Extraditable crimes.
III. Procedure.
IV. Provisional detention.
V. Nondelivery of citizens.
VI. Political offenses.
VII. Limitations.
VIII. Prior offenses.
IX. Property seized with fugitive.
X. Persons claimed by other
countries.
XI. Expenses.
XII. Ratification; duration.
624 APPENDIX II.
BORNEO.
1850.
CONVENTION OF AMITY, COMMERCE,, AND NAVIGATION.
Concluded June 23, 1850; ratification advised and time for exchange
of ratifications extended by the Senate June 23, 1852; ratified
by the President January 31, 1853; ratifications exchanged
July 11, 1853; proclaimed July 12, 1854. (Treaties and Con-
ventions, 1889, p. 102.)
TJ. S. Treaties 1904, p. 103; 10 Stats, at Large, 89.
AETICLES.
I. Amity. VI. No expert duty on products of
II. Liberty of commerce. Borneo.
III. Protection to United States VII. Supplies for American ships
citizens. of war.
IV. Freedom of imports and ex- VIII. Shipwrecks.
ports. IX. Extraterritoriality in Borneo;
V. Tonnage on American ships; ratification,
exemptions.
BRAZIL.
1828.
CONVENTION OF AMITY, COMMERCE, AND NAVIGATION.
Concluded December 12, 1828; ratification advised by the Senate
March 10, 1829; ratified by the President March 10, 1829; rati-
fications exchanged March 18, 1829; proclaimed March 18, 1829,
(Treaties and Conventions, 1889, p. 105.)
U. S. Treaties 1904, p. 106; 8 Stats, at Large, 390.
By a notice given from the Emperor of Brazil this treaty, "only
for articles relating to commerce and navigation," was terminated
December 12, 1841.
APPENDIX H.
625
I. Amity.
II. Favored nation clause.
III. Freedom of commerce and
navigation ; coasting
trade.
IV. No discrimination on ves-
sels.
V. Import and export duties.
VI. Freedom of trade.
VII. Embargoes.
VIII. Asylum in ports.
IX. Captures by pirates.
X. Shipwrecks.
XL Disposal of property.
XII. Special protection.
XIII. Religious freedom.
XIV. Eights of neutrals.
XV. Neutral property under
enemies' flag.
XVI. Contraband of war.
XVII. Trade with nonblockaded
AETICLES.
XVIII. Seizure of contraband arti-
cles.
XIX. Blockades.
XX. Visitation and search.
XXI. Ship's papers in case of
war.
XXII. Vessels under convoy.
XXIII. Prize courts.
XXIV. Letters of marque forbid-
den.
XXV. Protection in case of war.
XXVI. Confiscation forbidden.
XXVII. Diplomatic officers.
XXVIII. Consular officers.
XXIX. Exequaturs.
XXX. Consular exemptions.
XXXI. Deserters from ships.
XXXII. Consular convention.
XXXIII. Duration; effect, etc.; rati-
fication.
ports.
1849.
CONVENTION FOR SATISFACTION OF CLAIMS OF CITIZENS OF THE
UNITED STATES ON BRAZIL.
Concluded January 27, 1849; ratification advised by the Senate
January 14, 1849; ratified by the President January 18, 1850 ;
ratifications exchanged January 18, 1850; proclaimed January
19, 1850. (Treaties and Conventions, 1889, p. 115.)
U. S. Treaties 1904, p. 116; 9 Stats, at Large, Treaties, 157.
By this convention of six articles, 530,000 milreis were paid by
Brazil in satisfaction of claims made by United States citizens, and
the amount was distributed by the United States.
1878.
DIPLOMATIC AGREEMENT CONCERNING TRADEMARKS.
Concluded September 24, 1878; ratification advised by the Senate
January 20, 1879; ratified by the President February 5, 1879;
proclaimed June 17, 1879. (Treaties and Conventions, 1889.
p. 118.)
U. S. Treaties 1904, p. 116; 21 Stats, at Large, 659.
Treaties — 4 0
626 APPENDIX II.
1898.
EXTRADITION CONVENTION AND PROTOCOL.
Concluded, respectively, May 14, 1897, and May 28, 1898; ratifica-
tion advised by Senate February 28, 1899; ratified by Presi-
dent February 13, 1903; ratifications exchanged April 18,
1903; proclaimed April 30, 1903.
U. S. Treaties 1904, p. 117; 33 Stats, at Large, pt. 2, p. 2091.
AETICLES.
I. Delivery of the accused.
II. Extraditable crimes.
III. Political offenses.
IV. Offense for which tried; third
government.
V. Nondelivery of citizens.
VI. Extradition deferred.
VII. Person claimed by other coun- i
tries.
VIII. Limitations.
IX. Property seized with fugitive.
X. Procedure.
XI. Provisional detention.
XII. Expenses.
XIII. Batification; duration.
BREMEN.
(See GERMAN EMPIRE.)
The Free Hanseatic City of Bremen (now incorporated in the
German Empire), September 6, 1853, acceded to the extradition
convention between the United States and Prussia of June 16, 1852,
(Treaties and Conventions, 1889, p. 118.)
U. S. Treaties 1904, p. 123.
BRUNSWICK AND LuNEBURG.
(See GERMAN EMPIRE.)
1854.
CONVENTION RESPECTING THE DISPOSITION OF PROPERTY.
Concluded August 21, 1854; ratification advised by the Senate with
amendment March 3, 1855; ratified by the President July 10,
1855; ratifications exchanged July 28, 1855; proclaimed July
30, 1855. (Treaties and Conventions, 1889, p. 119.)
U. S. Treaties 1904, p. 123; 11 Stats, at Large, 601.
APPENDIX II. 627
AKTICLES.
I. Disposition of personal prop- TIT. Duration; ratification.
erty.
II. Disposition of real estate.
CENTRAL AMERICA.
1825.
CONVENTION OF PEACE, AMITY, COMMERCE AND NAVIGATION.
Concluded December 5, 1825 ; ratification advised by the Senate
December 29, 1825; ratified by the President January 16, 1826;
ratifications exchanged August 2, 1826 ; proclaimed October 28,
1826. (Treaties and Conventions, 1889, p. 121.)
U. S. Treaties 1904, p. 125; 8 Stats, at Large, 322.
This treaty, consisting of thirty-three articles, terminated as to
irticles relating to commerce and navigation, August 2, 1838, by
leir own limitations, and the entire treaty was abrogated by the
lissolution of the Republic in 1839.
CHILE.
1832.
CONVENTION OF PEACE, AMITY, COMMERCE AND NAVIGATION.
Concluded May 16, 1832 ; ratification advised by the Senate Decem-
ber 19, 1832; ratified by the President April 26, 1834; ratifica-
tions exchanged April 29, 1834; proclaimed April 29, 1834.
(Treaties and Conventions, 1889, p. 131.)
U. S. Treaties 1904, p. 126; 8 Stats, at Large, 434.
This treaty, containing thirty-one articles relating to commerce
and navigation, consular and diplomatic privileges, etc., remained
in force until January 20, 1850, when it was terminated on notice
given by the Chilean government.
Federal case: United States v. Trumbull, 48 Fed. 94.
628 APPENDIX n.
1833.
CONVENTION ADDITIONAL TO THE GENERAL TREATY OF 1832.
Concluded September 1, 1833; ratification advised ~by the Senate
April 24, 1834; ratified by the President April 26, 1834; ratifi-
cations exchanged April 29, 1834; proclaimed April 29, 1834.
(Treaties and Conventions, 1889, p. 140.)
U. S. Treaties 1904, p. 126; 8 Stats, at Large, 456.
This convention of four articles extended the time for the ex-
change of ratifications of the convention of 1832, and was explana-
tory of certain articles. It was terminated January 20, 1850, on
notice given by the Chilean government.
1858.
CONVENTION FOR ARBITRATION OF MACEDONIAN CLAIMS.
Concluded November 10, 1858; ratification advised by the Senate
March 8, 1859; ratified by the President August 4, 1859; rati-
fications exchanged October 15, 1859; proclaimed December 22,
1859. (Treaties and Conventions, 1889, p. 142.
U. S. Treaties 1904, p. 126; 12 Stats, at Large, 1083.
The claims of the owners of the property referred to in the treaty
were submitted to the arbitration of the King of Belgium, who,
on May 15, 1863, rendered an award in favor of the United States,
allowing $42,400 with interest.
1892.
CLAIMS CONVENTION.
Concluded August 7, 1892; ratification advised by the Senate De-
cember 8, 1892; ratified by the President December 16, 1892;
ratifications exchanged January 26, 1893; proclaimed January
28, 1893.
U. S. Treaties 1904, p. 127; 27 Stats, at Large, 965.
This treaty of twelve articles provided for the submission of the
claims of the United States citizens against Chile and of Chilean
citizens against the United States to a commission. The commis-
APPENDIX II.
629
sion met in Washington, D. C., October 9, 1893, and held their
final session April 9, 1894, awarding $240,564.35 to the United
States for its citizens.
1897.
CLAIMS CONVENTION.
Concluded May 24, 1897 ; ratification advised by the Senate Feb-
ruary 28, 1899; ratified by President March 1, 1899; ratifica-
tions exchanged March 12, 1900 ; proclaimed March 12, 1900.
U. S. Treaties 1904, p. 127; 31 Stats, at Large, 1868.
This treaty, containing two articles, revived the claims convention
of August 7, 1892.
1900.
EXTRADITION TREATY.
Concluded April 17, 1900; ratification advised by Senate December
18, 1900; ratified by President May 24, 1900; ratifications ex-
changed May 27, 1902; proclaimed May 27, 1902.
U. S. Treaties 1904, p. 128; 32 Stats, at Large, vol. 2, p. 1850.
I. Delivery of accused.
II. Extraditable crimes.
III. Procedure.
IV. Provisional detention.
V. Nondelivery of citizens.
VI. Political offenses.
VII. Limitations.
AETICLES.
VIII. Prior offenses.
IX. Property seized with fugitive.
X. Persons claimed by other
countries.
XI. Expenses.
XII. Eatification; duration.
CHINA.
[NOTE. — The treaty as to commercial relations, concluded October
1903, Article XVII, provides: "It is agreed .... that all
the provisions of the several treaties between the United States
and China which were in force on the 1st day of January, 1900,
are continued in full force and effect, except in so far as they
are modified by the present treaty or other treaties to which the
United States is a party. ff]
630
APPENDIX IT.
1844.
TREATY OF PEACE, AMITY, AND COMMERCE.
Concluded July 3, 1844; ratification advised l>y the Senate January
16, 1845; ratified by the President January 17, 1845 ; ratifica-
tions exchanged December 31, 1845; proclaimed April 18, 1846.
(Treaties and Conventions, 1889, p. 145.)
IT. S. Treaties* 1904, pp. 132, 133, 134; 8 Stats, at Large, 592.
As the Treaty of 1858 was negotiated as a substitute, the refer-
ences are given to the corresponding articles in the later treaty,
and the articles not referred to therein are printed in the treaty
volumes.
AETICLES.
I. Peace and amity. (See
Art. I, p. 135.)
II. Import and export duties.
(See Treaty of November
8, 1858, p. 145.)
III. Open ports. (See Art.
XIV, p. 139.)
IV. Consular officers. (See
Art. X, p. 138.)
V. Commerce. (See Art. XV,
p. 140. )
VI. Tonnage duties. (See Art.
XVI, p. 140.)
VII. Passenger and cargo boats.
VHI. Pilots, etc. (See Art.
XII, p. 140.)
IX. Custom-house officers. (See
Art. XVIII, p. 140.)
X. Vessels arriving in China.
(See Art. XIX, p. 141.)
XI. Ascertainment of duties.
(See Art. XX, p. 142.)
XII. Standard weights and
measures.
XIII. Payment of duties. (See
Art. XXII, p. 142.)
XIV. Transshipment of goods.
(See Art. XXIII, p. 143.)
XV. Liberty to trade.
XVI. Collection of debts. (See
Art. XXIV, p. 143.)
XVII. Privileges of open ports.
(See Art. XII, p. 138.)
XVIII. Chinese teachers, etc. (See
Art. XXV, p. 143.)
XIX. Protection to United
States citizens. (See Art.
XI, p. 138.)
XX. Ee-exportation. (See Art.
XXI, p. 142.)
XXI. Punishment for crimes.
(See Art. XI, p. 138.)
XXII. Trade with China in case
of war. (See Art. XXVI,
p. 143.)
XXIII. Eeports by consuls.
XXIV. Communications with offi-
cials. (See Art. XXVIII,
p. 144.)
XXV. Eights of United States
citizens. (See Art.
XXVII, p. 144.)
XXVI. Merchant vessels in Chi-
nese waters. (See Art.
XIII, p. 139.)
XXVII. Shipwrecks, etc. (See Art.
XIII, p. 139.)
XXVIII. Embargo.
XXIX. Control over seamen. (See
Art. XVIII, p. 140.)
XXX. Official correspondence.
(See Art. VII, p. 137.)
XXXI. Communications. (See Art.
VIII, p. 137.)
XXXII. Naval vessels in Chinese
waters. (See Art. IX, p.
137.)
XXXILT. Clandestine trade. (See
Art. XIV, p. 139.)
XXXIV. Duration; ratification.
APPENDIX II.
631
1858.
TREATY OF PEACE,, AMITY, AND COMMERCE.1
Concluded June 18, 1858; ratification advised ~by the Senate Decem-
ber 15, 1858; ratified by the President December 21, 1858; rati-
fications exchanged August 16, 1859 ; proclaimed January 26,
1860. (Treaties and Conventions, 1889, p. 159.)
U. S. Treaties 1904, p. 135; 12 Stats, at Large, 1023.
AETICLES.
I. Declaration of amity. XVI.
II. Deposit of treaty. XVII.
III. Promulgation. XVIII.
IV. Diplomatic privileges. XIX.
V. Visit of minister to capi- XX.
tal. XXI.
VI. Residence of Minister at the XXII.
capital. XXIII.
VII. Correspondence. XXIV.
VIII. Personal interviews. XXV.
IX. Naval vessels in Chinese XXVI.
waters.
X. Consuls authorized. XXVII.
XI. United States citizens in
China. • XXVIII.
XII. Privileges in open ports.
XIII. Shipwrecks; pirates. XXIX.
XIV. Open ports; clandestine XXX.
trade prohibited.
XV. Commerce permitted; tar-
iff.
Tonnage duties.
Pilots, etc.
Control of ships, etc.
Ships' papers, etc.
Customs examinations.
Ee-exportation.
Payment of duties.
Transshipment of goods.
Collection of debts.
Chinese teacher, etc.
Trade with China in case
of war.
Eights of United States
citizens.
Communications with of-
ficers.
Freedom of religion.
Most favored nation priv-
ileges to United States
citizens; ratification.
1858.
TREATY ESTABLISHING TRADE REGULATIONS AND TARIFF.
Concluded November 8, 1858; ratification advised by the Senate
March 1, 1859; ratified by the President March 3, 1859; ratifi-
cations exchanged August 15, 1859. (Treaties and Conven-
tions, 1889, p. 169.)
U. S. Treaties 1904, p. 145; 12 Stats, at Large, 1069.
'See Treaty of July 28, 1868, and Treaty of October 8, 1903.
632
APPENDIX II.
1858.
CLAIMS CONVENTION.
Concluded November 8, 1858; ratification advised by the Senate
March I, 1859; ratified by the President March 3, 1859; rati-
fications exchanged August 15, 1859. (Treaties and Conven-
tions, 1889, p. 178.)
U. S. Treaties 1904, p. 155; 12 Stats, at Large, 1081.
The arrangement made at Tien-Tsin, and called a convention by
the preamble to this convention, was made through the medium of
correspondence, and the supplemental convention of November 8,
1858, was entered into to carry it into effect. Under this conven-
tion $735,238.97 was paid to the United States minister to China,
and a commission appointed to decide upon the claims. The com-
mission awarded claimants $489,187.95, and the Chinese govern-
ment refusing to receive the surplus it was finally transmitted to
the United States and invested in government bonds. From this
fund there was paid out by the Secretary of State for claims against
China $281,319.64, and on April 24, 1885, the balance, amounting
to $453,400.90, was returned to the Chinese minister at Washington.
1868.
TREATY OF TRADE, CONSULS AND EMIGRATION.1
Concluded July 28, 1868; ratification advised by the Senate with
amendments July 24, 1868; amendments incorporated in the
treaty July 28, 1868; ratified by the President October 19,
1868; ratifications exchanged November 23, 1869; proclaimed
February 5, 1870. (Treaties and Conventions, 1889, p. 179.)
IT. S. Treaties 1904, p. 155; 16 Stats, at Large, 739.
1 See Treaty of June 18, 1858, and
Treaty of October 8, 1903. See, also,
Chae Chan Ping v. United States,
130 TJ. S. 581, 9 Sup. Ct. Eep. 623,
32 L. ed. 1068; Ex parte Lau Ow
Bew, 141 U. S. 583, 12 Sup. Ct. Kep.
43, 35 L. ed. 868; Lau Ow Bew v.
United States, 144 U. S. 47, 12 Sup.
Ct. Eep. 517, 36 L. ed. 340; Fong
Goie Ting v. United States, 149 U.
S. 698, 13 Sup. Ct. Eep. 1016, 37
L. ed. 905; In re Ah Fong, 3 Saw.
144, Fed. Gas. No. 102; Chapman v.
Toy Long, 4 Saw. 28, Fed. Gas. No.
2610; Baker v. Portland, 5 Saw. 566,
Fed. Cas. No. 777; In re Wong Yung
Quy, 6 Saw. 237, 47 Fed. 717; In
re Ah Chong, 6 Saw. 451, 2 Fed.
733; In re Parrott, 6 Saw. 349, 1
Fed. 481; United States v. Douglas,
17 Fed. 634.
APPENDIX II.
633
AETICLES.
I. Jurisdiction over land in
China.
II. Eegulation of commerce.
III. Chinese consuls.
IV. Eeligious freedom.
V. Voluntary emigration.
VI. Privileges of travel and resi-
dence.
VII. Education.
VIII. Internal improvements in
China.
1880.
IMMIGRATION TREATY.1
Concluded November 17, 1880; ratification advised by the Senate
May 5, 1881; ratified by the President May 9, 1881; ratifica-
tions exchanged July 19, 1881; proclaimed October 5, 1881.
(Treaties and Conventions, 1889, p. 182.)
U. S. Treaties 1904, p. 159; 22 Stats, at Large, 739.
AETICLES.
I. Suspension of Chinese immigra- III. Protection of Chinese in the
tion. United States.
II. Eights of Chinese in the United IV. Notification of legislation; rati-
States. fication.
1 See Treaty of 1894. See, also,
"ederal cases Chew Heong v. United
States, 112; U. S. 536, 5 Sup.
. Eep. 255, 28 L. ed. 770; Tick Wo
Hopkins, 118 U. S. 356, 6 Sup. Ct.
;p. 1064, 30 L. ed. 220; Baldwin
T. Franks, 120 U. S. 678, 7 Sup. Ct.
Eep. 656, 763, 30 L. ed. 766; United
States v. Jung Ah Lung, 124 U.
S. 621, 8 Sup. Ct. Eep. 663, 31 L. ed.
591; Chae Chan Ping v. United
States, 130 U. S. 581, 9 Sup. Ct.
tep. 623, 32 L. ed. 1068; Wan
Jhing v. United States, 140 U.
424, 11 Sup. Ct. Eep. 729, 35 L.
I. 503; Ex parte Lau Ow Bew, 141
I. S. 583, 12 Sup. Ct. Eep. 43, 35 L.
ed. 868; Lau Ow Bew v. United
States, 144 U. S. 47, 12 Sup. Ct. Eep.
517, 36 L. ed. 340; Fong Yue Ting
v. United States, 149 U. S. 698, 13
Sup. Ct. Eep. 1016, 37 L. ed. 905;
In re Ah Kee, 22 Blatchf. 520, 22
Fed. 519; In re Ah Lung, 9 Saw.
306, 18 Fed. 28; In re Leong Tick
Dew, 10 Saw. 38, 19 Fed. 490; In
re Ah Quan, 10 Saw. 222, 21 Fed.
182; In re Shong Toon, 10 Saw. 268,
21 Fed. 386; In re Ah Moy, 10 Saw.
345, 21 Fed. 785; In re Chew Heong,
10 Saw. 361, 21 Fed. 791; In re
Quong Woo, 7 Saw. 526, 13 Fed. 229;
Case of Chinese Merchant, 7 Saw.
546, 13 Fed. 605; In re Moncan, 8
Saw. 350, 14 Fed. 44; In re Ho King,
8 Saw. 438, 14 Fed. 724; United
States v. Douglass, 17 Fed. 634; In
re Chin Ah On, 9 Saw. 343, 18 Fed.
506; In re Pong Ah Chee, 18 Fed.
527; In re Tung Yeong, 9 Saw. 620,
19 Fed. 184; Case of Chinese Wife,
21 Fed. 785; Case of Chinese La-
borer, 21 Fed. 791; In re Ah Ping,
23 Fed. 329; In re Chae Chan Ping,
13 Saw. 486, 36 Fed. 431; In re
Chung Toy Ho, 42 Fed. 398, 9 L. E.
A. 204; United States v. Ah Fawn,
57 Fed. 591; United States v. Yong
Yew, 83 Fed. 832.
634 APPENDIX II.
1880.
TREATY AS TO COMMERCIAL INTERCOURSE AND JUDICIAL PROCEDURE.
Concluded November 17, 1880; ratification advised by the Senate
May, 5, 1881; ratified by the President May 9, 1881; ratifica-
tions exchanged July 19, 1881; proclaimed October 5, 1881.
(Treaties and Conventions, 1889, p. 184.)
U. S. Treaties 1904, p. 161; 22 Stats, at Large, 828.
ARTICLES.
I. Commercial relations. III. Equality of duties.
II. Importation of opium forbidden. IV. Trials of actions in China.
1894.
CONVENTION REGULATING CHINESE IMMIGRATION.1
Concluded March 17, 1894; ratification advised by the Senate Au-
gust 13, 1894; ratified by the President August 22, 1894; rati-
fications exchanged December 7, 1894; proclaimed December
8, 1894
U. S. Treaties 1904, p. 163; 28 Stats, at Large, 1210.
(This treaty was denounced by China, to take effect December 7,
1904.)
AETICLES.
I. Immigration of Chinese labor- IV. Protection of Chinese in the
ers prohibited for ten years. United States.
II. Kegulations for return to the V. Kegistration of citizens in
United States. China.
III. Classes of Chinese not affected. VI. Duration.
1903.
TREATY AS TO COMMERCIAL RELATIONS.
Concluded October 8, 1903; ratification advised by Senate Decem-
ber 18, 1903; ratified by President January 12, 1904; ratifica-
tions exchanged January 13, 1904; proclaimed January 13,
1904.
U. S. Treaties 1904, p. 166; 33 Stats, at Large, 2208.
'See United States v. Lee Yen Tai, 113 Fed. 465, 51 C. C. A. 299;
In re Lee Gon Yung, 111 Fed. 998.
APPENDIX II.
635
ARTICLES.
I. Diplomatic privileges.
II. Consular privileges.
III. Citizens in China.
IV. Abolition of liTcin.
V. Tariff duties.
VI. Establishment of warehouses
by United States citizens.
VII. Mining regulations.
VIII. Drawback certificates.
IX. Trademarks.
X. Patents.
XI. Copyrights.
XII. Navigation of inland waters,
and making Mukden and
Antung open ports.
[II. Uniform coinage.
XIV. Religious liberty and conces-
sion to missionary societies.
XV. Reformation of judicial sys-
tem; extraterritorial rights.
XVI. Morphia and instruments for
its injection.
XVII. Existing treaties continued in
force; duration; revision of
annexed tariff; and ratifica-
tion.
ANNEXES.
I. Opium and salt.
II. Native customs offices.
III. Tariff schedule.
Note change of Rule II.
COLOMBIA.
The Republic of Colombia, established in 1819, was divided in
[ovember, 1831, into three independent republics, New Grenada,
renezuela, and Ecuador. In 1862 its name was changed to the
United States of Colombia, and in 1886 the states were abolished and
the country became the Republic of Colombia. The treaties with
New Grenada are given in chronological order with those of Co-
lombia.
1824.
TREATY OF AMITY, COMMERCE, AND NAVIGATION.
Concluded October 3, 1824; ratification advised by the Senate March
3, 1825; ratified by the President March 7 , 1825; ratifications
exchanged May 27, 1825; proclaimed May 31, 1825. (Treaties
and Conventions, 1889, p. 186.)
IT. S. Treaties 1904, p. 194; 8 Stats, at Large, 306.
This treaty of thirty-one articles expired by its own limitation
October 3, 1836.
636
APPENDIX II.
(NEW GRANADA.)
1846.
TREATY OF PEACE, AMITY, NAVIGATION, AND COMMERCE.
Concluded December 12, 1846 ; ratification advised by the Senate
June 3, 1848; ratified ~by the President June 10, 1848; ratifica-
tions exchanged June 10, 1848; proclaimed June 12, 1848.
(Treaties and Conventions, 1889, p. 195.)
IT. S. Treaties 1904, p. 194; 9 Stats, at Large, Treaties, 79.
ABTICLES.
I. Amity.
II. Most favored nation clause.
III. Commerce and navigation.
IV. Mutual privileges of ship-
ping.
V. Customs duties.
VI. Declaration of reciprocal
treatment.
VII. Freedom of trade.
VIII. Embargo.
IX. Asylum to vessels.
X. Captures by pirates.
XI. Shipwrecks.
XII. Disposal of property.
XIII. Mutual protection.
XIV. Eeligious freedom.
XV. Neutrality; free ships, free
goods.
XVI. Enemy's property.
XVII. Contraband goods.
XVIII. Trade by neutrals.
XIX. Confiscation of contra-
band.
XX. Blockade.
XXI. Visitation and search.
XXII. Proof of nationality of
vessels.
XXIII. Vessels under convoy.
XXIV. Prize cases.
XXV. Conduct of hostilities.
XXVI. Letters of marque.
XXVII. Protection in case of war.
XXVIII. Confiscation prohibited.
XXIX. Diplomatic privileges.
XXX. Consular officers.
XXXI. Consular rights. '
XXXII. Consular exemptions.
XXXIII. Deserters from ships.
XXXIV. Agreement for consular
convention.
XXXV. Isthmus of Panama; dura-
tion; violations.
XXXVT. Eatification.
Additional article. Acceptance of
nationality of vessels.
1850.
CONSULAR CONVENTION.
Concluded May 4, 1850; ratification advised by the Senate Septem-
ber 24, 1850; ratified by the President November 14, 1850;
ratifications exchanged October 30, 1851; proclaimed Decem-
ber 5, 1851. (Treaties and Conventions, 1889, p. 206.)
U. S. Treaties 1904, p. 206; 10 Stats, at Large, Treaties, 80.
APPENDIX II. 637
AKTICLES.
I. Officers authorized. VI. Legal status of consuls.
II. Exequaturs. VII. Passports.
III. Functions. VIII. Eatification.
IV. Good offices. IX. Duration.
V. Prerogatives, exemptions, etc.
1857.
CLAIMS CONVENTION.
Concluded September 10, 1857 ; ratification advised by the Senate
with amendments March 8, 1859; ratified by the President
March 12, 1859; time for exchange of ratifications extended by
the Senate May 8, 1860; ratifications exchanged November 5,
1860; proclaimed November 8, 1860. (Treaties and Conven-
tions, 1889, p. 210.)
IT. S. Treaties 1904, p. 211; 12 Stats, at Large, 985.
The commission under this treaty met at Washington June 10,
L861, and adjourned March 9, 1862. Amount of awards
6,235.47. Not having completed all the cases presented to them
the following treaty was concluded, extending the commission.
(COLOMBIA.)
1864.
CLAIMS CONVENTION.
Concluded February 10, 1864; ratification advised by the Senate
June 10, 1864; ratified by the President July 9, 1864; time for
exchange of ratifications extended by the Senate June 25, 1864;
ratifications exchanged August 19, 1865; proclaimed August
19, 1865. (Treaties and Conventions, 1889, p. 213.)
U. S. Treaties 1904, p. 211; 13 Stats, at Large, 685.
Under this convention a new commission was organized, which met
at Washington August 4, 1865, and adjourned May 19, 1866. The
awards amounted to $88,267.68.
638
APPENDIX II.
1888.
EXTRADITION CONVENTION.
Concluded May 7, 1888; ratification advised by the Senate with
amendments March 26, 1889; ratification with amendments
proposed by Colombia advised by the Senate February 27,
1890; ratified by the President March 12, 1890; ratifications
exchanged November 12, 1890; proclaimed February 6, 1891.
U. S. Treaties 1904, p. 211; 26 Stats, at Large, 1534.
AETICLES.
I. Eeciprocal delivery of accus-
ed.
II. Extraditable crimes.
III. Proceedings.
IV. Persons under arrest.
V. Political offenses.
VI. Eequisitions and surrender.
VII. Temporary, detention.
VIII. Evidence required.
IX. Delivery of foreigners.
X. Persons not to be delivered.
XL Persons under obligations.
XII. Expenses.
XIII. Duration; ratification.
COSTA RICA.
1851.
TREATY OF FRIENDSHIP, COMMERCE AND NAVIGATION.
Concluded July 10, 1851; ratification advised by the Senate March
11, 1852; ratified by the President May 25, 1852; ratifications
exchanged May 26, 1852; proclaimed May 26, 1852. (Treaties
and Conventions, 1889, p. 222.) .
U. S. Treaties 1904, p. 215; 10 Stats, at Large, Treaties, 18
AKTICLES.
I. Amity. VIII.
II. Freedom of commerce and IX.
navigation.
III. Most favored nation privi- X.
leges.
IV. No discrimination in duties. XL
V. Tonnage duties. XII.
VI. No discrimination on vessels. XIII.
VII. Equal trade privileges. XIV.
Equal treatment of citizens.
Exemption from military ser-
vice, etc.
Consular and diplomatic privi-
leges.
Eights in case of war.
Property rights.
.Duration.
Eatification.
APPENDIX II. 639
1860.
CLAIMS CONVENTION.
Concluded July 2, 1860; ratification advised ~by the Senate January
16, 1861; ratified by the President November 7, 1861; time
for exchange of ratifications extended by the Senate March
12, 1861; ratifications exchanged November 9, 1861; pro-
claimed November 11, 1861. (Treaties and Conventions, 1889,
p. 227.)
U. S. Treaties 1904, p. 220; 12 Stats, at Large, 1135.
This convention of nine articles provided for a commission of
three, who met at Washington February 8, 1862, and adjourned
November 6, 1862. The amount awarded against Costa Rica was
$25,704.14.
1900.
PROTOCOL FOR THE CONSTRUCTION OF AN INTEROCEANIC CANAL.
Concluded December 1, 1900.
IT. S. Treaties 1904, p. 220.
It is agreed between the two governments that when the President
of the United States is authorized by law to acquire control of such
portion of the territory now belonging to Costa Rica as may be de-
sirable and necessary on which to construct and protect a canal of
depth and capacity sufficient for the passage of vessels of the great-
est tonnage and draft now in use, from a point near San Juan del
Norte on the Caribbean Sea, via Lake Nicaragua to Brito on the
Pacific Ocean, they mutually engage to enter into negotiations
with each other to settle the plan and the agreements, in detail,
found necessary to accomplish the construction and to provide for
ie ownership and control of the proposed canal.
As preliminary to such future negotiations it is forthwith agreed
that the course of said canal and the terminals thereof shall be the
same that were stated in a treaty signed by the plenipotentiaries of
the United States and Great Britain on February 5, 1900, and now
pending in the Senate of the United States for confirmation, and
that the provisions of the same shall be adhered to by the United
States and Costa Rica.
640 APPENDIX II.
In witness whereof, the undersigned have signed this protocol
and have hereunto affixed their seals.
Done in duplicate at Washington this first day of December,
1900.
JOHN HAY. [Seal.]
J. B. CALVO. [Seal]
CUBA.
1902.
COMMERCIAL CONVENTION.1
Concluded December 11, 1902; ratification advised ~by Senate March
19, 1903; ratified by President March 30, 1903; ratifications
exchanged March 31, 1903; proclaimed December 17, 1903.
IT. S. Treaties 1904, p. 221; 33 Stats, at Large, 2136.
AETICLES.
I. Articles on free list. V. Eegulations to protect reve-
II. Articles of Cuba admitted at nue.
reduction of twenty per VI. Tobacco,
cent. VII. Similar articles.
III. Articles of United States ad- VIII. Eates of duty to continue
mitted at reduction of preferential,
twenty per cent. IX. National or local taxes.
IV. Articles of United States ad- X. Changes of tariff; revision of
mitted at reductions of treaty,
twenty-five, thirty, and XI. Eatification; duration,
forty per cent, respectively.
1903.
SUPPLEMENTARY COMMERCIAL CONVENTION.
Concluded January 26, 1903; ratification advised by the Senate
February 16, 1903; ratified by the President March 30, 1903;
ratifications exchanged March 31, 1903; proclaimed Decem-
ber 17, 1903.
U. S. Treaties 1904, p. 225; 33 Stats, at Large, 2145.
1 Congress by an act approved December 17, 1903, gave its approval to
this convention.
APPENDIX II.
641
This treaty contains one article, extending for two months from
January 31, 1903, ratification of commercial treaty of December
11, 1902.
1903.
AGREEMENT FOR THE LEASE TO THE UNITED STATES OF LANDS IN
CUBA FOB COALING AND NAVAL STATIONS.
Signed by the President of Cuba February 16, 1903, and by the
President of the United States February 23, 1903.
U. S. Treaties 1904, p. 225.
I. Lease of land.
H. Waters.
ARTICLES.
III. Jurisdiction.
1903.
EMBODYING THE PROVISIONS DEFINING THE FUTURE RELATIONS OF
THE UNITED STATES WITH CUBA CONTAINED IN THE ACT OF
CONGRESS, APPROVED MARCH 2, 1901, MAKING APPROPRIATION
FOR THE ARMY.
Signed May 22, 1902; ratifications advised by the Senate, March 22,
1904; ratified by the President, June 25, 1904; ratified by
Cuba June 20, 1904; ratificatimis exchanged at Washington
July 1, 1904; proclaimed July 2, 1904.
33 Stats, at Large, pt. 2, p. 2248.
ARTICLES.
I. Treaty rights of Cuba with
other powers.
II. Contraction of debts limited.
III. United States granted right
to intervene, etc.
IV. Validation of military acts.
V. Extension of sanitary plans of
cities.
VI. Title to Island of Pines.
VII. Naval stations for the United
States.
VIII. Ratification.
1904.
SUPPLEMENTARY CONVENTION EXTENDING TIME FOR RATIFICATION
• OF TREATY OF MAY 22, 1903.
33 Stats, at Large, pt. 2, p. 2261.
Treaties— 41
642 APPENDIX II.
1904.
EXTRADITION.
Signed at Washington April 6, 1904; ratification advised by the
Senate April 26, 1904; ratified by the President January 24,
1905; ratified by Cuba, January 16, 1905; ratifications ex-
changed at Washington January 31, 1905; proclaimed Feb-
ruary 8, 1905.
33 Stats, at Large, pt. 2, p. 2265.
AETICLES.
I. Reciprocal delivery of persons VII. No delivery if trial barred by
charged with crime. limitations.
II. Extraditable crimes. VIII. Trials to be only for offenses
III. Requisitions. for Which extradited.
IV. Application for provisional ar- IX. Disposal of articles seized
rest. with person.
V. Neither country bound to de- X. Persons claimed by other
liver up its own citizens. countries.
VI. No surrender for political of- XI. Expenses,
fenses. XII. Effect.
1904.
PROTOCOL TO EXTRADITION TREATY AMENDING SPANISH TEXT.
Signed at Washington, December 6, 1904; ratification advised by the
Senate December 15, 1904; ratified by the President January
24, 1905; ratified by Cuba, January 16, 1905; ratifications
exchanged at Washington January 31, 1905; proclaimed Feb-
ruary 8, 1905.
33 Stats, at Large, pt. 2, p. 2273.
1903.
LEASE TO THE UNITED STATES BY CUBA OF LAND AND WATER FOR
NAVAL OR COALING STATIONS IN GUANTANAMO AND BAHIA
HONDA.
Signed July 2, 1903; approved by the President October 2, 1903;
ratified by the President of Cuba August 17, 1903 ; ratifications
exchanged October 6, 1903.
U. S. Treaties 1904, p. 227.
APPENDIX II.
643
AETICLES.
I. Kental; acquirement of land; IV. Fugitives.
payment. V. Duties, etc.
II. Survey. VI. Jurisdiction.
HI. Occupation. VII. Ratification.
DENMARK.
1826.
CONVENTION OF FRIENDSHIP, COMMERCE AND NAVIGATION.1
Concluded April 26, 1826; ratification advised by the Senate May 4,
1826; ratified by the President May 6, 1826; ratifications ex-
changed August 10, 1826; proclaimed October 14, 1826.
(Treaties and Conventions, 1889, p. 231.)
U. S. Treaties 1904, p. 229; 8 Stats, at Large, 340.
(This convention was abrogated by notice April 15, 1856, and
renewed by the convention of April 11, 1857, except Article V.)
•AETICLES.
I. Most favored nation clause.
II. Freedom of trade.
III. Equality as to shipping.
IV. Import and export duties.
V. Sound and belts dues.
VI. Trade with Danish colonies.
VII. Property rights.
VIII. Consular officers.
IX. Consular privileges.
X. Consular exemptions.
XI. Duration.
XII. Eatification.
1830.
CLAIMS CONVENTION.
Concluded March 28, 1830; ratification advised by the Senate May
29, 1830; ratified by the President June 2, 1830; ratifications
exchanged June 5, 1830; proclaimed June 5, 1830. (Treaties
and Conventions, 1889, p. 235.)
U. S. Treaties 1904, p. 233; 8 Stats, at Large, 402.
By this convention Denmark renounced the claims of its subjects
against the United States and agreed to pay an indemnity of
JSee Bartram v. Eobertson, 122
F. S. 116, 7 Sup. Ct. Eep. 1115, 30
L. ed. 1118; Thingvalla Line v.
Cnited States, 24 Ct. of 01. 255.
644 APPENDIX II.
$650,000 for claims of United States citizens. The commission pro-
vided for met in Washington April 4, 1831, and held its last ses-
sion March 23, 1833.
1857.
CONVENTION DISCONTINUING THE SOUND DUES.
Concluded April 11, 1857 ; ratifications advised Toy the Senate Jan-
uary 5, 1858; ratified by the President January 7, 1858; rati-
fications exchanged January 12, 1858; proclaimed January
13, 1858. (Treaties and Conventions, 1889, p. 238.)
U. S. Treaties 1904, p. 234; 11 Stats, at Large, 719.
AETICLES.
I. Sound and belts dues abolish- IV. Most favored nation privi-
ed. leges.
II. Lights, buoys and pilots. V. Convention of 1826 revived.
III. Payment by the United States. VI. Effect.
VII. Katification.
1861.
CONSULAR CONVENTION.
Concluded July 11, 1861; ratification advised by the Senate July
17, 1861; ratified ~by the President August 25, 1861; ratifica-
tions exchanged September 18, 1861; proclaimed September
20, 1861. (Treaties and Conventions, 1889, p. 240.)
U. S. Treaties 1904, p. 236; 13 Stats, at Large, 605.
(This convention consisted of two additional articles to the gen-
eral convention of commerce and navigation, 1826, renewed April
11, 1857, extending the powers of consuls.)
AETICLES.
I. Authority of consuls over ship- It. Deserters from ships; ratifica-
ping disputes. tion.
APPENDIX II. 645
1872.
NATURALIZATION CONVENTION.
Concluded July 20, 1872; ratification advised ~by the Senate Jan-
uary 13, 1873; ratified by the President January 22, 1873;
ratifications exchanged March 14, 1873; proclaimed April 15,
1873. (Treaties and Conventions, 1889, p. 241.)
U. S. Treaties 1904, p. 238; 17 Stats, at Large, 941.
AETICLES.
T. Naturalization recognized. IV. Duration.
II. Eeadmission to former status. V. Ratification.
III. Renunciation of acquired status.
1886.
AGREEMENT FOR MUTUAL EXEMPTION OF VESSELS FROM READMEAS-
UREMENT,.
Signed at Washington, February 26, 1886.
U. S. Treaties 1904, p. 240.
I
| AGREEMENT SUBMITTING CLAIM OF CARLOS BUTTERFIELD & Co. TO
ARBITRATION.
Concluded December 6, 1888; ratification advised by the Senate
February 11, 1889; ratified by the President April 23, 1889:
ratifications exchanged May 23, 1889; proclaimed May 24, 1889.
U. S. Treaties 1904, p. 240; 26 Stats, at Large, 1490.
By this agreement the claim of Butterfield & Co. for indemnity
for seizure of vessels by the Danish Colonial authorities of St.
Thomas, West Indies, was referred to Sir Edmund Monson, by
whom it was disallowed.
1892.
TRADEMARK CONVENTION.
Concluded June 15, 1892; ratification advised by the Senate July
21, 1892; ratified by the President July 29, 1892; ratifications
exchanged September 28, 1892; proclaimed October 12, 1892.
U. S. Treaties 1904, p. 241; 27 Stats, at Large, 963.
646 APPENDIX II.
ABTICLES.
I. Eeciprocal rights. III. Duration.
II. Formalities. IV. Eatification.
1902.
EXTRADITION TREATY.
Concluded January 6, 1902; ratification advised by Senate Jan-
uary 30, 1902; ratified by President February 26, 1902; ratifica-
tions exchanged April 16, 1902; proclaimed April 17, 1902.
U. S. Treaties 1904, p. 242; 32 Stats, at Large, 1906.
AETICLES.
I. Delivery of accused. VIII. Prior offenses.
II. Extraditable crimes. IX. Property seized with fugitive.
III. Procedure. X. Persons claimed by other
IV. Provisional detention. countries.
V. Nondelivery of citizens. XL Expenses.
VI. Political offenses. XII. Eatification; duration.
VII. Limitations.
1905.
EXTRADITION — SUPPLEMENTARY TREATY BETWEEN THE UNITED
STATES AND DENMARK FOR THE EXTRADITION OF CRIMINALS.
Signed at Washington, November 6, 1905; ratification advised by
the Senate, December 7, 1905; ratified by the President, Feb-
ruary 13, 1906; ratified by Denmark, December 14, 1905; rati-
fications exchanged at Washington, February 19, 1906; pro-
claimed February 19, 1906.
Treaties and Proclamations, 2887; 34 Stats, at Large, part 3.
AETICLES.
I. Extradition provisions extended II. Additional extraditable crime.
to island possession and colo- III. Exchange of ratifications,
nies.
APPENDIX II. 647
DOMINICAN REPUBLIC.
1867.
CONVENTION OF AMITY, COMMERCE AND NAVIGATION, AND EXTRADI-
TION.
Concluded February 8, 1867; ratification advised by the Senate
March 20, 1867; ratified by the President July 31, 1867; rati-
fications exchanged October 5, 1867; proclaimed October 24,
1867. (Treaties and Conventions, 1889, p. 244.)
U. S. Treaties 1904, p. 246; 15 Stats, at Large, 473.
This convention of thirty-two articles terminated January 13,
1898, by notice from the Dominican government.
ECUADOR.
1839.
TREATY OF PEACE, FRIENDSHIP, NAVIGATION AND COMMERCE.
Concluded June 13, 1839; ratification advised by the Senate July
15, 1840; ratified by the President July 31, 1840; ratifications
exchanged April 9, 1842; proclaimed September 23, 1842.
(Treaties and Conventions, 1889, p. 255.)
U. S. Treaties 1904, p. 247; 8 Stats, at Large, 534.
This treaty of thirty-five articles was abrogated August 25, 1892,
by notice from the Ecuadorian government.
1862.
CLAIMS CONVENTION.
Concluded November 25, 1862; ratification advised by the Senate
January 28, 1863; ratified by the President February 13, 1863;
ratifications exchanged July 27, 1864; proclaimed September
8, 1864. (Treaties and Conventions, 1889, p. 265.)
U. S. Treaties 1904, p. 247 ; 13 Stats, at Large, 631.
648 APPENDIX II.
Under this convention of seven articles the commission of two
members and an arbitrator met at Guyaquil, August 22, 1864, and
terminated its session August 17, 1865. The amount awarded
against Ecuador was $94,799.56.
1872.
NATURALIZATION CONVENTION.
Concluded May 6, 1872; ratification advised by the Senate May
23, 1872; ratified by the President May 25, 1872; ratifications
exchanged November 6, 1873; proclaimed November 24, 1873.
(Treaties and Conventions, 1889, p. 267.)
U. S. Treaties 1904, p. 247; 18 Stats, at Large, Treaties, 69.
This convention of seven articles was abrogated August 25, 1892.
upon notice given by the Ecuadorian government.
1872.
EXTRADITION CONVENTION.
Concluded June 28, 1872; ratification advised by the Senate Jan-
uary 6, 1873; ratified by the President January 10, 1873; rati-
fications exchanged November 12, 1873; proclaimed December
24, 1873. (Treaties and Conventions, 1889, p. 269. )
U. S. Treaties 1904, p. 248; 18 Stats, at Large, Treaties, 72.
AETICLES.
I. Persons to be delivered. V. Procedure.
II. Extraditable crimes. VI. Expenses.
III. Political offenses, etc. VII. Duration; ratification.
IV. Persons under arrest in country
where found.
1894.
CONVENTION FOR ARBITRATION OF CLAIM OF JULIO R. SANTOS.
Concluded February 28, 1893; proclaimed November 7, 1894.
28 Stats, at Large, 1205.
APPENDIX II. 649
EGYPT.
1884.
COMMERCIAL AGREEMENT.
Concluded November 16, 1884; ratification advised by the Senate
March 18, 1885; ratified by the President May 7, 1885; pro-
claimed May 7, 1885. (Treaties and Conventions, 1889, p.
272.)
U. S. Treaties 1904, p. 251; 24 Stats, at Large, 1004.
ETHIOPIA.
1903.
TREATY TO REGULATE COMMERCIAL RELATIONS.
Signed December 27, 1903; ratification advised by the Senate
March 12, 1904; ratified by the President March 17, 1904:
proclaimed September 30, 1904.
IT. S. Treaties 1904, p. 956; 33 Stats, at Large, 2254.
ARTICLES.
I. Freedom to travel and transact IV. Use of means of transporta-
business. tion.
II. Security of persons and prop- V. Representatives of govern-
erty. ments.
III. Customs duties, imposts, juris- VI. Duration.
diction. VII. Ratification.
650
APPENDIX II.
FRANCE.
1778.
TREATY OF AMITY AND COMMERCE.1
Concluded at Pans February 6, 1778; ratified by Congress May 4,
1778. (Treaties and Conventions, 1889, p. 296.)
U. S. Treaties 1904, p. 255; 8 Stats, at Large, 12.
This treaty, abrogated by the act of Congress July 7, 1798, con-
sisted of thirty-one articles, and in many important respects formed
the basis of subsequent treaties of commerce.
1778.
TREATY OF ALLIANCE.
Concluded at Paris February 6, 1778; ratified by Congress May 4,
1778. (Treaties and Conventions, 1889, p. 307.)
U. S. Treaties 1904, p. 255; 8 Stats, at Large, 6.
This treaty, consisting of twelve articles, provided for an alliance
to carry on the war with Great Britain, for the sovereignty of the
lands to be acquired as the result of the war, and the guaranty of
1 See Foster v. Neilson, 2 Pet. 253,
7 L. ed. 415; Soulard v. United
States, 4 Pet. 511, 7 L. ed. 938; De-
lasus v. United States, 9 Pet. 117,
9 L. ed. 71; New Orleans v. De
Armas, 9 Pet. 224, 9 L. ed. 109;
Smith v. United States, 10 Pet. 326,
9 L. ed. 442; New Orleans v. United
States, 10 Pet. 662, 9 L. ed. 573;
Strother v. Lucas, 12 Pet. 410, 9 L.
ed. 1137;' Garcia v. Lee, 12 Pet.
511, 9 L. ed. 1176; Keene v. Whit-
aker, 14 Pet. 170, 10 L. ed. 404;
Chouteau v. Eckhart, 2 How. 344,
11 L. ed. 293; Pollard v. Hagan,
3 How. 212, 11 L. ed. 565; McDon-
ogh v. Millaudon, 3 How. 693, 11
L. ed. 787; United States v. King,
3 How. 773, 11 L. ed. 824; United
States v. Eeynes, 9 How. 127, 13 L.
ed. 74; Davis v. Police Jury of Con-
cordia, 9 How. 280, 13 L. ed. 138;
United States v. D'Auterive, 10
How. 609, 13 L. ed. 560; United
States v. Philadelphia and New Or-
leans, 11 How. 609, 13 L. ed. 834;
United States v. Turner, 11 How.
663, 13 L. ed. 857; United States
v. Lynde's Heirs, 11 Wall. 632, 20
L. ed. 230; Slidell v. Grandjean, 111
U. S. 412, 4 Sup. Ct. Eep. 475, 28 L.
ed. 321; Bryan v. Kennett, 113
U. S. 179, 5 Sup. Ct. Eep. 407, 28
L. ed. 908; Josephs v. United States,
1 Ct. of Cl. 197, 2 Ct. of Cl. 586;
Gray v. United States, 21 Ct. of Cl.
340; "The Ship Tom," 29 Ct. of
Cl. 68; Iowa v. Eood, 187 U. S. 87,
23 Sup. Ct. Eep. 49, 47 L. ed. 86.
APPENDIX II. 651
the French possessions in America and the dominions of the United
States.
An additional article was agreed to at the same time reserving to
the King of Spain the right to participate in the two treaties. This
additional article was also ratified by Congress May 4, 1778.
By an act of Congress approved July 7, 1798, the treaties with
France then in force were abrogated.
1782.
CONTRACT FOR THE REPAYMENT OF LOANS MADE BY THE KING OF
FRANCE.
Concluded July 16, 1782; ratified by Congress January 22, 1783,
(Treaties and Conventions, 1889, p. 310.)
U. S. Treaties 1904, p. 255; 8 Stats, at Large, 614.
Under this contract the United States pledged itself to pay in
twelve equal annual installments of 1,500,000 livres each the amount
of the indebtedness to the King of France, which was 18,000,000
livres. It was also agreed to pay the loan obtained from Holland
of 10,000,000 livres in ten annual payments.
1783.
CONTRACT FOR A NEW LOAN AND THE REPAYMENT OF THE OLD LOANS
MADE BY THE KING OF FRANCE.
Concluded February 25, 1783; ratified by Congress October 31, 1783
(Treaties and Conventions, 1889, p. 314.)
U. S. Treaties 1904, p. 256; 17 Stats, at Large, 797.
By this agreement 6,000,000 livres were to be loaned the United
States from the royal treasury in the course of the year, and to be
repaid in six annual installments beginning in 1797. It was also
agreed that the payments under the contract of 1782 should com-
mence in 1787.
652 APPENDIX II.
1788.
CONSULAR CONVENTION.
Concluded November 14, 1788; ratification advised by the Senate
July 29, 1789; ratified by the President September 9, 1789;
ratifications exchanged January 6, 1790 (dated January 1,
1790). (Treaties and Conventions, 1889, p. 316.)
IT. S. Treaties 1904, p. 256; 8 Stats, at Large, 106.
This convention of sixteen articles was abrogated by the act of
July 7, 1798.
1800.
TREATY OF PEACE, COMMERCE, AND NAVIGATION.
Concluded September 30, 1800; ratification advised by the Senate
with amendments February 3, 1801; ratified by the President
February 18, 1801; ratified by the first consul of France on
condition of acceptance of amendments proposed by him July
31, 1801; ratifications exchanged July 31, 1801; proclaimed
December 21, 1801. (Treaties and Conventions, 1889, p. 322.)
U. S. Treaties 1904, p. 256; 8 Stats, at Large, 178.
This treaty consisted of twenty-seven articles and expired by
its own limitations July 31, 1809.
See United States v. The Peggy, of Cl. 340; Cushing v. United States,
1 Cranch, 103, 2 L. ed. 49; Cherac 22 Ct. of Cl. 1; Hooper v. United
v. Cherac, 2 Wheat. 259, 4 L. ed. States, 22 Ct. of Cl. 408; "The
234; De Geofroy v. Biggs, 133 U. S. Schooner Jane," 23 Ct. of Cl. 226;
258, 10 Sup. Ct. Eep. 295, 33 L. ed. "The Ship Tom," 29 Ct. of Cl. 68.
642; Gray v. United States, 21 Ct.
1803.
TREATY FOR THE CESSION OF LOUISIANA.
Concluded April 30, 1803 ; ratification advised by the Senate Octo-
ber 20, 1803; ratified by the President October 21, 1803; rati-
fications exchanged October 21, 1803 ; proclaimed October 21,
1803. (Treaties and Conventions, 1889, p. 331.)
U. S. Treaties 1904, p. 257; 8 Stats, at Large, 200.
(This treaty, although executed, is mentioned on account of its
historical value in defining the extent pf the cession.)
APPENDIX It
653
AETICLES.
I. Cession of the colony of Louisi- VII. Privileges to French and
ana.
II. Extent of cession.
III. Citizenship to inhabitants.
IV. Transfer of territory.
V. Assumption of possession.
VI. Treaties with Indians.
See Foster v. Neilson, 2 Pet. 253,
7 L. ed. 415; Soulard v. United
States, 4 Pet. 511, 7 L. ed. 938;
Smith v. United States, 10 Pet. 326,
9 L. ed. 442; New Orleans v. United
States, 10 Pet. 662, 9 L. ed. 573;
Strother v. Lucas, 12 Pet. 410, 9 L.
ed. 1137; Garcia v. Leo, 12 Pet.
511, 9 L. ed. 1176; Keene v. Whit-
aker, 14 Pet. 470, 10 L. ed. 404;
Chouteau v. Eckhart, 2 How. 344,
11 L. ed. 293; Pollard v. Hagan, 3
How. 212, 11 L. ed. 565; McDonogh
v. Millaudon, 3 How. 693, 11 L. ed.
787; United States v. King, 3 How.
773, 11 L. ed. 824; United States
v. Eeynes, 9 How. 127, 13 L. ed.
74; Davis v. Police Jury of Con-
cordia, 9 How. 280, 13 L. ed. 138;
Spanish ships.
VIII. Most favored nation clause.
XI. Approval of other conven-
tions.
X. Eatification.
United States v. D'Auterive, 10
How. 609, 13 L. ed. 560; United
States v. Philadelphia and New Or-
leans, 11 How. 609, 13 L. ed. 834;
United States v. Turner, 11 How.
663, 13 L. ed. 857; United States v.
Lynde's Heirs, 11 Wall. 632, 20 L.
ed. 230; Slidell v. Granjean, 111
U. S. 412, 4 Sup. Ct. Eep. 475,
28 L. ed. 321; Bryan v. Ken-
nett, 113 U. S. 179, 5 Sup. Ct. Eep.
407, 28 L. ed. .908; Josephs v.
United States, 1 Ct. of Cl. 197, 2
Ct. of Cl. 586; Gray v. United
States, 21 Ct. of Cl. 340; "The
Ship Tom," 29 Ct. of Cl. 68; Iowa
v. Eood, 187 U. S. 87, 23 Sup. Ct.
Eep. 49, 47 L. ed. 86.
1803.
CONVENTION FOB THE PAYMENT OF THE PURCHASE OF LOUISIANA.
Concluded April 30, 1803 ; ratification advised ~b'y the Senate Octo-
ber 20, 1803; ratified ~by the President October 21, 1803; ratifi-
cations exchanged October 21, 1803; proclaimed October 21,
1803. (Treaties and Conventions, 1889, p. 334.)
U. S. Treaties 1904, p. 262; 8 Stats, at Large, 206.
Under this convention a stock amounting to $11,250,000 was
created to be paid, with six per cent interest, in annual payments
of not less than $3,000,000, the first payment to commence after
fifteen years from the exchange of ratifications. (See U. S. Stats.,
Vol. 2, p. 245.)
654 APPENDIX II.
1803.
CLAIMS CONVENTION.
Concluded April 30, 1803; ratification advised by the Senate Octo-
ber 20, 1803; ratified by the President October 21, 1803; ratifi-
cations exchanged October 21, 1803 ; proclaimed October 21,
1803. (Treaties and Conventions, 1889, p. 335.)
U. S. Treaties 1904, p. 262; 8 Stats, at Large, 208.
The convention provided for the payment of claims of United
States citizens against France, not to exceed 60,000,000 francs.
The commission organized under the convention held its first meet-
ing July 5, 1803, and adjourned December 1, 1804.
1822.
CONVENTION OF NAVIGATION AND COMMERCE.
Concluded June 24, 1822; ratification advised by the Senate Janu-
ary 31, 1823; ratified by the President February 12, 1823;
ratifications exchanged February 12, 1823; proclaimed Febru-
ary 12, 1823. (Treaties and Conventions, 1889, p. 343.)
U. S. Treaties 1904, p. 263; 8 Stats, at Large, 278
ARTICLES.
I. Extra duties by American ves- VI. Deserters from ships.
sels. VII. Duration; reduction of extra
II. Extra duties by French vessels. duties.
III. Transit and re-exportation. VIII. Ratification.
IV. Ton described. Separate articles. Refund of extra
V. Shipping charges. duties.
1831.
CONVENTION AS TO CLAIMS AND DUTIES ON WINES AND COTTON.
Concluded July 4, 1831; ratification advised by the Senate Janu-
ary 27, 1832; ratified by the President February 2, 1832; rati-
fications exchanged February 2, 1832; proclaimed July 13,
1832. (Treaties and Conventions, 1889, p. 345.)
U. S. Treaties 1904, p. 265; 8 Stats, at Large, 430.
APPENDIX II. 655
By this convention France agreed to pay to the United States
in settlement of all claims of United States citizens 25,000,000
francs, and the United States agreed to pay in settlement of claims
of the French Government and people 1,500,000 francs. Other
claims not included in the provisions of the treaty were to be
brought before the appropriate authorities in either country.
1843.
EXTRADITION CONVENTION.
Concluded November 9, 1843; ratification advised by the Senate
February 1, 1844; ratified by the President February 2, 1844;
ratifications exchanged April 12, 1844; proclaimed April 13,
1844. (Treaties and Conventions, 1899, p. 348.)
U. S. Treaties 1904, p. 266; 8 Stats, at Large, 580.
AKTICLES.
I. Delivery of accused. IV. Expenses.
II. Extraditable crimes. V. Political crimes, etc.
III. Delivery. VI. Duration; ratification.
See In re Metzger, 5 How. 176, 12 L. ed. 104.
1845.
ADDITIONAL ARTICLE TO EXTRADITION CONVENTION.
Concluded February 24, 1845; ratification advised by the Senate
March 12, 1845; ratified by the President May 5, 1845; rati-
fications exchanged June 21, 1845; proclaimed July 24, 1845.
(Treaties and Conventions, 1889, p. 349.)
U. S. Treaties 1904, p. 267; 8 Stats, at Large, 617.
1853.
CONSULAR CONVENTION.
Concluded February 23, 1853; ratification advised by the Senate
with amendments March 29, 1853 ; ratified by the President
April 1, 1853; ratifications exchanged August 11, 1853; pro-
claimed August 12, 1853. (Treaties and Conventions, 1889,
p. 350.)
U. S. Treaties 1904, p. 268; 10 Stats, at Large, Treaties, 114.
656 APPENDIX II.
ARTICLES.
I. Officers recognized; exequaturs. VIII. Settlement of shipping dis-
II. Privileges and immunities. putes.
III. Inviolability of consulates. IX. Deserters from ships.
IV. Complaints to authorities. X. Authority as to shipping.
V. Agencies. XI. Shipwrecks.
VI. Notarial authority. XII. Most favored nation privileges.
VII. Property rights. XIII. Duration; ratification.
See Prevost v. Grenaux, 19 How. 295, 33 L. ed. 642; Bahuaud v. Bize,
1, 15 L. ed. 572; De Geofroy v. 105 Fed. 487.
Riggs, 133 U. S. 258, 10 Sup. Ct. Eep.
1858.
ADDITIONAL ARTICLE TO EXTRADITION CONVENTION.
Concluded February 10, 1858; ratification advised by the Senate,
ivith amendment, June 15, 1858; ratified ~by the President June
28, 1858; ratifications exchanged February 12, 1859; pro-
claimed February 14, 1859. (Treaties and Conventions, 1889,
p. 354.)
U. S. Treaties 1904, p. 273; 11 Stats, at Large, 741.
It is agreed between the High Contracting Parties that the pro-
visions of the treaties for the mutual extradition of criminals be-
tween the United States of America and France, of November 9th,
1843, and February 24th, 1845, and now in force between the two
Governments, shall extend not only to persons charged with the
crimes therein mentioned, but also to persons charged with the
following crimes, whether as principals, accessories or accomplices,
namely, forging or knowingly passing or putting in circulation
counterfeit coin or bank notes or other paper current as money,
with intent to defraud any person or persons — Embezzlement by
any person or persons hired or salaried to the detriment of their
Employers, when these crimes are subject to infamous punishment.
In witness whereof the respective Plenipotentiaries have signed
the present article in triplicate, and have affixed thereto the seal
of their arms.
Done at Washington, the tenth of February, 1858.
LEW CASS. [SEAL.]
SARTIGES. [SEAL.]
APPENDIX II. 657
1869.
TRADEMARK CONVENTION.
Concluded April 16, 1869; ratification advised by the Senate April
19, 1869 ; ratified by the President April 30, 1869 ; ratifications
exchanged July 3, 1869; proclaimed July 6, 1869. (Treaties
and Conventions, 1889, p. 355.)
U. S. Treaties 1904, p. 273; 16 Stats, at Large, 771.
ARTICLES.
I. Protection of trademarks. IU. Duration.
II. Registration. IV. Ratification.
See Lacroix v. Sarrazin, 4 Woods, Francaise" v. Schultz, 57 Fed. 37;
174, 15 Fed. 489; "La Republique In re Balensi, 120 Fed. 864.
1880.
CLAIMS CONVENTION.
Concluded January 15, 1880; ratification advised by the Senate
March 29, 1880; ratified by the President April 3, '1880; ratifi-
cations exchanged June 23, 1880; proclaimed June 25, 1880.
(Treaties and Conventions, 1889, p. 356.)
U. S. Treaties 1904, p. 275; 21 Stats, at Large, 673.
By this convention of twelve articles, claims of United States
citizens against France arising out of the French-Mexican war and
the war with Germany, and claims of French citizens against the
United States arising out of the civil war, were referred to three
commissioners. The commission met in Washington, November 5,
1880, and adjourned March 31, 1884. Awards against the United
States amounted to $625,566.35, and against France to 13,659
francs, 14 centimes.
See Burthe v. Denis, 133 U. S. 514, 10 Sup. Ct. Rep. 335, 33 L. ed. 768.
Treaties — 42
658 APPENDIX II.
1882.
CLAIMS CONVENTION.
Concluded July 19, 1882; ratification advised by the Senate August
8, 1882; ratified by the President December 28, 1882; ratifica-
tions exchanged December 29, 1882; proclaimed December 29,
1882. (Treaties and Conventions, 1889, p. 360.)
U. S. Treaties 1904, p. 275 ; 22 Stats, at Large, 983.
This convention extended the term of the claims commission un-
der the convention of 1880 until July 1, 1883.
1883.
CLAIMS CONVENTION.
Concluded February 8, 1883; ratification advised by the Senate
with an amendment February 21, 1883; ratified by the Presi-
dent April 3, 1883; ratifications exchanged June 25, 1883; pro-
claimed June 25, 1883. (Treaties and Conventions, 1889, p.
361.)
U. S. Treaties 1904, p. 275; 23 Stats, at Large, 728.
The term of the claims commission under the convention of 1880
was further extended by this convention to April 1, 1884.
1898.
EECIPROCAL COMMERCIAL AGREEMENT.
Concluded May 28, 1898; proclaimed May 30, 1898; in effect June
1, 1898.
TJ. S. Treaties 1904, p. 276; 30 Stats, at Large, 1774.
AETICLES.
I. Concessions by France. III. Effect; duration.
II. Concessions by United States.
1902.
AMENDATORY RECIPROCAL COMMERCIAL AGREEMENT WITH FRANCI
Concluded August 20, 1902; proclaimed August 22, 1902.
U. S. Treaties 1904, p. 278.
AETICLES.
I. Algeria; Porto Eico. II. Effect; duration.
APPENDIX II. 659
RELATIONS IN TUNIS.
Signed March 15, 1904; ratification advised by the Senate March
24, 1904; ratified by the President May 6, 1904; ratifications
exchanged May 7, 190 4; proclaimed May 9, 1904.
U. S. Treaties 1904, p. 949.
AKTICLES.
I. Renunciation of treaties with Tu- IT. Ratification,
nis, etc.
GERMAN EMPIRE.
The formation of the German Empire in 1871 by the consolida-
tion of the North German Union, etc., has in some instances abro-
gated the treaties entered into with the independent German gov-
ernments now embraced in the Empire, but reference is here given
to all the separate governments with which treaties have been con-
cluded.
See Baden, Bavaria, Bremen, Brunswick and Liineberg, Han-
over, Hanseatic Republics, Hesse, Mecklenburg-Schwerin, Mecklen-
burg-Strelitz, Nassau, North German Union, Oldenburg, Prussia,
Saxony, Schaumburg-Lippe, Wiirttemberg.
1871.
CONSULAR CONVENTION.
Concluded December 11, 1871; ratification advised by the Senate
January 18, 1872; ratified by the President January 26, 1872;
ratifications exchanged April 29, 1872; proclaimed June 1,
1872. (Treaties and Conventions, 1889, p. 363.)
U. S. Treaties 1904, p. 279; 17 Stats, at Large, 921.
660 APPENDIX II.
AETICLES.
I. Consular offices. XII. Authority over ships.
II. Exequaturs. XIII. Disputes between officers and
III. Privileges and immunities. crews of ships.
IV. Arms and flags. XIV. Deserters from ships.
V. Inviolability of consulates. XV. Damages to vessels at sea.
VT. Temporary vacancies. XVI. Shipwrecks.
VII. Consular agencies. XVII. Trademark protection.
VIII. Communications with authori- XVIII. Duration; ratification.
ties. Protocol. As to meaning of
IX. Notarial authority. ' 'property," and "deceased
X. Property of decedents. citizens."
XI. Effects of deceased sailors and
passengers.
See The Burchard, 42 Fed. 608; Eichter v. Eeynolds, 59 Fed. 577, 8
C. C. A. 220.
1892.
COPYRIGHT AGREEMENT.
Signed January 15, 1892; proclaimed April 15, 1892.
27 Stats, at Large, 1021.
AETICLES. ,
I. American citizens to have copy- H. German subjects to have copy-
right in German Empire. right in the United States.
III. Duration.
1900.
RECIPROCAL COMMERCIAL ARRANGEMENT WITH GERMANY.
Concluded July 10, 1900; proclaimed July 13, 1900.
U. S. Treaties 1904, p. 285; 31 Stats, at Large, 1935. The proclamation of
the President is found in 31 Stats, at Large, 1978.
AETICLES.
I. Concessions by United States. in. Effect; duration.
H. Concessions by Germany.
APPENDIX II. 661
GBEAT BRITAIN.
(UNITED KINGDOM OF GREAT BRITAIN AND IRELAND.)
The treaties leading to the establishment of peace between the
United States and Great Britain, which formed such an important
factor in settling the territory and establishing the Government of
the United States, are referred to, in the treaty volumes although
many of the articles have been abrogated subsequent wars or modi-
fied by later conventions.
1782.
PROVISIONAL, TREATY OF PEACE.
Concluded at Paris, November 30, 1782; proclamation ordered ~by
Congress April 11, 1783. (Treaties and Conventions, 1889, p.
370.)
U. 8. Treaties 1904, p. 287; 8 Stats, at Large, 54.
AETICLES.
I. Independence acknowledged. VII. Withdrawal of British armies.
II. Boundaries. VIII. Navigation of the Mississippi
III. Fishery rights. Eiver.
IV. Eecovery of debts. IX. Restoration of territory.
V. Restitution of estates. Separate article. Boundary of West
VI. Confiscations and prosecutions Florida,
to cease.
1783.
ARMISTICE DECLARING A CESSATION OF HOSTILITIES.
Concluded January 20, 1783.
U. S. Treaties 1904, p. 291; 8 Stats, at Large, 58.
662
APPENDIX II.
1783.
DEFINITIVE TREATY OF PEACE.1
Concluded at Paris September 3, 1783; ratified by Congress Janu-
ary 14, 1784; proclaimed January 14, 1784. (Treaties and
Conventions, 1889, p. 375.)
U. S. Treaties 1904, p. 292; 8 Stats, at Large, 80.
AKTICLES.
I. Independence acknowledged.
II. Boundaries.
III. Fishery rights.
IV. Recovery of debts.
V. Restitution of estates.
VI. Confiscations and prosecutions
to cease.
1 Republica v. Gordon, 1 Dall. 233,
1 L. ed. 115; Georgia v. Brails-
ford, 3 Dall. 1, 1 L. ed. 483; Ware
T. Hylton, 3 Dall. 199, 1 L. ed.
568; Hunter v. Fairfax, 3 Dall. 305,
1 L. ed. 613; Hopkirk v. Bell, 3
Cranch, 454, 2 L. ed. 497, 4 Cranch,
164, 2 L. ed. 583; M'llvaine v.
Coxe's Lessee, 4 Cranch, 209, 2 L.
ed. 598; Higginson v. Mein, 4
Cranch, 415, 2 L. ed. 664; Owings
v. Norwood's Lessee, 5 Cranch, 344,
3 L. ed. 120; Smith v. Maryland, 6
Cranch, 286, 3 L. ed. 225; Fairfax v.
Hunter, 7 Cranch, 603, 3 L. ed. 453;
Martin v. Hunter's Lessee, 1 Wheat.
304, 4 L. ed. 97; Orr v. Hodgson,
4 Wheat. 453, 4 L. ed. 613; Blight's
Lessee v. Rochester, 7 Wheat. 535,
VII. Withdrawal of British armies.
VIII. Navigation of the Mississippi
River.
IX. Restoration of territory.
X. Ratification.
5 L. ed. 516; Society for Propaga-
tion of the Gospel v. New Haven,
8 Wheat. 464, 5 L. ed. 662; Harcourt
v. Gaillard, 12 Wheat. 523, 6 L. ed.
716; Shanks v. Dupont, 3 Pet. 242,
7 L. ed. 666; Carver v. Jackson, 4
Pet. 1, 7 L. ed. 761; United States
v. Repentigny, 5 Wall. 211, 18 L.
ed. 627; Hylton 's Lessee v. Brown,
1 Wash. C. C. 298, 343, Fed. Cas. No.
6981; Gordon's Lessee v.' Kerr, 1
Wash. C. C. 322, Fed. Cas. No. 5611;
Fisher v. Harnden, 1 Paine C. C.
55, Fed. Cas. No. 4819; Jones v.
Walker, 2 Paine C. C. 688, Fed. Cas.
No. 7507; Dunlop v. Alexander, 1
Cranch C. C. 498, 3 Fed. Cas. No.
4166.
APPENDIX II. 663
1794.
TREATY OF AMITY, COMMERCE AND NAVIGATION.1
(JAY TREATY.)
Concluded November 19, 1794; ratification advised by the Senate
with amendment June 24, 1795 ; ratified by the President; rati-
fication exchanged October 28, 1795; proclaimed February 29,
1796. (Treaties and Conventions, 1889, p. 379.)
U. S. Treaties 1904, p. 297; 8 Stats, at Large, 116.
This treaty consisted of twenty-eight articles and an additional
article relating to the West Indian trade. Articles XI to XXVII
expired by their own limitation October 28, 1807, and the entire
treaty terminated by the war declared June 18, 1812. The commis-
sion under Article V made a declaration, October 25, 1798, as to the
true St. Croix River named in the treaty. The commission under
Article VI, to consider claims arising from obstructions of judicial
remedies, met at Philadelphia May 29, 1797, and their meetings
finally suspended July 31, 1799, owing to disagreements. By the
treaty of 1802, $2,664,000 was provided to be paid to Great Britain
in settlement of these claims. The commission under Article VII,
to consider claims arising from illegal captures, met at London Au-
gust 16, 1796, and suspended its sessions July 20, 1799. The meet-
ings were resumed under the treaty of 1802, and the final meeting-
was held February 4, 1804. The awards against the United States
amounted to $143,428.14, and against Great Britain to $11,656,000.
1 See Fitzsiinmons v. Newport Ins. wards, 9 Wheat. 489, 6 L. ed. 142;
Co., 4 Cranch, 185, 2 L. ed. 591; Shanks v. Dupont, 3 Pet. 242, 7 L.
Fairfax v. Hunter, 7 Cranch, 603, ed. 666; Forsyth v. Eeynolds, 15
3 L. ed. 453; Harden v. Fisher, 1 How. 358, 14 L. ed. 729; United
Wheat. 300, 4 L. ed. 96; Jackson States v. Wash, Bee's Adm. Kep.
v. Clarke, 3 Wheat. 1, 4 L. ed. 319; 267; Fisher v. Harnden, 1 Paine C.
Craig v. Eadford, 3 Wheat. 594, 4 C. 55, Fed. Gas. No. 4819; Jackson
L. ed. 467; Orr v. Hodgson, 4 Wheat. v. Porter, 1 Paine C. C. 457, Fed.
453, 4 L. ed. 613; Blight's Lessee Cas. No. 7143; Society for the Prop-
v. Eochester, 7 Wheat. 535, 5 L. ed. agation of the Gospel v. Wheeler, 2
516; Society for the Propagation of Gallison, 105, Fed. Cas. No. 13,156;
the Gospel v. New Haven, 8 Wheat. Gray v. United States, 21 Ct. of Cl.
464, 5 L. ed. 662; Hughes v. Ed- 340.
664 APPENDIX II.
1796.
ARTICLE EXPLANATORY TO ARTICLE III, TREATY OF 1794.
Concluded May 4, 1796 ; ratification advised by the Senate May 9,
1796. (Treaties and Conventions, 1889, p. 395.)
U. S. Treaties 1904, p. 297; 8 Stats, at Large, 130.
This article related to the passage of Indians into the territories
of both nations. The treaty of 1794 terminated by the declaration
of the war of 1812.
1798.
ARTICLE EXPLANATORY TO ARTICLE V, TREATY OP 1794.
Concluded March 15, 1798; ratification advised by the Senate June
5, 1798. (Treaties and Conventions, 1889, p. 396.)
U. S. Treaties 1904, p. 297; 8 Stats, at Large, 131.
This article authorized the commission under Article V of the
treaty of 1794 to designate the source of the St. Croix River. The
declaration was made October 25, 1798.
1802.
CONVENTION FOR PAYMENT OF INDEMNITIES AND SETTLEMENT OF
DEBTS.
Concluded January 8, 1802; ratification advised by the Senate April
26, 1802; ratified by the President April 27, 1802; ratifications
exchanged July 15, 1802; proclaimed April 27, 1802. (Treat-
ies and Conventions, 1889, p. 398.)
U. S. Treaties 1904, p. 298; 8 Stats, at Large, 190.
This convention of five articles provides for the payment to Great
Britain of £600,000 in full for the claims submitted under Article
VI of the treaty of 1794, and for the continuation of the commis-
sion under Article VII, and it was agreed that the awards should
be paid in three annual installments. It was also agreed that cred-
itors of either country should meet with no impediment in the col-
lection of their debts.
APPENDIX II. 665
1814.
TREATY OF PEACE AND AMITY.
(TREATY OF GHENT.)
Concluded at Ghent December 24, 1814; ratification advised by the
Senate February 16, 1815; ratified by the President February
17, 1815 ; ratifications exchanged February 17, 1815 ; pro-
claimed February 18, 1815. (Treaties and Conventions, 1889,
p. 399.)
U. S. Treaties 1904, p. 298; 8 Stats, at Large, 218.
AETICLES.
I. Peace declared; restoration of VII. Boundaries; determination of
territory, archives, etc. northern, from Lake Huron
II. Cessation of hostilities. to Lake of the Woods.
III. Eelease of prisoners. vm Powers of boundary commis-
IV. Boundaries; determination of sions etc
northeastern.
V. Boundaries; determination of IX" Cessation of hostilities with
northern, from St. Croix Eiver
to St. Lawrence Eiver. X. Abolition of slave trade.
VI. Boundaries; determination of xi. Eatification.
northern, from St. Lawrence
Eiver to Lake Superior.
1815.
CONVENTION OF COMMERCE AND NAVIGATION.
Concluded July 3, 1815; ratification advised by the Senate, subject
to exception as to the island of St. Helena, December 19, 1815 ;
ratified by the President December 22, 1815; ratifications ex-
changed December 22, 1815 ; proclaimed December 22, 1815.
(Treaties and Conventions, 1889, p. 410.)
U. S. Treaties 1904, p. 308; 8 Stats, at Large, 228.
This convention was continued in force for ten years by Article
IV, treaty of 1818, p. 312, and indefinitely extended by convention
of August 6, 1827.
666 APPENDIX II.
AETICLES.
I. Freedom of commerce and navi- III. Trade with British East Indies,
gation. etc.
II. Import and export duties; ship- IV. Consuls.
ping; trade with British pos- V. Duration; ratification,
sessions in West Indies and Declaration. Vessels excluded from
North America. island of St. Helena.
1817.
ARRANGEMENT BETWEEN THE UNITED STATES AND GREAT BRITAIN,
BETWEEN RICHARD RUSH, ACTING AS SECRETARY OF THE DE-
PARTMENT OF STATE, AND CHARLES BAGOT, His BRITANNIC
MAJESTY 's ENVOY EXTRAORDINARY, ETC.
Concluded in April, 1817 ; advised and consented to by the Senate
April 16, 1818; proclaimed April 28, 1818.
U. S. Treaties 1904, p. 312; 8 Stats, at Large, 231.
The naval force to be maintained upon the American lakes, by
His Majesty and the Government of the United States, shall hence-
forth be confined to the following vessels on each side ; that is —
On Lake Ontario, to one vessel not exceeding one hundred tons
burden, and armed with one eighteen-pound cannon.
On the upper lakes, to two vessels, not exceeding like burden each,
and armed with like force.
On the waters of Lake Champlain, to one vessel not exceeding like
burden, and armed with like force.
All other armed vessels on these lakes shall be forthwith dis-
mantled, and no other vessels of war shall be there built or armed.
If either party should hereafter be desirous of annulling this stip-
ulation, and should give notice to that effect to the other party, it
shall cease to be binding after the expiration of six months from the
date of such notice.
The naval force so to be limited shall be restricted to such ser-
vices as will, in no respect, interfere with the proper duties of the
armed vessels of the other party.
APPENDIX II. 667
1818.
CONVENTION RESPECTING FISHERIES, BOUNDARY AND THE RESTORA-
TION OF SLAVES.1
Concluded October 20, 1818; ratification advised ~by the Senate Jan-
uary 25, 1819; ratified by the President January 28, 18.19; rati-
fications exchanged January 30, 1819; proclaimed January 30,
1819. (Treaties and Conventions, 1889, p. 415.)
U. S. Treaties 1904, p. 312; 8 Stats, at Large, 248.
AETICLES.
I. Fisheries. IV. Commercial convention extend-
II. Boundary from the Lake of the ed.
Woods to the Stony Moun- V. Claims for restitution of slaves,
tains. VI. Ratification.
III. Country west of the Stony
Mountains.
1822.
CLAIMS CONVENTION.
Concluded July 12, 1822; ratification advised by the Senate Janu-
ary 3, 1823; ratified by the President, January, 1823; ratifica-
tions exchanged January 10, 1823 ; proclaimed January 11,
1823. (Treaties and Conventions, 1889, p. 418.)
U. S. Treaties 1904, p. 315; 8 Stats, at Large, 282.
The Emperor of Russia having decided the United States to be
entitled, under Article I of the Treaty of Ghent, to the restitution
of slaves carried away by the British forces, this convention pro-
vided for a commission to ascertain the average value of the slaves
and to decide upon the claims for indemnity. The commission met
in "Washington August 25, 1823, and having fixed the average value
of the slaves, on September 13, 1824, met to consider the claims.
Being unable to agree, a new convention was negotiated November
13, 1826, and the commission was dissolved March 26, 1827.
1 See McKay v. Campbell, 2 Saw. 118, Fed. Cas. No. 8840.
668 APPENDIX II.
1826.
CONVENTION RELATIVE TO INDEMNITY FOB SLAVES.
Concluded November 13, 1826 ; ratification advised by the Senate
December 26, 1826 ; ratified by the President December 27,
1826; ratifications exchanged February 6, 1827 ; proclaimed
March 19, 1827. (Treaties and Conventions, 1889, p. 424.)
IT. S. Treaties 1904, p. 316; 8 Stats, at Large, 344,
By this convention Great Britain agreed to pay $1,204,960 as in-
demnity for slaves carried away. By act of March 2, 1827 (U. S.
Stats., Vol. 4, p. 219), a commission was authorized to settle the
claims. The first meeting of the commission was held July 10,
1827, and the last August 31, 1828.
1827.
CONVENTION CONTINUING IN FORCE ARTICLE III, TREATY OF 1818.
Concluded August 6, 1827 ; ratification advised by the Senate Feb-
ruary 5, 1828; ratified by the President February 21, 1828;
ratifications exchanged April 2, 1828; proclaimed May 15,
1828. (Treaties and Conventions, 1889, p. 426.)
U. S. Treaties 1904, p. 316; 8 Stats, at Large, 360.
This convention provided for the joint temporary occupancy of
the territory west of the line that had been established to the Rocky
Mountains. The boundary from the Rocky Mountains to the Pacific
Ocean was agreed to by the Treaty of 1846.
1827.
COMMERCIAL CONVENTION.
Concluded August 6, 1827 ; ratification advised by the Senate Jan
uary 9, 1828; ratified by the President January 12, 1828; rati
fications exchanged April 2, 1828; proclaimed May 15, 1828
(Treaties and Conventions, 1889, p. 428.)
U. S. Treaties 1904, p. 316; 8 Stats, at Large, 361.
This convention indefinitely extended in force the Commercia
Convention of July 3, 1815.
APPENDIX II. 669
AETICLES.
I. Commercial convention continued. III. Katification.
II. Duration.
1827.
CONVENTION RELATIVE TO THE NORTHEASTERN BOUNDARY.
Concluded September 29, 1827 ; ratification advised ~by the Senate
January 14, 1828; ratified ~by the President February 12, 1828;
ratifications exchanged April 2, 1828; proclaimed May 15,
1828. (Treaties and Conventions, 1889, p. 429.)
U. S. Treaties 1904, p. 318; 8 Stats, at Large, 362.
The determination of the northeastern boundary by the com-
mission as provided for in Article Y of the Treaty of Ghent not
having been agreed to, it was referred by this convention of eight
articles to the King of the Netherlands, who on January 10, 1831,
submitted an award which was not accepted by the two govern-
ments. The boundary was finally determined by the convention of
August 9, 1842.
1842.
CONVENTION AS TO BOUNDARIES, SUPPRESSION OF SLAVE TRADE, AND
EXTRADITION.1
( WEBSTER- ASHBURTON TREATY.)
Concluded August 9, 1842; ratification advised ~by the Senate Au-
gust 20, 1842; ratified ~by the President August 22, 1842; ratifi-
cations exchanged October 13, 1842; proclaimed November 10,
1842. (Treaties and Conventions, 1889, p. 432.)
U. S. Treaties 1904, p. 318; 8 Stats, at Large, 572.
1 In re Kaine, 14 How. 103, 14 L. Wood. & M. 66, Fed. Cas. 12,734;
ed. 345; United States v. Eauscher, Ex parte Kaine, 3 Blatchf. 1, Fed
119 U. S. 407, 7 Sup. Ct. Eep. 234, Cas. No. 7597; Ex parte Van Aer-
30 L. ed. 425; Bryant v. United nam, 3 Blatchf. 160, Fed. Cas. No.
States, 167 U. S. 104, 17 Sup. 16,824; United States v. Caldwell,
Ct. Eep. 744, 42 L. ed. 941; In 8 Blatchf. 131, Fed. Cas. No. 14,707;
re Kelley, 2 Low. 339, Fed. Cas. In re MacDonnell, 11 Blatchf. 79,
No. 7655; In re Dugan, 2 Low. 367, 170, Fed. Cas. No. 8771; United
Fed. Cas. 4120; Ex parte Eoss, 2 States v. Lawrence, 13 Blatehf. 295,
Bond, 252, Fed. Cas. No. 12,069; The Fed. Cas. No. 15,573; In re Fowler,
British Prisoners (In re Sheazle), 1
670
APPENDIX II.
AETICLES.
I. Northwestern boundary agreed
to.
II. Northern boundary, Lake Huron
to Lake of the Woods.
III. Navigation of St. John Eiver.
IV. Confirmation of prior land
grants.
V. Distribution of "Disputed ter-
ritory fund."
V. Commission to mark northeast-
ern boundary line.
VII. Channels open to both parties.
VIII. Suppression of slave trade.
IX. Eemonstrances with other
powers.
X. Extradition of fugitives from
justice.
XL Duration.
XII. Ratification.
1846.
TREATY ESTABLISHING BOUNDARY WEST OF THE ROCKY MOUNTAINS.1
Concluded June 15, 1846 ; ratification advised by the Senate June
18, 1846; ratified ~by the President June 19, 1846; ratifications
exchanged July 17, 1846 ; proclaimed August 5, 1846. (Treat-
ies and Conventions, 1889, p. 438.)
IT. S. Treaties 1904, p. 324; 9 Stats, at Large, Treaties, 24.
AETICLES.
I. Boundary established; free IV. Property of Puget's Sound Ag-
navigation. ricultural Company.
II. Navigation of Columbia Eiver. V. Ratification.
III. Property rights.
4 Fed. 303, 18 Blatchf. 430; Ex parte
Lane, 6 Fed. 34; United States v.
Watts, 8 Saw. 370, 14 Fed. 130; In
re Wadge, 15 Fed. 864, 16 Fed. 332,
21 Blatchf. 300; In re Tully, 20
Fed. 812; In re Miller, 23 Fed. 32;
In re Kelley, 25 Fed. 268 ; In re Kel-
ly, 26 Fed. 852; Ex parte Hibbs, 26
Fed. 421; In re Ferrelle, 28 Fed.
878; In re McPhun, 30 Fed. 57; In
re Fergus, 30 Fed. 607; In re Herres,
33 Fed. 165; In re Charleston, 34
Fed. 531; In re Eeintz, 39 Fed. 204,
4 L. E. A. 236; In re Cross, 43 Fed.
517; In re Mineau, 45 Fed. 188;
Hall v. Patterson, 45 Fed. 352; In
re Carrier, 57 Fed. 578; In re Ster-
naman, 77 Fed. 595; Sternaman v.
Peck, 80 Fed. 883, 26 C. C. A.
214, 83 Fed. 690, 28 C. C. A. 377;
In re Newman, 79 Fed. 622; In re
Bryant, 80 Fed. 282; In re Orpen,
86 Fed. 760; Wright v. Henkel, 190
U. S. 45, 23 Sup. Ct. Eep. 781, 47 L.
ed. 948; Cohn v. Jones, 100 Fe<
639.
'See McKay v. Campbell, 2 S*
118, Fed. Gas. No. 8840; Town
De Haven, 5 Saw. 146, Fed. Cas. No.
14,113.
APPENDIX II. 671
1850.
CONVENTION AS TO SHIP CANAL CONNECTING ATLANTIC AND PACIFIC
OCEANS.
(CLAYTON-BULWER TREATY.)
Concluded April 19, 1850; ratification advised by the Senate May
22, 1850; ratified ~by the President May 23, 1850; ratifications
exchanged July 4, 1850; proclaimed July 5, 1850. (Treaties
and Conventions, 1889, p. 440.)
U. S. Treaties 1904. p. 327; 9 Stats, at Large, Treaties, 174.
This convention is superseded by the convention concluded No-
vember 18, 1901.
1850.
PROTOCOL OF A CONFERENCE HELD AT THE FOREIGN OFFICE, DECEM-
BER 9, 1850, CEDING HORSESHOE REEF TO THE UNITED 'STATES.
U. S. Treaties 1904, p. 327.
1853.
CLAIMS CONVENTION.1
Concluded February 8, 1853; ratification advised by the Senate
March 15, 1853; ratified by the President March 17, 1853;
ratifications exchanged July 26, 1853; proclaimed August 20,
1853. (Treaties and Conventions, 1869, p. 445.)
U. S. Treaties 1904, p. 328; 10 Stats, at Large, Treaties, 110.
The commission authorized by this convention of seven articles
met at London, September 15, 1853, and adjourned January 15,
1855. The claims considered by the commission were all those
arising since December 24, 1814, and remaining unsettled. The
awards in favor of American claimants amounted to $329,734.16,
and to British claimants $277,102.88.
1 See One Hundred etc. Feet of Pine Lumber, 4 Blatehf. 182, Fed. Gas. No.
10,523.
67'2 APPENDIX II.
1854.
RECIPROCITY TREATY AS TO FISHERIES, DUTIES, AND NAVIGATION,
BRITISH NORTH AMERICAN COLONIES.
Concluded June 5, 1854; ratification advised by the Senate August
2, 1854; ratified by the President August 9, 1854; ratifications
exchanged September 9, 1854; proclaimed September 11, 1854.
(Treaties and Conventions, 1889, p. 448.)
U. S. Treaties 1904, p. 328; 10 Stats, at Large, Treaties, 199.
This treaty, consisting of seven articles, granted mutual liberty of
sea fisheries on the northeastern coast of the United States and the
British North American provinces; it provided for the reciprocal
free admission of certain articles, the produce of the British col-
onies or of the United States, and the right to navigate S. Lawrence
River and the canals connecting the Great Lakes with the Atlantic
and Lake Michigan. It was terminated by notice from the United
States March 17, 1866. The commission authorized by Article I
to designate the places reserved from the common right of fishing
met in August, 1855, and ceased to exist by the termination of the
treaty. Nearly all the work had been accomplished when the com-
mission dissolved.
1854.
CLAIMS CONVENTION.
Concluded July 17, 1854; ratification advised by the Senate July
21, 1854; ratified by the President July 24, 1854; ratifications
exchanged August 18, 1854; proclaimed September 11, 1854.
(Treaties and Conventions, 1889, p. 453.)
U. S. Treaties 1904, p. 329; 10 Stats, at Large, Treaties, 213.
By this convention the existence of the claims commission under
the convention of 1853 was extended four months.
1862.
TREATY FOR THE SUPPRESSION OF AFRICAN SLAVE TRADE.
Concluded April 7 , 1862; ratification advised by the Senate April
24, 1862; ratified by the President April 25, 1862; ratifications
exchanged May 20, 1862; proclaimed June 7 , 1862. (Treaties
and Conventions, 1889, p. 454.)
U. S. Treaties 1904, p. 329; 12 Stats, at Large, 1225.
APPENDIX II. 673
ARTICLES.
I. Search of suspected slavers by VII. No compensation to vessels
war vessels. with slave equipments.
II. Authority and procedure. VIII. Disposal of vessels condemned.
III. Indemnity for losses. IX. Punishment of owners, crew,
IV. Mixed courts established. etc.
V. Eeparation for wrongful seiz- X. Eelease of negroes.
ures. XL Instructions and regulations.
VI. Evidences of slave trading. XII. Katification; duration.
1863.
ADDITIONAL ARTICLES TO THE TREATY FOR THE SUPPRESSION OF
SLAVE TRADE, 1862.
Concluded February 17, 1863; ratification advised ~by the Senate
February 27, 1863; ratified by the President March 5, 1863;
ratifications exchanged April lf 1863; proclaimed April 22,
1863. (Treaties and Conventions, 1889, p. 466.)
U. S. Treaties 1904, p. 335; 13 Stats, at Large, 645.
This treaty extends the right of visit and detention to within
thirty leagues of Madagascar, Porto Eico, and Santo Domingo.
1863.
CLAIMS TREATY.
Concluded July 1, 1863; ratification advised by the Senate Janu-
ary 18, 1864; ratified by the President March 2, 1864; ratifica-
tions exchanged March 3, 1864; proclaimed March 5, 1864.
(Treaties and Conventions, 1889, p. 467.)
U. S. Treaties 1904, p. 336; 13 Stats, at Large, 651.
By this treaty the claims of the Hudson 's Bay Company and the
Puget's Sound Agricultural Company against the United States
were referred to a commission. The commission met in Washing-
ton January 7, 1865, and on September 10, 1869, rendered their
awards of $450,000 to the Hudson's Bay Company, and $200,000 to
the Puget 's Sound Agricultural Company.
Treaties — 43
674 APPENDIX n.
1870.
NATURALIZATION CONVENTION.
Concluded May 13, 1870; ratification advised by the Senate July 8,
1870; ratified by the President July 19, 1870; ratifications ex-
changed August 10, 1870; proclaimed September 16, 1870.
(Treaties and Conventions, 1889, p. 470.)
U. & Treaties 1904, p. 336; 16 Stats, at Large, 775.
AETICLES.
I. Naturalization recognized. III. Resumption of original citizen-
II. Renunciation of previous natur- ship.
alization. IV. Ratification.
1870.
CONVENTION FOR THE SUPPRESSION OF SLAVE TRADE.
Concluded June 3, 1870; ratification advised by the Senate July 8,
1870; ratified by the President July 19, 1870; ratifications ex-
changed August 10, 1870; proclaimed September 16, 1870.
(Treaties and Conventions, 1889, p. 472.)
U. S. Treaties 1904, p. 338; 16 Stats, at Large, 777.
ARTICLES.
I. Mixed courts abolished. V. Former treaty continued.
II. Jurisdiction over vessels seized. VI. Notification of effect of con-
Ill. Procedure. vention.
IV. Instructions to war ships. VII. Duration; ratification.
1871.
CONVENTION AS TO RENUNCIATION OF NATURALIZATION.
Concluded February 23, 1871; ratification advised by the Senate
March 22, 1871; ratified by the President March 24, 1871;
ratifications exchanged May 4, 1871; proclaimed May 5, 1871.
(Treaties and Conventions, 1889, p. 476.)
U. S. Treaties 1904, p. 342; 17 Stats, at Large, 841.
The Naturalization Convention of 1870 provided for the renun-
ciation of citizenship acquired prior to that time in either coun-
try, and agreed that the manner of making such renunciation should
be subsequently determined upon. This convention designated the
time and method of making such renunciation of acquired citizen-
ship.
APPENDIX II.
675
1871.
TREATY FOR THE SETTLEMENT OF ALL CAUSES OF DIFFERENCE.1
(TREATY OF WASHINGTON.)
Concluded May 8, 1871; ratification advised by the Senate May 24,
1871; ratified by the President May 25, 1871; ratifications ex-
changed June 17, 1871; proclaimed July 4, 1871. (Treaties
and Conventions, 1889, p. 478.)
U. S. Treaties 1904, p. 343; 17 Stats, at Large, 863.
(Only the articles now in force are printed.)
ARTICLES.
I to XI, inclusive, relate to the Tri-
bunal for arbitration of the Ala-
bama Claims, and terminated by
the rendering of the award at
Geneva, September 14, 1872, of
$15,500,000 to the United States.
XII to XVII, inclusive, provided for
tthe reference of Civil War
claims against both govern-
ments to a commission which,
met at Washington, September
26, 1871, and held its final meet-
ing September 25, 1873, award-
ing $1,929,819 gold to Great
Britain. The claims of United
States citizens against Great
Britain were all disallowed.
XVIII to XXV, relating to the Fish-
eries, were terminated July 1,
1885, upon notice given in pur-
suance of a joint resolution of
March 3, 1883 (U. S. Stats.,
Vol. 22, p. 641). Articles XXII
to XXV, inclusive, provided for
the appointment of a commis-
sion to ascertain the amount of
compensation to be awarded
Great Britain for fishery privi-
leges granted under Article
XVIII. The commission met at
Halifax, Nova Scotia, June 15,
1877, and November 23, 1877,
awarded to Great Britain $5,-
500,000 in gold.
XXVI. Navigation of St. Lawrence,
Yukon, Porcupine, and Stikine
Rivers.
XXVII. Reciprocal use of canals.
XXVIII related to the navigation of
Lake Michigan and expired by
its own limitation.
XXIX related to bonding privileges
and is not considered in effect.
(See Messages and Papers of
Presidents, Vol. 9, p. 335.)
XXX. Reciprocal transportation in
vessels. This article was ter-
minated July 1, 1885, upon no-
tice given by the United States.
XXXI. Timber on river St. John.
XXXII and XXXIII relate to the
fisheries and were terminated
July 1, 1885.
XXXIV to XLH provide for the ar-
bitration by the Emperor of
Germany of the northwestern
water boundary. (See p. 346.)
XLIII. Ratification.
*See Weld & Co. v. United States, 23 Ct. of Cl. 126.
676 APPENDIX II.
1873.
ADDITIONAL ARTICLE TO TREATY OF MAY 8, 1871, RESPECTING MEET-
ING PLACE FOR THE COMMISSION UNDER ARTICLE XII.
Concluded January 18, 1873; ratification advised by the Senate
February 14, 1873; ratified by the President February 28,
1873; ratifications exchanged April 10, 1873; proclaimed April
15, 1873. (Treaties and Conventions, 1889, p. 494.)
U. S. Treaties 1904, p. 348; 17 Stats, at Large, 947.
This article permitted the commission to hold its meetings at
other places than Washington.
1877.
DECLARATION AFFORDING RECIPROCAL PROTECTION TO TRADEMARKS.
Concluded October 24, 1877 ; ratification advised by the Senate May
22, 1878; ratified by the President May 25, 1878; no exchange
of ratifications made; proclaimed July 17, 1878. (Treaties and
Conventions, 1889, p. 501.)
U. S. Treaties 1904, p. 349; 20 Stats, at Large, 703.
1889.
EXTRADITION CONVENTION.1
Concluded July 12, 1889; ratification advised by the Senate with
amendments February 18, 1890; ratified by the President Feb-
ruary 25, 1890; ratifications exchanged March 11, 1890; pro-
claimed March 25, 1890.
U. S. Treaties 1904, p. 349; 26 Stats, at Large, 1508.
AETICLES.
I. Additional extraditable V. Crimes committed in other
crimes. countries.
II. Political crimes. JL P™ednre.
VII. Escaped convicts.
III. Prior offenses. vm No prior effect
IV. Delivery of articles seized. IX. Eatification; duration.
1 See Bryant v. United States, 167 Ames, 180 U. S. 371, ^21 Sup. Cl
U. S. 104, 17 Sup. Ct. Eep. 744, 42 L. Eep. 406, 45 L. ed. 577; Wright v.
ed. 94; In re Breen, 75 Fed. 458; Henkel, 190 U. S. 45, 23 Sup. Ct.
In re Bryant, 80 Fed. 282; Cosgrove Eep. 781, 47 L. ed. 948; In re Tay-
v. Winney, 174 U. S. 641, 19 Sup. lor, 118 Fed. 196; In re Wright, 123
Ct. Eep. 598, 43 L. ed. 897; Eice v. Fed. 463; In re Frank, 107 Fed. 272.
APPENDIX II. 677
1892.
CONVENTION RELATING TO FUR SEALS IN BERING SEA.
Concluded February 29, 1892; ratification advised by Senate March
29, 1892; ratified by President April 22, 1892; ratifications
exchanged May 7, 1892; proclaimed May 9, 1902.
U. S. Treaties 1904, p. 352; 27 Stats, at Large, 947.
ARTICLES.
I. Tribunal. IX. Eeport.
II. Meeting; agent. X. Expenses.
III. Submission of case. XI. Decision.
IV. Procedure. XII. Arbitration expenses.
V. Arguments. XIII. Record.
VI. Points for decision. XIV. Final settlement.
VII. Regulations to preserve seals. XV. Ratification.
VIII. Liabilities for injuries.
1892.
CONVENTION FOR THE RENEWAL OF THE EXISTING MODUS VIVENDF
IN BERING SEA.
Concluded April 18, 1892; ratification advised by the Senate April
19, 1892; ratified by the President April 22, 1892; ratifications
exchanged May 7, 1892; proclaimed May 9, 1892.
U. S. Treaties 1904, p. 366; 27 Stats, at Large, 952.
By this convention of seven articles both governments prohibited
the killing of fur seals by their respective citizens and subjects in
the eastern part of Bering Sea during the pendency of the fur-seal
arbitration.
1892.
TREATY FOR THE RECOVERY OF DESERTERS FROM MERCHANT VESSELS.
I Concluded June 3, 1892; ratification advised by the Senate June
30, 1892; ratified by the President July 14, 1892; ratifications
exchanged August 1, 1892; proclaimed August 1, 1892.
U. S. Treaties 1904, p. 366; 27 Stats, at Large, 961.
ARTICLES.
•I
I. Arrests of deserting seamen. III. Duration.
II. Ratifications.
678 APPENDIX II.
1892.
CONVENTION FOR DELIMITING BOUNDARIES NOT PERMANENTLY
MARKED.
Concluded July 22, 1892; ratification advised ~by the Senate July 25,
1892; ratified by the President July 29, 1892; ratifications ex-
changed August 23, 1892; proclaimed August 26, 1892.
IT. S. Treaties 1904, p. 368; 27 Stats, at Large, 955.
ARTICLES.
I. Commissions to survey Alaskan II. Commission to mark the bound-
boundary, ary in Passamaquoddy Bay.
III. Ratification.
1894.
CONVENTION EXTENDING THE TERMS OF THE ALASKAN BOUNDARY
COMMISSIONS.
Concluded February 3, 1894; ratification advised by the Senate
February 12, 1894; ratified by the President February 15,
1894; ratifications exchanged March 28, 1894; proclaimed
March 28, 1894.
IT. S. Treaties 1904, p. 370; 28 Stats, at Large, 1200.
ARTICLES.
I. Term of commissions extended. II. Ratification.
1896.
CLAIMS CONVENTION.
Concluded February 8, 1896 ; ratification advised by the Senate
with amendments April 15, 1896 ; ratified by the President
April 23, 1896; ratifications exchanged June 3, 1896; pro-
claimed June 11, 1896.
U. S. Treaties 1904, p. 371; 29 Stats, at Large, 844.
This convention provided for a commission to settle the claims pre-
sented by Great Britain for the losses sustained by the seizures of
APPENDIX II. 679
British vessels for fur sealing in the Bering Sea, under the provi-
sions of the award of the Paris Tribunal of 1893. The two com-
missioners authorized by the convention held their first session at
Victoria, British Columbia, November 25, 1896, and December 17,
1897, rendered an award of $473,151.26 against the United States.
1898.
PROTOCOL OF THE CONFERENCES AT WASHINGTON IN MAY, 1898,
PRELIMINARY TO THE APPOINTMENT OF A JOINT COMMISSION
FOR THE ADJUSTMENT OF QUESTIONS AT ISSUE BETWEEN THE
UNITED STATES AND GREAT BRITAIN, IN RESPECT TO THE RELA-
TIONS OF THE FORMER WITH THE DOMINION OF CANADA.
1899.
CONVENTION AS TO TENURE AND DISPOSITION OF REAL AND PERSONAL
PROPERTY.
Concluded March 2, 1899; ratification advised by the Senate March
22, 1900; ratified by the President July 16, 1900; ratifications
exchanged July 28, 1900 ; proclaimed August 6, 1900.
U. S. Treaties 1904, p. 375; 31 Stats, at Large, 1939.
AETICLES.
I. Disposition of real property. V. Most favored nation treatment.
II. Disposition of personal prop- VI. Duration.
erty. VLT. Eatification.
III. Decease of property holder. Accession of Colonies of Great
IV. Not applicable to colonies or Britain to convention,
possessions.
1899.
MODUS VIVENDI WITH GREAT BRITAIN, FIXING A PROVISIONAL
BOUNDARY LINE BETWEEN THE TERRITORY OF ALASKA AND
THE DOMINION OF CANADA ABOUT THE HEAD OF LYNN CANAL.
Concluded October 20, 1899.
U. S. Treaties 1904, p. 378.
680 APPENDIX II.
1900.
SUPPLEMENTARY EXTRADITION TREATY.
Concluded December 13, 1900; ratification advised by Senate
March 8, 1901; ratified by President March 28, 1901; ratifica-
tions exclianged April 22, 1901; proclaimed April 22, 1901.
U. S. Treaties 1904, p. 379; 32 Stats, at Large, 1864.
AETICLES.
I. Extraditable crimes. 12, 1899; ratification; dura-
II. Extradition convention of July tion.
1901.
TREATY TO FACILITATE THE CONSTRUCTION OF A SHIP CANAL.
Concluded November 18, 1901; ratification advised by Senate De-
cember 16, 1901; ratified by President December 26, 1901;
ratifications exchanged February 21, 1902; proclaimed Feb-
ruary 22, 1902.
U. S. Treaties 1904, p. 380; 32 Stats, at Large, 1903.
AETICLES.
I. Convention of April 19, 1850. IV. Change of sovereignty.
II. Construction of canal. V. Ratification.
III. Eules of neutralization.
1902.
SUPPLEMENTARY CONVENTION AS TO TENURE AND DISPOSITION OF
REAL AND PERSONAL PROPERTY.
Concluded January 13, 1902; ratification advised by Senate Feb-
ruary 17, 1902; ratified by the President March 7, 1902; rati-
fications exchanged April 2, 1902; proclaimed April 2, 1902.
U. S. Treaties 1904, p. 377; 32 Stats, at Large. 1914.
1902.
TREATY AS TO IMPORT DUTIES IN ZANZIBAR.
Concluded May 31, 1902; ratification advised by Senate June 3(
1902; ratified by President July 22, 1902; ratifications
changed October 17, 1902; proclaimed October 17, 1902.
U. S. Treaties 1904, p. 382; 32 Stats, at Large, 1959.
APPENDIX H. 681
AETICLES.
I. Import duties. III. Most favored nation treatment
II. Most favored nation treatment as to commercial interests.
as to duties.
1903.
TREATY AS TO LIGHT AND HARBOR DUES IN ZANZIBAR.
Concluded June 5, 1903; ratification advised by Senate November
25, 1903; ratified by President December 8, 1903; ratifications
exchanged December 24, 1903; proclaimed December 24, 1903.
U. S. Treaties 1904, p. 384; 33 Stats, at Large, pt. 2, p. 2172.
AETICLES.
I. Collection of light and harbor II. Lighthouses; consent of powers,
dues. III. Ratification.
1903.
CONVENTION AS TO ALASKAN BOUNDARY.
Concluded January 24, 1903; ratification advised by Senate Feb-
ruary 11, 1903; ratified by President February 24, 1903; rati-
fications exchanged March 3, 1903; proclaimed March 3, 1903.
U. S. Treaties 1904, p. 384; 32 Stats, at Large, 1961.
AETICLES.
I. Tribunal. V. Meeting.
II. Procedure. VI. Decision.
III. Treaties considered. VII. Ratification.
IV. Questions to be decided.
DECISION OF THE ALASKAN BOUNDARY TRIBUNAL UNDER THE
TREATY OF JANUARY 24, 1903, BETWEEN THE UNITED STATES
AND GREAT BRITAIN.
U. S. Treaties 1904, p. 390.
Seven questions were submitted to the tribunal and the decision
was dated October 20, 1903. The tribunal consisted of six jurists.
682 APPENDIX II.
1905.
TREATY BETWEEN THE UNITED STATES AND GREAT BRITAIN BY
WHICH THE UNITED STATES RELINQUISHES EXTRATERRITORIAL
EIGHTS IN ZANZIBAR.
Signed at Washington, February 25, 1905; ratification advised by
the Senate March 8, 1905; ratified by the President, May 12,
1905; ratified by Great Britain, April 3, 1905; ratifications
exchanged at Washington June 12, 1905; proclaimed June 12,
1905.
Treaties and Proclamations, 2870; 34 Stats, at Large, pt. 3.
ARTICLES.
I. Extraterritorial rights relin- II. Authority to British courts,
quished in British Protector- III. Ratification,
ate of Zanzibar — Jurisdiction
of consular courts renounced.
1905.
SUPPLEMENTARY CONVENTION BETWEEN THE UNITED STATES AND
GREAT BRITAIN FOR THE EXTRADITION OF CRIMINALS.
\
Signed at London, April 12, 1905; ratification advised by the Sen-
ate December 13, 1905 ; ratified by the President December 21,
1906; ratified by Great Britain November 14, 1906; ratifica-
tions exchanged at Washington December 21, 1906; proclaimed
February 12, 1907.
Treaties and Proclamations, 2903; 34 Stats, at Large, pt. 3.
ARTICLES.
I. Crimes added. II. Former treaty applicable.
APPENDIX II. 683
1906.
CONVENTION BETWEEN THE UNITED STATES AND GREAT BRITAIN
PROVIDING FOR THE SURVEYING AND MARKING OUT UPON THE
GROUND OF THE 141ST DEGREE OF WEST LONGITUDE WHERE
SAID MERIDIAN FORMS THE BOUNDARY LINE BETWEEN ALASKA
AND THE BRITISH POSSESSIONS IN NORTH AMERICA.
Signed at Washington April 21, 1906 ; ratification advised by the
Senate April 25, 1906; ratified by the President July 10, 1906;
ratified by Great Britain June 9, 1906 ; ratifications exchanged
at Washington August 16, 1906; proclaimed August 21, 1906.
Treaties and Proclamations, 2948; 34 Stats, at Large, pt. 3.
ARTICLES.
I. Commissioners, etc. IV. Eeports.
II. Boundary line monuments. V. Ratification.
III. Expenses.
GREECE.
1837.
TREATY OF COMMERCE AND NAVIGATION.
Concluded December 22, 1837 ; ratification advised by the Senate
March 26, 1838; ratified by the President April 12, 1838;
ratifications exchanged June 13, 1838; proclaimed August
30, 1838. (Treaties and Conventions, 1889, p. 502.)
IT. S. Treaties 1904, p. 394; 8 Stats, at Large, 498.
ARTICLES.
I. Freedom of commerce. X. Vessels entering without un-
II. Tonnage duties, etc. loading.
III. Imports. XI. Unloading part of cargo.
IV. Exports. XII ^ These articles abrogated by
V. Coasting trade. xnl I treaty concluded Nov. 19,
VI. Government purchases. XIV. f 1902.
VIE. Navigation duties. ~'~
,TTT_ __ _. .... •>.,• XV. Quarantine.
K;on*1SCrlImnatmg P™hlbl- XVI. Blockades.
XVH. Duration.
IX. Transit, bounties, and draw-
XVIII. Ratification,
backs.
684 APPENDIX II.
1902.
CONSULAR CONVENTION.
Concluded November 19, 1902 (December 2, 1902); ratification ad-
vised by Senate February 16, 1903 ; ratified by President May
20, 1903; ratifications exchanged July 9, 1903; proclaimed
July 11, 1903.
U. S. Treaties 1904, p. 399: 33 Stats, at Large, pt. 2, p. 2122.
ARTICLES.
I. Consular officers. IX. Application to authorities.
II. Most favored nation consular X. Notarial powers.
privileges, etc. XI. Estates of deceased persons.
III. Exemptions. XII. Shipping disputes.
IV. Testimony by consuls. XIII. Deserters from ships.
V. Arms and flag. XIV. Damages to vessels at sea.
VI. Immunities of offices and XV. Shipwrecks and salvage,
archives. XVI. Examination on vessels.
VII. Acting officers. XVII. Ratification; duration.
Vice-consuls and agents.
GUATEMALA.
1849.
TREATY OP PEACE, FRIENDSHIP, COMMERCE AND NAVIGATION.
Concluded March 3, 1849; ratification advised by the Senate Sep-
tember 24, 185,0; time for exchange of ratifications extended
by the Senate September 27, 1850, and again June 7, 1852;
ratified by the President November 14, 1850; ratifications ex*
changed May 13, 1852; proclaimed July 28, 1852. (Treaties
and Conventions, 1889, p. 508.)
IT. S. Treaties 1904,. p. 405; 10 Stats, at Large, Treaties, 1.
This treaty of thirty-three articles was terminated by notice
November 4, 1874.
APPENDIX II. 685
1901.
TRADEMARK CONVENTION.
Concluded April 15, 1901; ratification advised by Senate January
27, 1902; ratified by President February 1, 1902; ratifications
exchanged April 3, 1902; proclaimed April 11, 1902.
U. S. Treaties 1904, p. 405; 32 Stats, at Large, 1866.
AETICLES.
I. Reciprocal rights. IH. Duration.
II. Formalities. VI. Ratification.
1901.
CONVENTION RELATING TO TENURE AND DISPOSITION OF REAL AND
PERSONAL PROPERTY.
Concluded August 27, 1901; ratification advised by Senate Jan-
uary 30, 1902; ratified by President February 6, 1902; rati-
fications exchanged September 16, 1902; proclaimed Septem-
ber 18, 1902.
U. S. Treaties 1904, p. 406; 32 Stats, at Large, 1944.
ARTICLES.
I. Disposition of real property. IV. Duration.
II. Disposition of personal property. V. Ratification.
III. Notice of decease of citizens,
etc.
1903.
EXTRADITION TREATY.
Concluded February 27, 1903; ratification advised by Senate
March 11, 1903; ratified by President July 8, 1903; ratifica-
tions exchanged July 16, 1903; proclaimed July 17, 1903.
U. S. Treaties 1904, p. 408; 33 Stats, at Large, pt. 2, 2147.
ARTICLES.
I. Delivery of accused. IX. Provisional arrest.
II. Extraditable offenses. X. Procedure.
III. Offense for which tried. XI. Expenses.
IV. Political offenses. XII. Property in possession of ac-
V. Nondelivery of citizens. cused.
VI. Deferring extradition. XIH. Crimes by citizens of one
VII. Persons claimed by other against other contracting
countries. power.
VHI. Limitations. XIV. Duration; ratification.
686
APPENDIX II.
HAYTI.
1864.
TREATY OF AMITY, COMMERCE AND NAVIGATION, AND EXTRADITION.
Concluded November 3, 1864; ratification advised by the Senate
January 17, 1865; ratified by the President May 18, 1865;
ratifications exchanged May 22, 1865 ; proclaimed July 6,
1865,. (Treaties and Conventions, 1889, p. 551.)
U. S. Treaties 1904, p. 414; 13 Stats, at Large, 711.
ARTICLES.
I. Amity. XXIII.
II. Most favored nation XXIV.
treatment. XXV.
III. Immunity in case of war. XXVI.
IV. Confiscations prohibited. XXVII.
V. Personal exemptions of
citizens. XXVIII.
VI. Trade privileges. XXIX.
VII. Privacy of books and pa-
pers. XXX.
VIII. Eeligious freedom.
IX. Disposal of personal prop- XXXI.
erty.
X. Imports. XXXII.
XI. Exports. XXXIII.
XII. Coasting trade. XXXIV.
XIII. Equality of duties and XXXV.
prohibitions. XXXVI.
XIV. Discriminating duties. XXXVII.
XV. Eights of asylum.
XVI. Shipwrecks. XXXVIII.
XVII. Neutrality of vessels.
XVIII. Blockades. XXXIX.
XIX. Free ships, free goods. XL.
XX. Contraband articles. XLI.
XXI. Goods not contraband. XLII.
XXII. Merchant ships. XLIII.
Papers of neutral vessels.
Eight of search.
Ships under convoy.
Captures.
Care of property cap-
tured.
Prize courts.
Entry of captured ves-
sels.
Eestriction on foreign
privateers.
Letters of marque forbid-
den.
Diplomatic privileges.
Consular service.
Exequaturs.
Consular privileges.
Deserters from ships.
Consular convention to
be concluded.
Extradition of fugitives
from justice.
Extraditable crimes.
Surrender; expenses.
Political offenses.
Duration.
Ratification.
APPENDIX II. 687
1902.
NATURALIZATION TREATY.
Concluded March 22, 1902; ratification advised by Senate Feb-
ruary 1, 1904; ratified by President March 17, 1904; ratifica-
tions exchanged March 19, 1904; proclaimed March 24, 1904.
U. S. Treaties 1904, p. 425; 33 Stats, at Large, pt. 2, p. 2101.
AETICLES.
I. Eeciprocal recognition of citi- IV. Punishment of citizens.
zens. V. Declaration of intention.
II. Kenunciation of nationality. VI. Duration.
III. Intent to return. VII. Eatification.
1903.
NATURALIZATION TREATY (EXTENSION).
Concluded February 28, 1903; ratification advised by Senate Feb-
ruary 1, 1904; ratified by President March 17, 1904; ratifica-
tions exchanged March 19, 1904; proclaimed March 24, 1904.
U. S. Treaties 1904, p. 427; 33 Stats, at Large, pt. 2, p. 2157.
This treaty extends the period for the exchange of ratifications
of the naturalization treaty of February 28, 1903, for twelve
months from March 22, 1903.
1904.
TREATY BETWEEN THE UNITED STATES AND THE REPUBLIC OF HAYTI
FOR THE MUTUAL EXTRADITION OF CRIMINALS.
Signed at Washington, August 9, 1904; ratification advised by the
Senate, December 15, 1904; ratified by the President June
17, 1905; ratified by Hayti August 25, 1904; ratifications ex-
changed at Washington June 28, 1905; proclaimed June 28,
1905.
Treaties and Proclamations, 2858; 34 Stats, at Large, pt. 3.
688 APPENDIX II.
AETICLES.
I. Eeciprocal delivery of persons VIII. Trial to be only for offense
charged with crimes. for which extradited.
II. Extraditable crimes. IX. Application for provisional ar-
III. Attempts to commit crimes. rest.
IV. Neither party bound to deliv- X. Requisitions.
er up its own citizens. XI. Evidence required.
V. Persons under prosecution in XII. Disposal of articles seized
country where found. with person.
VI. Persons claimed by other XIII. Expenses.
countries. XIV. Applicable to United States
VII. No surrender for political of- insular possessions,
fenses. XV. Effect.
XVI. Exchange of ratifications.
HANOVEE.
Hanover was conquered and merged into Prussia in 1866, and is
now included in the German Empire.
1840.
TREATY OP COMMERCE AND NAVIGATION.
Concluded May 20, 1840; ratification advised by the Senate July
15, 1840; ratified by the President July 28, 1840; ratifications
exchanged November 14, 1840; proclaimed January 2, 1841.
(Treaties and Conventions, 1889, p. 528.)
U. S. Treaties 1904, p. 428; 8 Stats, at Large, 552.
This treaty, consisting of ten articles, was superseded by the
treaty of 1846.
1846.
TREATY OF COMMERCE AND NAVIGATION.
Concluded June 10, 1846; ratification advised by the Senate Jan-
uary 6, 1847 ; ratified by the President July 28, 1847 ; rati-
fications exchanged March 15, 1847 ; proclaimed April 24, 1847.
(Treaties and Conventions, 1889, p. 523.)
U. S. Treaties 1904, p. 428; 9 Stats, at Large, Treaties, 55.
This treaty of thirteen articles terminated on the merging of the
country into the Kingdom of Prussia.
APPENDIX II. 689
1855.
EXTRADITION TREATY.
Concluded January 18, 185,5; ratification advised by the Senate
March 13, 1855; ratified by the President March 18, 1855; rati-
fications exchanged April 17, 1855; proclaimed May 5, 1855.
(Treaties and Conventions, 1889, p. 528.)
IT. S. Treaties 1904, p. 428.
This treaty of six articles terminated in 1866, when Hanover was
merged into the Kingdom of Prussia.
1861.
CONVENTION ABOLISHING STADE OR BRUNSHAUSEN DUES.
Concluded November 6, 1861; ratification advised by the Senate
February 3, 1862; ratified by the President February 7, 1862;
ratifications exchanged April 29, 1862; proclaimed June 17,
I 186 2. (Treaties and Conventions, 1889, p. 530.)
U. S. Treaties 1904, p. 428; 12 Stats, at Large, 1187.
This treaty, consisting of seven articles, terminated on the incor-
poration of the Kingdom into Prussia.
HANSEATIC REPUBLICS.
(BREMEN, HAMBURG, AND LUBECK.)
The Hanseatic Republics were incorporated into the North Ger-
man Union July 1, 1867.
1827.
CONVENTION OF FRIENDSHIP, COMMERCE, AND NAVIGATION.
Concluded December 20, 1827; ratification advised by the Senate
January 7, 1828; ratified by the President; ratifications ex-
changed June 2, 1828; proclaimed June 2, 1828. (Treaties
and Conventions, 1889, p. 533.)
U. S. Treaties 1904, p. 429; 8 Stats, at Large, 366.
Treaties — 44
690 APPENDIX II.
ARTICLES.
I. Equality of duties. VIII. Special protection to persons
II. Import and export duties. and property.
III. Government purchases. IX. Most favored nation privi-
IV. Proof of Hanseatic vessels. leges.
V. Rights to trade. , X. Duration.
VI. Commercial privileges. . XI. Ratification.
VII. Property rights.
1828.
ADDITIONAL ARTICLE TO CONVENTION OF 1827.
Concluded June 4, 1828; ratification advised by the Senate De-
cember 29, 1828; ratified by the President; ratifications ex-
changed January 14, 1829; proclaimed July 29, 1829. (Treat-
ies and Conventions, 1889, p. 537.)
U. S. Treaties 1904, p. 433; 8 Stats, at Large, 386.
This article, relating to the arrest of deserters at the request
of consuls, was superseded by the consular convention with the
German Empire, 1871.
1852.
CONSULAR CONVENTION.
Concluded April 30, 1852; ratification advised by the Senate
August 30, 1852; ratified by the President September 24, 1852;
ratifications exchanged February 25, 1853; proclaimed June
6, 1853. (Treaties and Conventions, 1889, p. 538.)
U. S. Treaties 1904, p. 433; 10 Stats, at Large, Treaties, 95.
This convention of three articles was superseded by the gen-
eral consular convention of the German Empire, 1871.
HAWAIIAN ISLANDS.
The cession of the Hawaiian Islands to the United States hav-
ing been accepted by the resolution approved by the President
July 7, 1898 (30 Stats, at Large, 75), the treaties with that
country terminated upon the formation of the government for the
islands.
APPENDIX II. 691
1849.
TREATY OF FRIENDSHIP, COMMERCE, AND NAVIGATION AND EXTRA-
DITION.
Concluded December 20, 1849; ratification advised by the Senate
January 14, 1850; ratified by the President February 4, 1850;
ratifications exchanged August 24, 1850 ; proclaimed Novem-
ber 9, 1850. (Treaties and Conventions, 1889, p. 540.)
IT. S. Treaties 1904, 434; 9 Stats, at Large, Treaties, 178.
1875.
TREATY OF RECIPROCITY.1
Concluded January 30, 1875; ratification advised by the Senate
March 18, 1875; ratified by the President May 31, 1875; rati-
fications exchanged June 3, 1875 ; proclaimed June 3, 1875.
(Treaties and Conventions, 1889, p. 546.)
U. S. Treaties 1904, 434; 19 Stats, at Large, Treaties, 69.
By this treaty of six articles certain specified articles were ad-
mitted free of duty into the United States and the Hawaiian
Islands respectively.
1884.
TREATY OF RECIPROCITY.1
Concluded December 6, 1884; ratification advised by the Senate
with amendments January 20, 1887 ; ratified by the President
November 7, 1887 ; ratifications exchanged November 9, 1887 ;
proclaimed November 9, 1887. (Treaties and Conventions,
1889, p. 1187.)
IT. S. Treaties 434; 25 Stats, at Large, 1399.
By this treaty the Reciprocity Treaty of 1875 was extended for a
further term of seven years, and there was granted to the United
States the exclusive right to establish a coaling station at Pearl
River Harbor.
1 See Nethercleft v. Kobertson, 23 Blatchf. 548, 27 Fed. 737.
692 APPENDIX II.
HESSE.
(See NORTH GERMAN CONFEDERATION.)
1844.
CONVENTION ABOLISHING DROIT D'AUBAINE AND TABLES ON EMI-
GRATION.
Concluded March 26, 1844; ratification advised by the Senate June
12, 1844; ratified by the President June 22, 1844; ratifications
exchanged October 16, 1844; time for exchange of ratifications
extended to July 4, 1845, and exchange 'previous thereto de-
clared regular by the Senate January 13, 1845; proclaimed
May 8, 1845. (Treaties and Conventions, 1889, p. 562.)
U. S. Treaties 1904, p. 435; 9 Stats, at Large, Treaties, 1.
AETICLES.
I. Droit d'aubaine, etc., abolished. IV. Eights of absent heirs.
II. Disposition of real estate. V. Inheritance disputes.
IH. Disposition of personal property. VI. Batification.
1868.
NATURALIZATION CONVENTION.
Concluded August 1, 1868; ratification advised by the Senate April
12, 1869; ratified by the President April 18, 1869; ratifications
exchanged July 23, 1869; proclaimed August 31, 1869.
(Treaties and Conventions, 1889, p. 563.)
U. S. Treaties 1904, p. 437; 16 Stats, at Large, 743.
AETICLES.
I. Naturalization recognized. IV. Eenunciation of acquired citi-
II. Prior offenses. zenship.
in. Extradition. V. Duration.
VI. Eatification.
APPENDIX II. 693
HONDURAS.
1864.
TREATY OF FRIENDSHIP, COMMERCE AND NAVIGATION.
Concluded July 4, 1864; ratification advised by the Senate Febru-
ary 20, 1865; ratified by the President March 9, 1865; ratifica-
tions exchanged May 5, 1865; proclaimed May 30, 1865.
(Treaties and Conventions, 1889, p. 566.)
IT. S. Treaties 1904, p. 439; 13 Stats, at Large, 699.
AETICLES.
I. Amity. IX. Exemptions from military ser-
II. Freedom of commerce; coast- vice, loans, etc.
ing trade. X. Diplomatic and consular privi-
III. Most favored nation privi- leges.
leges. XL Protection in case of war.
IV. Equality of import and export XII. General liberties.
duties. XIII. Duration of Articles IV, V,
V. Shipping dues. and VI.
VI. Reciprocal treatment of ves- XIV. Neutrality of Honduras Inter-
sels. oceanic Railway.
VII. Protection of property, etc. XV. Ratification.
III. Disposal of property, etc.
ITALY.
1868.
CONSULAR CONVENTION.
Concluded February 8, 1868; ratification advised by the Senate
June 17, 1868; ratified by the President June 22, 1868; rati-
fications exchanged September 17, 1868; proclaimed February
23, 1869. (Treaties and Conventions, 1889, p. 573.)
IT. S. Treaties 1904, p. 446; 15 Stats, at Large, 605.
This convention, consisting of seventeen articles, was superseded
»y the convention of 1878 upon the exchange of ratifications Sep-
ember 17, 1878.
694 APPENDIX II.
1868.
EXTRADITION CONVENTION.1
Concluded March 23, 1868; ratification advised with an amend-
ment by the Senate June 17, 1868; ratified by the President
June 22, 1868; ratifications exchanged September 17, 1868:
proclaimed September 30, 1868. (Treaties and Conventions,
1889, p. 578.)
U. S. Treaties 1904, p. 446; 15 Stats, at Large, 629.
AETICLES.
I. Delivery of accused. V. Procedure.
II. Extraditable crimes. VI. Expenses.
III. Political offenses. VII. Duration; ratification.
IV. Persons under arrest.
1869.
CONSULAR CONVENTION.
Concluded January 21, 1869; ratification advised by the Senate
February 16, 1869; ratified by the President February 24,
1869; ratifications exchanged May 7, 1869; proclaimed May
11, 1869. (Treaties and Conventions, 1889, p. 577.)
U. S. Treaties 1904, p. 448; 16 Stats, at Large, 769.
This was an article extending the time for the exchange of th
ratifications of the Consular Convention of 1868.
1869.
CONVENTION ADDITIONAL TO EXTRADITION CONVENTION, 1868.
Concluded January 21, 1869; ratification advised by the Senat
February 16, 1869; ratified by the President February 23
1869; ratifications exchanged May 7, 1869; proclaimed May
11, 1869. (Treaties and Conventions, 1889, p. 580.;
U. S. Treaties 1904, p. 449; 16 Stats, at Large, 767.
1 See In re De Giacoma, 12 Blatchf. 391, Fed. Gas. No. 3747.
APPENDIX II. 695
ADDITIONAL AETICLE RELATING TO THE CEIME OF EMBEZZLE-
MENT.1
It is agreed that the concluding paragraph of the second Article
of the Convention aforesaid shall be so amended as to read as fol-
lows:
8. Embezzlement by any person or persons hired or salaried, to
the detriment of their employers when these crimes are subject to
infamous punishment according to the laws of the United States,
and criminal punishment according to the laws of Italy.
In witness whereof the respective Plenipotentiaries have signed
the present Article in duplicate and have affixed thereto the seal of
their arms.
Done at Washington the 21st day of January, 1869.
WILLIAM H. SEWARD. [SEAL ]
M. CERRUTI. [SEAL]
1871.
TREATY OF COMMERCE AND NAVIGATION.
Concluded February 26, 1871; ratification advised by the Senate
April 15, 1871; ratified by the President April 29, 1871; rati-
fications exchanged November 18, 1871; proclaimed November
23, 1871. (Treaties and Conventions, 1889, p. 581.)
U. S. Treaties 1904, p. 449.
ARTICLES.
I. Freedom of commerce and XIV. Regulation of blockade.
navigation. XV. Contraband articles.
II. Liberty to trade and travel. XVI. Eights of neutrals; free
III. Eights of person and prop- ships, free goods.
erty; exemptions. XVII. Proof of nationality of ves-
IV. Embargo. sels.
V. No shipping discriminations. XVIII. Eight of search.
VI. No discriminations of im- XIX. Vessels under convoy.
ports and exports. XX. Conduct of commanders of
VII. Shipping privileges. war vessels.
VIII. Exemptions from shipping XXI. Protection in case of war.
dues, etc. XXII. Disposal of property.
IX. Shipwrecks. XXIII. Legal rights.
X. Completing crews. XXIV. Most favored nation privi-
XI. Piratical captures. leges.
. Exemptions in war. XXV. Duration.
II. Blockade. XXVI. Eatification.
4See Cantini v. Tillman, 54 Fed. S. 138, 22 Sup. Ct. Eep. 72, 46 L.
969; Storti v. Massachusetts, 183 U. ed. 120.
696 APPENDIX II.
1878.1
CONSULAR CONVENTION.
Concluded May 8, 1878; ratification advised ~by the Senate May 28,
1878; ratified by the President June 4, 1878; ratifications ex-
changed September 18, 1878; proclaimed September 27, 1878.
(Treaties and Conventions, 1889, p. 538.)
U. S. Treaties 1904, p. 457; 20 Stats, at Large, 725.
AETICLES.
I. Consular recognition. XI. Shipping disputes.
II. Exequaturs. XII. Disputes between passengers
III. Exemptions. and officers of vessels.
IV. Status in legal proceedings. XIII. Deserters from ships.
V. Arms and flags. XIV. Damages at sea.
VI. Archives. XV. Shipwrecks.
VII. Vacancies. XVI. Death of citizens.
VIII. Vice-consuls and agents. XVII. Most favored nation privi-
IX. Dealings with officials. leges.
X. General powers. XVIII. Duration; ratification.
1881.
CONVENTION SUPPLEMENTAL TO CONSULAR CONVENTION, 1878.
Concluded February 24, 1881; ratification advised by the Senate
May 5, 1881; ratified by the President May 10, 1881; ratifica-
tions exchanged June 18, 1881; proclaimed June 29, 1881.
(Treaties and Conventions, 1889, p. 593.)
U. S. Treaties 1904, p. 462; 22 Stats, at Large, 831.
AETICLES.
I. Shipping disputes; substitute for II. Eatification and effect,
article XI.
1882.
TRADEMARK DECLARATION.
Signed June 1, 1882; ratification advised by the Senate February
25, 1881; proclaimed March 19, 1884. (Treaties and Con-
ventions, 1889, p. 595.)
U. S. Treaties 1904, p. 463.
1 See The Salomoni, 29 Fed. 534.
APPENDIX II. 697
1884.
CONVENTION ADDITIONAL TO EXTRADITION CONVENTION, 1868.
Concluded June 11, 1884; ratification advised by the Senate July
5, 1884; ratified by the President April 10, 1885 ; ratifications
exchanged April 24, 1885: proclaimed April 24, 1885. (Treat-
ies and Conventions, 1889, p. 595.)
IT. S. Treaties 1904, p. 464; 24 Stats, at Large, 1001.
ARTICLES.
I. Kidnaping added to extradit- II. Preliminary detention,
able crimes. III. Effect; ratification.
1900.
RECIPROCAL COMMERCIAL ARRANGEMENT WITH ITALY.
Concluded February 8, 1900; proclaimed July 18, 1900.
U. S. Treaties 1904, p. 465; 31 Stats, at Large, 1979.
AETICLES.
I. Concessions by the United II. Concessions by Italy.
States. III. Approval; duration.
JAPAN.
1854.
TREATY OF PEACE, AMITY, AND COMMERCE.
Concluded March 31, 1854; ratification advised by the Senate July
15, 1854; ratified by the President August 7, 1854; ratifications
exchanged February 21, 1855 ; proclaimed June 22, 1855.
(Treaties and Conventions, 1889, p. 597.)
U. S. Treaties 1904, p. 468; 11 Stats, at Large, 597.
T>98 APPENDIX II.
AETICLES.
I. Peace and amity. VI. Business.
II. Opening of Simoda and Hako- VII. Trade.
dade. VIII. Supplies to vessels.
III. Shipwrecks. IX. Most favored nation privi-
IV. Treatment of shipwrecked per- leges.
sons. X. Open ports.
V. Shipwrecked persons at Si- XI. Consuls.
moda and Hakodade. XII. Eatification.
This treaty of twelve articles was superseded from July 17, 1899,
by treaty of November 22, 1894, Article XVIII.
1857.1
COMMERCIAL AND CONSULAR TREATY.
Concluded June 17, 1857 ; ratification advised by the Senate June
15,, 1858; ratified by the President June 30, 1858; proclaimed
June 30, 1858. (Treaties and Conventions, 1889, p. 599.)
U. S. Treaties 1904, p. 468; 11 Stats, at Large, 723.
This treaty of nine articles was superseded by the treaty of 1858.
1858.
TREATY OP COMMERCE AND NAVIGATION.
Concluded July 29, 1858; ratification advised by the Senate Decem-
ber 15, 1858; ratified by the President April 12, 1860; ratifi-
cations exchanged May 22, 1860; proclaimed May 23, 1860.
(Treaties and Conventions, 1889, p. 601.)
U. S. Treaties 1904, p. 468; 12 Stats, at Large, 1051.
This treaty containing fourteen articles was superseded on Jub
17, 1899, by treaty of November 22, 1894, Article XVIII.
1 See Boss v. Mclntyre, 140 U. S. 453, 11 Sup. Ct. Eep. 897, 35 L.
581.
APPENDIX II. 699
1864.
CONVENTION FOR THE REDUCTION OF IMPORT DUTIES.
Concluded January 28, 1864; ratification advised ~by the Senate
February 21, 1866; ratified by the President April 9, 1866;
proclaimed April 9, 1866. (Treaties and Conventions, 1889, p.
610.)
U. S. Treaties 1904, p. 469; 14 Stats, at Large, 655.
This convention of four articles was superseded by the conven-
tion of 1866, below.
1864.
CONVENTION FOR THE PAYMENT OF THE SIMONOSEKI INDEMNITIES.
Concluded October 22, 1864; ratification advised ~by the Senate Feb-
ruary 21, 1866 ; ratified by the President April 9, 1866 ; pro-
claimed April 9, 1866. (Treaties and Conventions, 1889, p.
611.)
U. S. Treaties 1904, p. 469; 14 Stats, at Large, 665.
This convention, between Japan and the United States, Great
Britain, France, and the Netherlands, provided for the payment of
$3,000,000 to the four powers.
1866.
CONVENTION ESTABLISHING TARIFF OF DUTIES BETWEEN JAPAN AND
THE UNITED STATES, GREAT BRITAIN, FRANCE, AND THE NETH-
ERLANDS.
Concluded June 25, 1866; ratification advised by the Senate June
17, 1868. (Treaties and Conventions, 1889, p. 612.)
U. S. Treaties 1904, p. 469.
This treaty containing twelve articles was not proclaimed and
was superseded July 17, 1899, by the treaty of November 22, 1894.
700 APPENDIX II.
1878.
COMMERCIAL CONVENTION.
Concluded July 25, 1878; ratification advised by the Senate Decem-
ber 18, 1878; ratified by the President January 20, 1879; rati-
fications exchanged April 8, 1879; proclaimed April 8, 1879.
(Treaties and Conventions, 1889, p. 621.)
U. S. Treaties 1904, p. 469; 20 Stats, at Large, 797.
This treaty containing ten articles was superseded July 17, 1899,
by the treaty of November 22, 1894.
1880.
CONVENTION FOR REIMBURSING SHIPWRECK EXPENSES.
Concluded May 17, 1880; ratification advised by the Senate March
23, 1881; ratified by the President April 7, 1881; ratifica-
tions exchanged June 16, 1881; proclaimed October 3, 1881.
(Treaties and Conventions, 1889, p. 624.)
U. S. Treaties 1904, p. 470; 22 Stats, at Large, 815.
1886.
EXTRADITION TREATY.
Concluded April 29, 1886; ratification advised by the Senate with
amendments June 21, 1886; ratified by the President July 13,
1886; ratifications exchanged September 27, 1886; proclaimed
November 3, 1886. (Treaties and Conventions, 1889, p. 625.)
U. S. Treaties 1904, p. 471; 24 Stats, at Large, 1015.
AETICLES.
I. Delivery of accused. VI. Temporary detention.
II. Extraditable crimes. VII. Delivery of citizens.
III. Persons under arrest. VIII. Expenses.
IV. Political offenses. IX. Duration; ratification.
V. Procedure.
APPENDIX II.
701
1894.
TREATY OF COMMERCE AND NAVIGATION.1
Concluded November 22, 1894; ratification advised by the Senate
with amendments February 5, 1895 ; ratified by the President
February 15, 1895; ratifications exchanged March 21, 1895 ;
proclaimed March 21, 1895.
U. S. Treaties 1904, p. 474; 29 Stats, at Large, 848.
AETICLES.
I. Mutual freedom of trade,
travel, etc.; taxes; exemp-
tions.
II. Commerce and navigation.
III. Inviolability of dwellings,
etc.
IV. Import duties.
V. Export duties.
VI. Transit dues, etc.
VII. Equality of shipping.
VIII. Tonnage, etc., dues.
IX. Port regulations.
X. Coasting trade.
XI. Vessels in distress, ship-
wrecks, etc.
XII. Nationality of vessels.
XIII. Deserters from ships.
XIV. Favored nation privileges.
XV. Consular officers.
XVI. Patents, trademarks and de-
signs.
XVII. Abolition of foreign settle-
ments in Japan.
XVIII. Former treaties superseded.
XIX. Date of taking effect.
XX. Ratification.
Protocol.
1897.
CONVENTION AS TO PATENTS, TRADEMARKS, AND DESIGNS.
Concluded January 13, 1897 ; ratification advised by the Senate
February 1, 1897; ratified by the President February 2, 1897 :
ratifications exchanged March 8, 1897 ; proclaimed March 9,
1897.
U. S. Treaties 1904, p. 482; 29 Stats, at Large, 860.
1 See The Japanese Immigrant Case, 189 U. S. 86, 23 Sup. Ct. Rep. 611,
47 L. ed. 721.
702 APPENDIX II.
1905.
COPYRIGHT CONVENTION BETWEEN THE UNITED STATES AND JAPAN.
Signed at Tokio November 10, 1905; ratification advised by the
Senate February 28, 1906 ; ratified by the President March
7, 1906; ratified by Japan April 28, 1906; ratifications ex-
changed at Tokio May 10, 1906; proclaimed May 17, 1906.
(Treaties and Proclamations, 2890.)
Treaties and Proclamations, 2890; 34 Stats, at Large, pt. 3.
AETICLES.
I. Reciprocal rights to citizens of II. Translation of books, etc., with-
eaeh country. out authorization.
III. Ratification.
1906.
SUPPLEMENTARY CONVENTION BETWEEN THE UNITED STATES AND
JAPAN FOR THE EXTRADITION OF CRIMINALS.
Signed at Tokio May 17, 1906; ratification advised by the Senate
June 22, 1906; ratified by the President June 28, 1906; rati-
fied by Japan September 22, 1906; ratifications exchanged at
Tokio, September 25, 1906; proclaimed September 26, 1906.
Treaties and Proclamations, 2951; 34 Stats, at Large, pt. 3, p. 2951.
ARTICLE.
I. Extraditable crimes (adding embezzlement and larceny).
KONGO.
(CONGO.)
1884.
DECLARATION AS TO THE INTENTION OF THE INTERNATIONAL Ai
CIATION OF THE CONGO AND THE RECOGNITION OF ITS FLAG
THE UNITED STATES, SIGNED APRIL 22, 1884. (ADVISED BY i
SENATE, APRIL 10, 1884.)
U. S. Treaties 1904, p. 483; 23 Stats, at Large, 781.
APPENDIX II. 703
1891.
TREATY OF AMITY, COMMERCE, AND NAVIGATION.
Concluded January 24, 1891; ratification advised ~by the Sen-
ate January 11, 1892; ratified by the President January 19,
1892; ratifications exchanged February 2, 1892; proclaimed
April 2, 1892.
U. S. Treaties 1904, p. 484; 27 Stats, at Large, 926.
AETICLES.
I. Freedom of commerce and IX. (Not agreed to.)
navigation. X. Import duties.
II. Property rights. XI. Most favored nation privi-
III. Exemptions of service. leges.
IV. Beligious freedom. XII. Other privileges.
V. Consular officers. XIII. Arbitration.
VI. Shipping privileges. XIV. Conditions.
VII. Transportation. XV. Eatification.
VIII. Prohibitions. Senate resolutions of ratification.
KOREA.
( COREA. )
1882.
TREATY OF PEACE, AMITY, COMMERCE AND NAVIGATION.
Concluded May 22, 1882; ratification advised by the Senate Janu-
ary 9, 1883; ratified by the President February 13, 1883; rati-
fications exchanged May 19, 1883; proclaimed June 4, 1883.
(Treaties and Conventions, 1889, p. 216.)
U. S. Treaties 1904, p. 490; 23 Stats, at Large, 720.
AETICLES.
I. Amity. VIII. Exportation of breadstuffs
II. Diplomatic and consular privi- and ginseng prohibited,
leges. IX. Arms and ammunition.
III. Asylum; shipwrecks. X. Employing natives, etc.
IV. Protection in Korea; extrater- XL Privileges to students.
ritoriality. XII. Duration.
V. Shipping dues; imports. XIII. Language of correspondence.
VI. Eesidence and travel. XIV. Most favored nation privi-
VH. Opium traflic. leges; ratification.
704 APPENDIX II.
LEW CHEW.
1854.
COMPACT OF FRIENDSHIP AND COMMERCE.
Concluded July 11, 1854; ratification advised by the Senate March
3, 1855; ratified by the President March 9, 1855; proclaimed
March 9, 1855. (Treaties and Conventions, 1889, p. 629.)
U. S. Treaties 1904, p. 496; 10 Stats, at Large, Treaties, 214.
LIBERIA.
1862.
TREATY OP COMMERCE AND NAVIGATION.
Concluded October 21, 1862; ratification advised by the Senate
January 9, 1863; ratified by the President January 12, 1863;
ratifications exchanged February 17, 1863 ; proclaimed March
18, 1863. (Treaties and Conventions, 1889, p. 631.)
U. S. Treaties 1904, p. 498; 12 Stats, at Large, 1245.
AKTICLES.
I. Amity. VI. Most favored nation privi-
II. Freedom of commerce. leges.
III. No discrimination in vessels. VII. Consuls.
IV. Imports and exports. VIII. Noninterference in Liberia.
V. Shipwrecks and salvage. IX. Eatification.
LUBEC.
(See HANSEATIC REPUBLICS.)
LUXEMBURG.
1883.
EXTRADITION CONVENTION.
Concluded October 29, 1883; ratification advised by the Senai
July 4, 1884; ratified by the President July 5, 1884; ratifica-
tions exchanged July 14, 1884; proclaimed August 12, 1884.
(Treaties and Conventions, 1889, p. 634.)
U. S. Treaties 1904, p. 501; 23 Stats, at Large, 808.
APPENDIX II. 705
ARTICLES.
I. Delivery of accused. VII. Procedure.
II. Extraditable crimes. VIII. Expenses.
III. Trials of persons surrendered. IX. Limitations.
IV. Political offenses. X. Articles in possession of ac-
V. Delivery of citizens. cused.
VI. Persons under arrest. XI. Duration; ratification.
MADAGASCAR.
Madagascar having become a colony of France, the treaties of
1867 and 1881 have become obsolete.
1867.
TREATY OF COMMERCE AND NAVIGATION.
Concluded February 14, 1867 ; ratification advised by the Senate
January 20, 1868; ratified by the President January 24, 1868;
ratifications exchanged July 8, 1868; proclaimed October 1,
1868. (Treaties and Conventions, 1889, p. 638.)
IT. S. Treaties 1904, p. 505; 15 Stats, at Large, 491.
This treaty, consisting of seven articles, was superseded by the
treaty of 1881.
1881.
TREATY* OF FRIENDSHIP AND COMMERCE.
Concluded May 13, 1881; ratification advised by the Senate Febru-
ary 27, 1883; ratified by the President March 10, 1883; ratifi-
cations exchanged March 12, 1883; proclaimed March 13, 1883.
(Treaties and Conventions, 1889, p. 641.)
IT. S. Treaties 1904, p. 505; 22 Stats, at Large, 952.
This treaty, consisting of twelve articles, became obsolete when
the sovereignty of France was extended over Madagascar, and was
replaced by ''the whole of the conventions concluded between
prance and the United States. "—Note of July*22, 1896, from the
French Ambassador to the Secretary of State.
Treaties — 45
706 APPENDIX II.
MASKAT.
(See MUSCAT.)
MECKLENBURG-SCHWERIN.
(See NORTH GERMAN UNION.)
1847.
TREATY OF COMMERCE AND NAVIGATION.
Concluded December 9, 1847 ; ratification advised by the Senate
May 18, 1848; ratified by the President May 20, 1848; pro-
claimed August 2, 1848. (Treaties and Conventions, 1889, p.
653.)
U. S. Treaties 1904, p. 506; 9 Stats, at Large, Treaties, 67.
AETICLES.
I. Freedom of commerce. VII. Most favored nation commer-
II. Coasting trade. cial privileges.
III. No preference to vessels im- VIII. Duties on cotton, rice, to-
porting, bacco and whale-oil.
IV. Shipwrecks. IX. Consular officers and func-
V. Extent of shipping privileges. tions.
VI. Duties on imports and ex- X. Trade and property rights,
ports. XL Duration; increase of duties.
1853.
November 26, 1853, the Grand Duchy of Mecklenburg-Schwerin
acceded to the extradition treaty of 1852 between the United States
and Prussia and other states of the Germanic Confederation.
U. S. Treaties 1904, p. 512; 10 Stats, at Large, Treaties, 105.
MECKLENBURG-STRELITZ.
(See NORTH GERMAN UNION.)
1853.
December 2, 1853, the Grand Duchy of Mecklenburg-Strel
acceded to the extradition treaty of 1852 between the United Sta
and Prussia and other states of the Germanic Confederation.
U. S. Treaties 1907, p. 512; 10 Stats, at Large, Treaties, 104.
APPENDIX II. 707
MEXICO.
1828.
TREATY OF LIMITS.
Concluded January 12, 1828; ratification advised by the Senate
April 4, 1832; ratified by the President April 5, 1832; ratifi-
cations exchanged April 5, 1832; proclaimed April 5, 1832.
(Treaties and Conventions, 1889, p. 661.)
U. S. Treaties 1904, p. 513; 8 Stats, at Large, 372.
This treaty of three articles confirmed the boundaries set out
in the treaty with Spain, 1819, and provided for a commission to
run the line, which was never appointed. The accession of Texas
and the war with the United States and Mexico rendered the treaty
inoperative.
1831.
TREATY OF LIMITS.
Concluded April 5, 1831; ratification advised by the Senate April
4, 1832; ratified by the President April 5, 1832; ratifications
exchanged April 5, 1832; proclaimed April 5, 1832. (Treaties
and Conventions, 1889, p. 663.)
U. S. Treaties 1904, p. 513; 8 Stats, at Large, 376.
This single article extended the time for the exchange of ratifi-
cations of the treaty of 1828, and expired with it.
1831.
TREATY OF AMITY, COMMERCE, AND NAVIGATION.
Concluded April 5, 1831; ratification advised by the Senate March
23, 1832; ratified by the President April 5, 1832; ratifications
exchanged April 5, 1832; proclaimed April 5, 1832. (Treaties
and Conventions, 1889, p. 664.)
U. S. Treaties 1904, p. 513; 8 Stats, at Large, 410.
This treaty of thirty-four articles was suspended during the
war between the United States and Mexico, 1846-47, but was re-
! vived in general by the Treaty of 1848, and finally denounced by
.Mexico November 30, 1881.1
1 See Atocha v. United States, 8 Ct. of Cl. 427.
708 APPENDIX n.
1835.
TREATY OP LIMITS.
Concluded April 3, 1835; ratification advised by the Senate Janu-
ary 26, 1835; ratified ~by the President February 2, 1836; rati-
fications exchanged April 20, 1836; proclaimed April 21, 1836.
(Treaties and Conventions, 1889, p. 675.)
U. S. Treaties 1904, p. 513; 8 Stats, at Large, 464.
This single article extended the time for the appointment of the
commission to fix the boundary provided for in the Treaty of 1828,
but it was never appointed.
1839.
CLAIMS CONVENTION.1
Concluded April 11, 1839; ratification advised by the Senate March
17, 1840; ratified by- the President April 6, 1840; ratifications
exchanged April 7, 1840; proclaimed April 8, 1840. (Treaties
and Conventions, 1889, p. 676.)
IT. S. Treaties 1904, p. 514; 8 Stats, at Large, 526.
By this treaty of fourteen articles a commission of four mem-
bers and an umpire named by the King of Prussia was directed to
be appointed to adjust the claims of United States citizens against
Mexico. The commission held its first session in Washington, D.
C., August 25, 1840, and terminated its duties February 25, 1842.
1843.
CLAIMS CONVENTION.
Concluded January 30, 1843; ratification advised by the Senat
March 2, 1843; ratified by the President; ratifications
changed March 29, 1843; proclaimed March 30, 184i
(Treaties and Conventions, 1889, p. 680.)
U. S. Treaties 1904, p. 514; 8 Stats, at Large, 578.
This treaty of seven articles provided for the payment of tl
awards rendered by the commission under the Treaty of 1839.
1 See Gill v. Olwer's Exrs., 11 How. 529.
APPENDIX II.
709
1848.1
TREATY OF PEACE, FRIENDSHIP, LIMITS, AND SETTLEMENT.
(TREATY OF GUADALUPE HIDALGO.)
Concluded February 2, 1848; ratification advised ~by the Senate,
with amendments, March 10, 1848; ratified by the President
March 16, 1848; ratifications exchanged May 30, 1848; pro-
claimed July 4, 1848. (Treaties and Conventions, 1889, p.
681.)
U. S. Treaties 1904, p. 514; 9 Stats, at Large, Treaties, 108.
AETICLES.
I. Declaration of peace.
II. Suspension of hostilities.
III. Withdrawal of troops, etc.
IV. Kestoration of territory;
evacuations; prisoners.
V. Boundary lines.
VI. Navigation of Gulf of Cali-
fornia and lower Colorado
Eiver.
VII. Navigation of Gila and
Bravo Eivers.
VIII. Inhabitants of ceded terri-
tory.
IX. Acquiring United States
citizenship.
X. (Stricken out.)
XI. Protection against Indians.
XII. Payment for ceded lands.
XIII. Payment of claims awarded
against Mexico.
1 See Cross v. Harrison, 16 How.
;164, 14 L. ed. 889; Judson v. Cor-
;coran, 17 How. 612, 15 L. ed. 231;
McKinney v. Saviego, 18 How. 235,
15 L. ed. 365; United States v. An-
guisola, 1 Wall. 352, 17 L. ed. 613;
United States v. Moreno, 1 Wall.
,400, 17 L. ed. 633; United States
Jv. Yorba, 1 Wall. 412, 17 L. ed.
!635; Townsend v. Greeley, 5 Wall.
1 326, 18 L. ed. 547; In re Atocha, 17
XIV. Discharge of all prior claims.
XV. Ascertainment of outstand-
ing claims.
XVI. Fortifications.
XVII. Eevival of former treaties.
XVIII. Supplies for United States
troops occupying Mexico.
XIX. Imports during United
States occupation.
XX. Duties on imports before
restoration of Mexican cus-
toms authorities.
XXI. Arbitration of future dis-
agreements.
XXII. Eules to be observed in case
of war.
XXIII. Eatification.
Protocol.
Wall. 439, 21 L. ed. 696; Basse v.
Brownsville, 154 U. S. 610, 14 Sup.
CtEep. 1195, 38 L. ed. 651; Boteller
v. Dominguez, 130 U. S. 238, 9 Sup.
Ct. Eep. 525, 32 L. ed. 926; Seabury
v. Field, 1 Me All. 1, Fed. Cas. No.
12,574; Friedman v. Goodwin, 1
Me All. 142, Fed. Cas. No. 5119;
Tobin v. Walkenshaw, 1 Me All. 186,
Fed. Cas. No. 14070; Tripp v.
Spring, 5 Saw. 209, Fed. Cas. No.
710
APPENDIX II.
1853.1
TREATY OF BOUNDARY, CESSION OF TERRITORY, TRANSIT OF ISTHMUS
OF TEHUANTEPEC, ETC.
(GADSDEN TREATY.)
Concluded December 30, 1853; ratification advised by the Senate
with amendments April 25, 1854; ratified by the President
June 29, 1854; ratifications exchanged June 30, 1854; pro-
claimed June 30, 1854. (Treaties and Conventions, 1889, p.
694.)
U. S. Treaties 1904, p. 527; 10 Stats, at Large, Treaties, 123.
ARTICLES.
I. Boundary established; survey,
etc.
II. Eelease of obligations as to
Indians.
III. Payment for territory acquir-
ed.
IV. Navigation of Gulf of Cali-
fornia, Colorado, and Bravo
Rivers.
V. Inhabitants of ceded terri-
tory; fortifications; naviga-
tion and commerce.
VI. Recognition of land grants.
VII. Adjustment of future differ-
ences.
VIII. Transit of Tehauntepec Isth-
mus.
IX. Ratification.
1861.
EXTRADITION TREATY.2
Concluded December 11, 1861; ratification advised by the Senate
with amendment April 9, 1862; ratified by the President April
11, 1862; ratifications exchanged May 20, 1862; proclaimed
June 20, 1862. (Treaties and Conventions, 1889, p. 698.)
U. S. Treaties 1904, p. 531; 12 Stats, at Large, 679.
By notification from the Mexican government the treaty w*
abrogated January 24, 1899.
14,180; Atocha v. United States, 8
Ct.' of Cl. 427; Crystal Springs Land
and Water Co. v. Los Angeles, 76
Fed. 148; In re Eodreguez, 81 Fed.
337; Hooker v. Los Angeles, 188 U.
S. 314, 23 Sup. Ct. Rep. 395, 47 L.
ed. 487; Sena v. United States, 189
U. S. 233, 23 Sup. Ct. Rep. 596, 47
L. ed. 787.
1 See In re Rodriguez, 81 Fed. 337.
2 See Benson v» McMahon, 127
S. 457, 8 Sup. Ct. Rep. 1240, 32
ed. 234; Ornelas v. Ruiz, 161 U.
502, 16 Sup. Ct. Rep. 689, 40 L. e(
787; Ex parte Coy, 32 Fed. 911;
re Benson, 34 Fed. 649; Ex parl
McCabe, 46 Fed. 363, 12 L. R.
589; In re Rowe, 77 Fed. 161, 23
C. A. 103.
APPENDIX II. 711
1868.
CLAIMS CONVENTION.1
Concluded July 4, 1868; ratification advised by the Senate July
25, 1868; ratified ~by the President January 25, 1869; ratifica-
tions exchanged February 1, 1869; proclaimed February 1,
1869. (Treaties and Conventions, 1889, p. 700.)
U. S. Treaties 1904, p. 531 ; 15 Stats, at Large, 679.
Under this convention of seven articles a joint commission was
appointed to consider mutual claims, consisting of one commis-
sioner for each country, who together chose an umpire. The first
meeting took place August 10, 1869, considered to have been held
July 31, 1869. The final session was January 31, 1876. The
awards rendered were: In favor of citizens of the United States.
$4,125,622.20 ; and in favor of citizens of Mexico, $150,498.41.
1868.
NATURALIZATION CONVENTION.2
Concluded July .10, 1868; ratification advised by the Senate July
25, 1868; ratified by the President January 27, 1869; ratifica-
tions exchanged February 1, 1869; proclaimed February 1,
1869. (Treaties and Conventions, 1889, p. 704.)
U. S. Treaties 1904, p. 532; 15 Stats, at Large, 687.
This convention of six articles was terminated February 11, 1882,
upon notification given by Mexico.
1871.
.CLAIMS CONVENTION.
Concluded April 19, 1871; ratification advised by the Senate Decem-
ber 11, 1871; ratified by the President December 15, 1871;
ratifications exchanged February 8, 1872; proclaimed February
8, 1872. (Treaties and Conventions, 1889, p. 705.)
U. S. Treaties 1904, p. 532; 17 Stats, at Large, 861.
1 See Frelinghuysen v. Key, 110 ton v. Elaine, 139 U. S. 306, 11 Sup.
U. S. 63, 3 Sup. Ct. Kep. 462, 28 L. Ct. Eep. 607, 35 L. ed. 183; United
<ed. 71; Ailing v. United States, 114 States ex rel. Key v. Frelinghuy-
•U. S. 562, 5 Sup. Ct. Eep. 1080, 29 L. sen, 2 Maekey (D. C.), 299.
ed. 272; United States ex rel. Boyn- - See In re Rodriguez, 81 Fed. 337.
712 APPENDIX II.
By this convention of two articles the duration of the claims com-
mission organized under the convention of 1868 was extended one
year.
1872.
CLAIMS CONVENTION.
Concluded November 27, 1872; ratification advised by the Senate
with amendment March 9, 1873; ratified by the President
March 10, 1873; ratifications exchanged July 17, 1873; pro-
claimed July 24, 1873. (Treaties and Conventions, 1889, p.
706.)
IT. S. Treaties 1904, p. 532; 18 Stats, at Large, Treaties, 76.
The time for the completion of the labors of the claims commis-
sion under the convention of 1868 was further extended by this
convention for another year.
1874.
CLAIMS CONVENTION.
Concluded November 20, 1874; ratification advised by the Senate
January 20, 1875; ratified by the President January 22, 1875;
ratifications exchanged January 28, 1875 ; proclaimed January
28, 1875. (Treaties and Conventions, 1889, p. 707.)
U. S. Treaties 1904, p. 532; 18 Stats, at Large, Treaties, 149.
The claims commission under the convention of 1868 was still
further extended by this convention for another year.
1876.
CLAIMS CONVENTION.
Concluded April 29, 1876; ratification advised by the Senate May
24, 1876; ratified by the President June 27, 1876; ratifica-
tions exchanged June 29, 1876 ; proclaimed June 29, 1876.
(Treaties and Conventions, 1889, p. 709.)
U. S. Treaties 1904, p. 533; 19 Stats, at Large, Treaties, 86.
APPENDIX II. 713
The functions of the umpire under the convention of 1868 were
extended by this convention of three articles until November 20,
1876, and provision made for the payment of the awards.
1882.
BOUNDARY CONVENTION.
Concluded July 29, 1882; ratification advised by the Senate August
8, 1882; ratified ~by the President January 29, 1883; ratifica-
tions exchanged March 3, 1883; proclaimed March 5, 1883.
(Treaties and Conventions, 1889, p. 711.)
U. S. Treaties 1904, p. 533; 22 Stats, at Large, 986.
(This convention, although temporary in its character, is re-
ferred to because Article IX provides for the punishment of per-
sons destroying or defacing the monuments marking the boundary. )
AKTICLES.
I. Preliminary reconnaissance. VI. Expenses.
II. International Boundary Com- VII. Payment for monuments.
mission authorized. VIII. Duration of commission.
III. Powers of commission. IX. Protection of monuments;
IV. Boundary monuments. ratification.
V. Reports of commission.
1883.
COMMERCIAL RECIPROCITY CONVENTION.
Concluded January 20, 1883; ratification advised ~by the Senate
with amendments March 11, 1884; ratified ~by the President
May 20, 1884; ratifications exchanged May 20, 1884; pro-
claimed June 2, 1884. (Treaties and Conventions, 1889, p.
714.)
U. S. Treaties 1904, p. 536; 24 Stats, at Large, 975.
This convention of ten articles made mutual agreements for the
importation of certain products of each country into the other free
of duty.
Owing to the failure of legislation to carry the convention into
effect it ceased to be operative May 20, 1887.
714 APPENDIX II.
1884.
BOUNDARY CONVENTION, Rio GRANDE AND Rio COLORADO.
Concluded November 12, 1884; ratification advised ~by the Senate
March 18, 1885; modifications consented to by the Senate June
23, 1886; ratified by the President July 10, 1886; ratifications
exchanged September 13, 1886; proclaimed September 14,
1886. (Treaties and Conventions, 1889, p. 721.)
U. S. Treaties 1904, p. 536; 24 Stats, at Large, 1011.
AKTICLES.
I. Boundaries in rivers named. IV. Bridges.
II. Changes. V. Eiparian rights.
III. Artificial changes. VI. Eatification.
1885.
RECIPROCITY CONVENTION.
Concluded February 25, 1885 ; ratification advised by the Senate
March 20, 1885; ratified by the President November 12, 1885;
ratifications exchanged November 27, 1885 ; proclaimed May 4,
1886. (Treaties and Conventions, 1889, p. 722.)
U. S. Treaties 1904, p. 538; 25 Stats, at Large, 1370.
The time for the enactment of legislation to carry into effect the
convention of 1883 was extended by this convention to May 20,
1886.
1885.
BOUNDARY CONVENTION.
Concluded December 5, 1885 ; ratification advised by the Senate
with amendment June 21, 1886 ; ratified by the President
June 23, 1887 ; ratifications exchanged June 27, 1887 ; pro-
claimed June 28, 1887. (Treaties and Conventions, 1889, p.
1189.)
I). S. Treaties 1904, p. 538; 25 Stats, at Large, 1390.
The time for completing the work of the Boundary Commission
authorized under the convention of 1882 was extended eighteen
months by this convention.
APPENDIX II. 715
1886.
RECIPROCITY CONVENTION.
Concluded May 14, 1886 ; ratification advised by the Senate Janu-
ary 7, 1887 ; ratified by the President January 24, 1887; ratifi-
cations exchanged January 29, 1887 ; proclaimed February 1,
1887. (Treaties and Conventions, 1889, p. 1190.)
IT. S. Treaties 1904, p. 539; 24 Stats, at Large, 1018.
The time for the enactment of legislation to carry the convention
of 1883 into effect was further extended by this convention to May
20, 1887.
1889.
BOUNDARY CONVENTION.
Concluded February 18, 1889; ratification advised by the Senate
March 26, 1889; ratified by the President April 30, 1889; ratifi-
cations exchanged October 12, 1889; proclaimed October 14,
1889.
U. S. Treaties 1904, p. 539; 26 Stats, at Large, 1493.
Owing to the failure to appoint the commission authorized by
the convention of 1882, within the time specified, as extended
by the convention of 1885, it ceased to have effect. By this con-
vention the provisions of the convention of 1882 were revived for
a period of five years from the date of the exchange of ratifications.
1889.
BOUNDARY CONVENTION.
Concluded March 1, 1889; ratification advised by the Senate May 7,
1890; ratified by the President December 6, 1890; ratifications
exchanged December 24, 1890; proclaimed December 26, 1890.
U. S. Treaties 1904, p. 539; 26 Stats, at Large, 1512.
716 APPENDIX II.
AETICLES.
I. International Boundary Com- banks of Colorado and Bio
mission authorized. Grande.
II. Composition. VI. Examinations.
III. Meetings of Commission. VII. Jurisdiction.
IV. Duties. VIII. Decisions.
V. Investigation of works on IX. Ratification.
1894.
BOUNDARY CONVENTION.
Concluded August 24, 1894; ratification advised ~by the Senate
August 27, 1894; ratified by the President September 1, 1894:
ratifications exchanged October 11, 1894; proclaimed October
18, 1894.
U. S. Treaties 1904, p. 542; 28 Stats, at Large, 841.
The period for the completion of the work of the Boundary Com-
mission under convention of 1889 was extended by this conven-
tion two years from October 11, 1894.
1895.
BOUNDARY CONVENTION.
Concluded October 1, 1895; ratification advised by the Senate
December 17, 1895; ratified by the President December 20,
1895; ratifications exchanged December 21, 1895; proclaimed
December 21, 1895.
U. S. Treaties 1904, p. 542; 29 Stats, at Large, 841.
The duration of the convention of 1889 was extended one year
by this convention.
1896.
BOUNDARY CONVENTION.
Concluded November 6, 1896 ; ratification advised by the Senate
December 10, 1896; ratified by the President December 15,
1896 ; ratifications exchanged December 23, 1896 ; proclaimed
December 23, 1896.
U. S. Treaties 1904, p. 542; 29 Stats, at Large, 857.
The convention of 1889 was further extended to December 24
1897, by this convention.
APPENDIX II. 717
1897.
BOUNDARY CONVENTION.
Concluded October 29, 1897 ; ratification advised by the Senate
December 16, 1897 ; ratified by the President December 20,
1897 ; ratifications exchanged December 21, 1897 ; proclaimed
December 21, 1897.
U. S. Treaties 1904, p. 543; 30 Stats, at Large, 1625.
This convention further extended the duration of the convention
of 1889 to December 24, 1898.
1898.
BOUNDARY CONVENTION.
Concluded December 2, 1898; ratification advised by the Senate
December 8, 1898; ratified by the President December 12,
1898; ratifications exchanged February 2, 1899; proclaimed
February 3, 1899.
U. S. Treaties 1904, p. 543; 30 Stats, at Large, 1744.
The convention of 1889 was again extended one year by this
convention.
1899.
EXTRADITION TREATY.
Concluded February 22, 1899; ratification advised by Senate March
2, 1899; ratified by President March 8, 1899; ratifications ex-
changed April 22, 1899; proclaimed April 24, 1899.
IT. S. Treaties 1904, p. 543; 31 Stats, at Large, 1818.
AKTICLES.
I. Delivery of accused. XII. ,Prior offenses.
II. Extraditable offenses. XIII. Trial; punishment; third
III. Nonextradition. country.
IV. Nondelivery of citizens. XIV. Expenses.
V. Deferring extradition. XV. Property found on fugitive.
VI. Persons claimed by other coun- XVI. Transit over territory of
tries. third country.
VII. Political offenses. XVII. Crimes by citizens of one
VIII. Procedure. against other contracting
IX. Frontier States. power.
X. Provisional detention. XVIII. Effect.
XI. Officers surrendering govern- XIX. Duration; ratification,
ment.
718 APPENDIX II.
1899.
BOUNDARY CONVENTION.
Concluded December 22, 1899; ratification advised by Senate Feb-
ruary 8, 1900; ratified by President February 14, 1900; ratifi-
cations exchanged May 5, 1900; proclaimed May 7, 1900.
IT. S. Treaties 1904, p. 550.
This convention further extended the duration of the convention
of March 1, 1889, for one year.
1900.
WATER BOUNDARY CONVENTION.
Concluded November 21, 1900; ratification advised by Senate De-
cember 15, 1900; ratified by President December 24, 1900;
ratifications exchanged December 24, 1900; proclaimed Decem-
ber 24, 1900.
U. S. Treaties 1904, p. 550; 31 Stats, at Large, 1936.
1902.
SUPPLEMENTARY EXTRADITION CONVENTION.
Concluded June 25, 1902; ratification advised by Senate March 11,
1903; ratified by President March 18, 1903; ratifications ex-
changed March 28, 1903; proclaimed April 3, 1903.
U. S. Treaties 1904, p. 551.
ARTICLE.
Extraditable offense; bribery.
1906.
CONVENTION BETWEEN THE UNITED STATES AND MEXICO PROVIDING
FOR THE EQUITABLE DISTRIBUTION OF THE WATERS OF
Rio GRANDE FOR IRRIGATION PURPOSES.
Signed at Washington May 21, 1906; ratification advised by tin
Senate June 26, 1906 ; ratified by the President December 2t
1906; ratified by Mexico January 5, 1907 ; ratifications ex-
changed at Washington, January 16, 1907 ; proclaimed Janu-
ary 16, 1907. .
Treaties and Proclamations, 2953; 34 Stats, at Large, pt. 3, p. 2953.
APPENDIX II. 719
MOROCCO.
1787.
TREATY OF PEACE AND FRIENDSHIP.
Concluded January, 1787; ratified by the Continental Congress
July 18, 1787. (Treaties and Conventions, 1889, p. 724.)
U. S. Treaties 1904, p. 553; 8 Stats, at Large, 100.
This treaty of twenty-six articles, negotiated by Thos. Barclay
and signed by John Adams and Thorn. Jefferson, was superseded
by the following Treaty of 1836.
1836.
TREATY OF PEACE AND FRIENDSHIP.
Concluded September 16, 1836 ; ratification advised by the Senate
January 17, 1837 ; ratified by the President January 28, 1837 ;
proclaimed January 30, 1837. (Treaties and Conventions,
1889, p. 729.)
U. S. Treaties 1904, p. 553; 8 Stats, at Large, 484.
ARTICLES.
I. Emperor's consent. XVI. Exchange of prisoners.
II. No service with an enemy. XVII. Trade privileges.
III. Captures. XVIII. Examination of exports.
IV. Ships' passports. XIX. No detention, etc., of vessels.
V. Eight of search. XX. Consul to decide disputes in
VI. Eelease of captives. Morocco.
VII. Supplies to vessels. XXI. Trials of homicides and as-
VIII. Eepairs to vessels. saults.
IX. Shipwrecks. XXII. Estates of deceased Ameri-
X. Protection of warships. cans.
XI. Immunities of ports. XXIII. Consular privileges.
XII. Freedom of warships. XXIV. Agreement in case of differ-
XIII. Salutes. ences; most favored na-
XIV. Most favored nation com- tion privileges.
merce. XXV. Duration.
XV. Privileges to merchants.
720
APPENDIX II.
1865.
CONVENTION AS TO CAPE SPARTEL LIGHTHOUSE.
Concluded between the United States, Austria, Belgium, France,
Great Britain, Italy, the Netherlands, Portugal, Spain, and
Sweden and Norway, and Morocco, May 31, 1865 ; ratification
advised by the Senate July 5, 1866 ; ratified by the President
July 14, 1866; ratifications exchanged February 14, 1867; pro-
claimed March 12, 1867. (Treaties and Conventions, 1889, p.
734)
IT. S. Treaties 1904, p. 558; 14 Stats, at Large, 679.
AETICLES.
I. Administration of the light-
house.
II. Expense of maintenance.
III. Protection.
IV. Management.
V. Duration.
VI. Regulations.
VII. Ratification.
1880.
CONVENTION AS TO PROTECTION.
Concluded between the United States, Germany, Austria, Belgium,
Denmark, Spain, France, Great Britain, Italy, the Netherlands,
Portugal and Sweden and Norway and Morocco, July 3, 1880;
ratification advised by the Senate May 5, 1881; ratified ~by the
President May 10, 1881; proclaimed December 21, 1881.
(Treaties and Conventions, 1889, p. 737.)
U. S. Treaties 1904, p. 561; 22 Stats, at Large, 817.
AETICLES.
I. Conditions of protection.
II. Employees of legations.
III. Consular employees.
IV. Diplomatic rights; suits; pros-
ecutions.
V. Native consular agents.
VI. Extent of protection.
VII. Names to be furnished by le-
gations.
VIII. Names to be furnished by con-
sulates.
IX. Classes not protected.
X. Brokers.
XT. Property rights.
XII. Agricultural tax.
XIII. Gate tax.
XIV. Mediation of native employ
ees. .
XV. Naturalization.
XVI. Limitation of protection.
XVII. Most favored nation treat
ment.
XVIII. Ratification.
APPENDIX II. 721
1899.
AGREEMENT BY EXCHANGE OF NOTES WITH GREAT BRITAIN FOR THE
PROTECTION OF TRADEMARKS IN MOROCCO-
Concluded December 6, 1899.
U. S. Treaties 1904, p. 567.
1901.
AGREEMENT BY EXCHANGE OF NOTES WITH GERMANY FOR THE
RECIPROCAL PROTECTION OF TRADEMARKS IN MOROCCO.
Concluded September 28 — October 8, 1901.
U. S. Treaties 1904, p. 569.
MUSCAT.
1833.
TREATY OF AMITY AND COMMERCE.-
Concluded September 21, 1833; ratification advised by the Senate
June 23, 1834; ratified by the President; ratifications ex-
changed September 30, 1835; proclaimed June 24, 1837.
F( Treaties and Conventions, 1889, p. 744.)
U. S. Treaties 1904, p. 570; 8 Stats, at Large, 458.
This treaty was accepted by the Sultan of Zanzibar after the
separation of that state from Muscat, and its Article III is amended
by the treaty of June 5, 1903, between the United States and
Great Britain, acting in the name of the Sultan of Zanzibar.
ARTICLES.
I. Peace. VII. Captures by pirates.
II. Freedom of trade. VIII. Shipping charges in the United
III. Duties payable by American States.
ships. IX. Consular powers and immuni-
IV. Duties, licenses and charges. ties.
V. Shipwrecks. Ratification.
VI. Exemption from tax on trade.
Treaties — 46
722 APPENDIX II.
NASSAU.
(See PRUSSIA.)
1846.
CONVENTION ABOLISHING DROIT D'AUBAINE AND EMIGRATION TAXES.
Concluded May 27, 1846 ; ratification advised by the Senate July
21, 1846; ratified by the President July 23, 1846 ; ratifications
exchanged October 13, 1846 ; proclaimed January 26, 1847.
(Treaties and Conventions, 1889, p. 747.)
U. S. Treaties 1904, p. 573; 9 Stats, at Large, Treaties, 48.
Nassau was merged with Prussia by conquest 1866.
NETHERLANDS.
1782.
TREATY OF PEACE AND COMMERCE.
Concluded October 8, 1782; ratified by the Continental Congress
January 22, 1783. (Treaties and Conventions, 1889, p. 749.)
U. S. Treaties 1904, p. 574; 8 Stats, at Large, 32.
This treaty of twenty-nine articles was abrogated by the over-
throw of the Netherlands government in 1795.
1782.
CONVENTION RELATIVE TO RECAPTURED VESSELS.
Concluded October 8, 1782; ratified by the Continental Congress
January 23, 1783. (Treaties and Conventions, 1889, p. 759.)
U. S. Treaties 1904, p. 574; 8 Stats, at Large, 50.
This convention of six articles was abrogated by the overthrow
of the Netherlands government in 1795.
APPENDIX II. 723
1839.
TREATY OF COMMERCE AND NAVIGATION.
Concluded January 19, 1839; ratification advised by the Senate
January 31, 183.9; ratified by the President February 1, 1839 ;
ratifications exchanged May 23, 1839; proclaimed May 24,
1839. (Treaties and Conventions, 1889, p. 761.)
U. S. Treaties 1904, p. 574; 8 Stats, at Large, 524.
AETICLES.
I. Import and export duties, draw- IV. Nationality of ships.
backs, etc. V. Shipwrecks.
II. Shipping charges. VI. Duration.
HF. Consular officers. VII. Ratification.
1852.
CONVENTION OF COMMERCE AND NAVIGATION.
Concluded August 26, 1852; ratification advised by the Senate Feb-
ruary 17, 1853; ratified by the President February 21, 1853 ;
ratifications exchanged February 25, 1853; proclaimed Feb-
ruary 26, 1853. (Treaties and Conventions, 1889, p. 763.)
U. S. Treaties 1904, p. 576; 10 Stats, at Large, Treaties, 66.
AETICLES.
I. Import and export duties, boun- IV. Coasting trade and fisheries.
ties, drawbacks, etc. V. Discriminations in favor of di-
ll. Trade with colonies of the Neth- rect trade.
erlands. VI. Duration and extent.
III. Shipping dues. VII. Ratification.
1855.
CONSULAR CONVENTION.
Concluded January 22. 1855; ratification advised by the Senate
March 3, 1855 ; ratified btj the President March 5, 1855 ; rati-
fications exchanged May 25, 1855 ; proclaimed May 26. 1855.
(Treaties and Conventions, 1889, p. 765.)
U. S. Treaties 1904, p. 578.
724 APPENDIX II.
By this convention consuls were received into the colonies of the
Netherlands. It was abrogated August 20, 1879, being superseded
by the convention of 1878.
1878.
CONSULAR CONVENTION.
Concluded May 23, 1878; ratification advised by the Senate June
6, 1878; ratified by the President June 21, 1878; time for ex-
change of ratifications extended by the Senate January 29,
1879, and May 8, 1879; ratifications exchanged July 31, 1879;
proclaimed August 1, 1879. (Treaties and Conventions, 1889,
p. 769.)
U. S. Treaties 1904, p. 579; 21 Stats, at Large, 662.
AETICLES.
I. Consular officers authorized. IX. Communication with authori-
II. Commissions and exequaturs. ties.
III. Exemptions and privileges. X. Eights of consular officers.
IV. Testimony by consular offi- XI. Settlement of shipping dis-
cers. putes.
V. Arms and flags. XII. Deserters from ships.
VI. Inviolability of archives. XIII. Damages at sea.
VII. Acting consular officers. XIV. Shipwrecks and salvage.
VIII. Vice-consular officers and XV. Notification of deaths,
agents. XVI. Duration.
XVII. Eatification.
1880.
EXTRADITION CONVENTION.
Concluded May 22, 1880; ratification advised by the Senate June
15, 1880; ratified by the President June 25, 1880; ratifications
exchanged June 29, 1880; proclaimed July 30, 1880. (Treaties
and Conventions, 1889, p. 775.)
U. S. Treaties 1904, p. 584; 21 Stats, at Large, 769.
This convention of twelve articles was superseded by the Conven-
tion of 1887.
APPENDIX II. 725
1883.
TRADEMARKS.
EXCHANGE OF NOTES BETWEEN THE NETHERLANDS LEGATION AND
THE DEPARTMENT OF STATE.
Dated February 10, 1883, and February 16, 1883.
U. S. Treaties 1904, p. 584.
1887.
EXTRADITION CONVENTION.
Concluded June 2, 1887 ; ratification advised by the Senate March
26, 1889; ratified by the President April 17, 1889; ratifications
exchanged May 31, 1889; proclaimed June 21, 1889.
U. S. Treaties 1904, p. 586; 26 Stats, at Large, 1481.
AETICLES.
I. Delivery of accused. VIIL Nondelivery of citizens.
II. Extraditable crimes. IX. Expenses.
III. Political offenses. X. Articles found on fugitives.
IV. Eestrictions on trials. XI. Procedure.
V. Exemptions. XII. Provisional arrest and deten-
VI. Persons under arrest in country tion.
where found. XIII. Duration; ratification.
VII. Persons claimed by two or
more powers.
EXTRADITION WITH THE NETHERLANDS.
1904.
EXTRADITION.
Concluded January 18, 1904; ratification advised by Senate Janu-
ary 27, 1904; ratified by the President May 26, 1904; ratifica-
tions exchanged May 28, 1904; proclaimed May 31, 1904.
U. S. Treaties 1904, p. 950; 33 Stats, at Large, 2257.
726 APPENDIX II.
AETICLES.
I. Convention applicable to posses- IV. Amendatory of the treaty of
sions and colonies. June 2, 1887.
II. Extraditable crimes. V. Provisional arrest and detention.
III. Procedure. VI. Duration; ratification.
NICARAGUA.
1867.
TREATY OF FRIENDSHIP, COMMERCE, AND NAVIGATION, AND AS TO
ISTHMIAN TRANSIT.
Concluded June 21, 1867 ; ratification advised by the Senate Janu-
ary 20, 1868; ratified by the President February 7, 1868; ratifi-
cations exchanged June 20, 1868; proclaimed August 13, 1868.
(Treaties and Conventions, 1889, p. 779.)
U. S. Treaties 1904, p. 591; 15 Stats, at Large, 549.
This treaty, containing twenty-one articles, denounced by Nica-
ragua to take effect October 24, 1902.
1870.
EXTRADITION CONVENTION.
Concluded June 25, 1870; ratification advised by the Senate with
amendments March 31, 1871; ratified by the President April 11.
1871; ratifications exchanged June 24, 1871; proclaimed Sep-
tember 19, 1871. (Treaties and Conventions, 1889, p. 787.)
U. S. Treaties 1904, p. 591; 17 Stats, at Large, 815.
This treaty, containing seven articles, denounced by Nicaraguj
to take effect April 24, 1902.
1900.
PROTOCOL WITH NICARAGUA FOR THE CONSTRUCTION OF AN INTEI
OCEANIC CANAL.
Concluded December 1, 1900.
U. S. Treaties 1904, p. 591.
APPENDIX II. 727
NORTH GERMAN UNION.
(See, also, GERMAN EMPIRE AND PRUSSIA.)
1868.
NATURALIZATION CONVENTION.
Concluded February 22, 1868; ratification advised by the Senate
with amendment March 26, 1868; ratified by the President
March 30, 1868; ratifications exchanged May 9, 1868; pro-
claimed May 27, 1868. (Treaties and Conventions, 1889, p.
790.)
IT. S. Treaties 1904, p. 592; 15 Stats, at Large, 615.
ARTICLES.
I. Naturalization recognized. IV. Renunciation of naturalization.
II. Punishment for offenses prior to V. Duration.
naturalization. VI. Ratification.
III. Extradition.
NORWAY.
(See SWEDEN AND NORWAY.)
1893.
EXTRADITION CONVENTION.
Concluded June 7 , 1893; ratification advised by the Senate Novem-
ber 1, 1893 ; ratified by the President November 3, 1893; ratifi-
cations exchanged November 8, 1893; proclaimed November 9,
1893.
28 Stats, at Large, 1187.
ARTICLES.
I. Delivery of accused. VIII. Prior offenses.
II. Extraditable crimes. IX. Property seized with fugi-
III. Procedure. tives.
IV. Provisional detention. X. Persons claimed by other
V. Nondelivery of citizens. countries.
VI. Political offenses. XI. Expenses.
VII. Limitations. XII. Duration; ratification.
728 APPENDIX II.
1904.
TREATY BETWEEN THE UNITED STATES AND NORWAY AMENDING THE
EXTRADITION TREATY OF JUNE 7, 1893, BETWEEN THE Two
COUNTRIES.
Signed at Washington December 10, 1904; ratification advised by
the Senate January 6, 1905; ratified by the President April
1, 1905; ratified by Sweden and Norway February 3, 1905 ;
ratifications exchanged at Washington April 4, 1905; pro-
claimed April 6, 1905.
Treaties and Proclamations, 2865; 34 Stats, at Large, pt. 3, p. 2865.
AETICLES.
I. Extradition of accessories from II. Exchange of ratifications.
Norway.
OLDENBURG.1
The Duchy of Oldenburg became incorporated in the North Ger-
man Union 1867. On March 10, 1847, it acceded to the treaty of
commerce and navigation concluded with the Kingdom of Hanover
June 10, 1846, and December 30, 1853, it acceded to the extradition
treaty with Prussia and other Germanic States concluded June 16,
1852.
U. S. Treaties 1904, p. 598.
ORANGE FREE STATE.
1871.
CONVENTION OF FRIENDSHIP, COMMERCE, AND EXTRADITION.
Concluded December 22, 1871; ratification advised by the Senatt
April 3-4, 1872; ratified by the President April 27, 1872; ratifi-
cations exchanged August 18, 1873; proclaimed August 23,
1873. (Treaties and Conventions, 1889, p. 794.)
0. S. Treaties 1904, p. 599; 18 Stats, at Large, Treaties, 65.
By notification from the government of the Orange Free State
this convention of fourteen articles was denounced January 4, 1895.
1 See declaration of accession of of June 16, 1852, in 10 Stats, at
treaty of March 10, 1846, in 9 Stats. Large, Treaties, 105.
at Large, Treaties, 66, and of treaty
APPENDIX II. 729
1896.
EXTRADITION TREATY.
Concluded October 28, 1896 ; ratified ~by the Senate January 28,
1897 ; ratified by the President February 21, 1899; ratifications
exchanged April 20, 1899; proclaimed April 21, 1899.
U. S. Treaties 1904, p. 599; 31 Stats, at Large, 1813.
This treaty, containing twelve articles, was terminated by the
conquest of the Orange Free State and its incorporation into the
British Empire.
OTTOMAN EMPIRE.1
(TURKEY.)
1830.
TREATY OF COMMERCE AND NAVIGATION.
Concluded May 7, 1830; ratification advised and time for exchange
kof ratifications extended by the Senate February 1, 1831; rati-
fied by the President February 2, 1831; ratifications exchanged
October 5, 1831; proclaimed February 4, 1832. (Treaties and
Conventions, 1889, p. 798.)
U. S. Treaties 1904, p. 600; 8 Stats, at Large, 408.
(The text printed is a translation from the original treaty, which
was in the Turkish language. Differences of opinion as to the true
meaning of certain portions have been the subject of diplomatic
correspondence without reaching an accord.)
AETICLES.
I. Trade privileges. V. Use of United States flag.
U. Consular officers. VI. War vessels.
III. Treatment of United States VII. Navigation of the Black Sea.
merchants and vessels. VIII. Ships not to be impressed.
IV. Judicial treatment of United IX. Shipwrecks.
States citizens. Eatification.
1 See Dainese v. Hale, 91 U. S. 13, Dainese v. United States, 15 Ct. of
23 L. ed. 190, 1 McAr. (D. C.) 86; Cl. 64.
730 APPENDIX n.
1862.
TREATY OF COMMERCE AND NAVIGATION.
Concluded February 25, 1862; ratification advised by the Senate
April 9, 1862; ratified by the President April 18, 1862; ratifi-
cations exchanged June 5, 1862; proclaimed July 2, 1862.
(Treaties and Conventions, 1889, p. 800.)
U. S. Treaties 1904, p. 602; 12 Stats, at Large, 1213.
This treaty of twenty-three articles it is contended has been
abrogated upon notice given by the Turkish government, to date
from June 5, 1884. (See notes, Treaties and Conventions, 1889, p.
1372.)
1874.
EXTRADITION TREATY.
Concluded August 11, 1874; ratification advised by the Senate Jan-
uary 20, 1875 ; ratified by the President January 22, 1875; rati-
fications exchanged April 22, 1875 ; proclaimed May 26, 1875.
(Treaties and Conventions, 1889, p. 821.)
TJ. S. Treaties 1904, p. 603; 19 Stats, at Large, Treaties, 16.
AETICLES.
I. Surrender of accused. V. Procedure.
II. Extraditable crimes. VI. Expenses.
III. Political offenses. VII. Nondelivery of citizens.
IV. Persons under arrest. VIII. Duration; ratification.
PANAMA.
1903.
CONVENTION FOR THE CONSTRUCTION OF A SHIP CANAL.
Concluded November 18, 1903 ; ratification advised by the Senate
February 23, 1904; ratified by the President February 25, 1904;
ratifications exchanged February 26, 1904; proclaimed Febru-
ary 26, 1904.
II. S. Treaties 1904, p. 609; 33 Stats, at Large, pt. 2, p. 2234.
APPENDIX II.
731
AETICLES.
I. Independence of Panama. XV.
II. Canal zone. XVI.
III. Authority in canal zone. XVII.
IV. Subsidiary rights. XVIII.
V. Monopoly for construction, XIX.
etc. XX.
VI. Private property.
VII. Panama; Colon; harbors. XXI.
VIII. Panama Canal Company and
railroad. XXII.
IX. Ports at entrance of canal.
X. Taxes, etc. XXIII.
XI. Official dispatches. XXIV.
XII. Access of employees.
XIII. Importation into zone. XXV.
XIV. Compensation. XXVI.
Joint commission.
Extradition.
Ports of Panama.
Neutrality rules.
Free transport.
Cancellation of existing
treaties.
Anterior debts, concessions,
etc.
Renunciation of rights under
concessionary contracts.
Protection of canal.
Change in government, laws,
etc.
Coaling stations.
Ratification.
1904.
TREATY BETWEEN THE UNITED STATES AND PANAMA FOR THE
MUTUAL EXTRADITION OF CRIMINALS.
Signed at the City of Panama May 25, 1904; ratification advised
by the Senate January 6, 1905 ; ratified by the President Jan-
nary 20, 1905 ; ratified by Panama May 25, 1904; ratifications
exchanged at City of Panama April 8, 1905; proclaimed May
12, 1905.
Treaties and Proclamations, 2851; 34 Stats, at Large, pt. 3.
ARTICLES.
I. Reciprocal delivery of persons
charged with crime.
II. Extraditable crimes.
III. Requisitions.
IV. Application for provisional ar-
rest.
V. Neither country bound to de-
liver up its own citizens.
VI. No surrender for political of-
fenses.
VII. No delivery if trial barred by
limitation.
VIII. Trial to be only for offense
for which extradited.
IX. Disposal of articles seized
with person.
X. Persons claimed by other
countries.
XI. Expenses.
XII. Effect.
Ratification.
732
APPENDIX II.
PARAGUAY.
1859.
CLAIMS CONVENTION.
Concluded February 4, 1859; ratification advised ~by the Senate Feb-
ruary 16, 1860; ratified by the President March 7, 1860; rati-
fications exchanged March 7, 1860; proclaimed March 12, 1860.
(Treaties and Conventions, 1889, p. 828.)
U. S. Treaties 1904, p. 617; 12 Stats, at Large, 1087.
By this convention the claim of the United States and Paraguay
Navigation Company against Paraguay was submitted to a com-
mission of two, who met in Washington June 22, I860, and ad-
journed August 13, 1860, deciding against the claim.
1859.
TREATY OF FRIENDSHIP, COMMERCE, AND NAVIGATION.
Concluded February 4, 1859 ; ratification advised by the Senate
February 27, 1860; ratified by the President March 7, 1860;
ratifications exchanged March 7, 1860; proclaimed March 12,
1860. (Treaties and Conventions, 1889, p. 830.)
U. S. Treaties 1904, p. 617; 12 Stats, at Large, 1091.
AETICLES.
I. Friendship.
II. Freedom of navigation.
III. Most favored nation commer-
cial privileges.
IV. No discriminations of imports
and exports.
V. Shipping dues.
VI. Carrying trade.
VII. Nationality of vessels.
VIII. Import and export duties.
IX. Trade privileges.
X. Property rights; estates of de-
ceased persons.
XI. Exemption from military sei
vice, etc.
XH. Diplomatic and consuJ
privileges.
XIII. Agreement in case of war.
XIV. Protection of property;
ligious freedom, etc.
XV. Duration.
XVI. Eatification.
APPENDIX II. 733
PERSIA.
1856.
TREATY OF FRIENDSHIP AND COMMERCE.1
Concluded December 13, 1856; ratification advised by the Senate
March 10, 1857 ; ratified ~by the President March 12, 1857 ; rati-
fications exchanged June 13, 1857 ; proclaimed August 18, 1857.
(Treaties and Conventions, 1889, p. 836.)
IT. S. Treaties 1904, p. 622; 11 Stats, at Large, 709.
ARTICLES.
I. Friendship. V. Trials of suits and offenses.
II. Diplomatic privileges. VI. Effects of deceased persons.
IH. Most favored nation protec- VII. Diplomatic and consular privi-
tion. leges.
IV. Import and export duties. VIII. Duration; ratification.
PERU.
1841.
CLAIMS CONVENTION.
Concluded March 17, 1841; ratification advised by the Senate Janu-
ary 5, 1843; ratified by the President January 12, 1843; ratifi-
cation exchanged July 22, 1843; proclaimed February 21, 1844;
modification consented to and time for exchange of ratifications
extended by the Senate May 29, 1846; ratifications again ex-
changed October 31, 1846 ; proclaimed January 8, 1847.
(Treaties and Conventions, 1889, p. 850.)
U. S. Treaties 1904, p. 626; 8 Stats, at Large, 570.
By this convention Peru agreed to pay to the United States in
settlement of claims which had been presented by citizens of the
United States the sum of $300,000. The claims were adjudicated
by the attorney general, and the final report was made August 7,
1847, allowing claims amounting to $421,432.41.
1 See Powers v. Comly, 101 U. S. 789, 25 L. ed. 805.
734 APPENDIX II.
1851.
TREATY OF FRIENDSHIP, COMMERCE, AND NAVIGATION.
Concluded July 26, 1851; ratification advised by the Senate June
23, 1852; ratified by the President July 16, 1852; ratifications
exchanged July 16, 1852; proclaimed Jidy 19, 1852. (Treaties
and Conventions, 1889, p. 852.)
U. S. Treaties 1904, p. 626; 10 Stats, at Large, Treaties, 28.
This treaty, consisting of forty articles, was terminated Decem-
ber 9, 1863, upon notice given by Peru.
1856.
CONVENTION DECLARING THE PRINCIPLES OF THE RIGHTS OF
NEUTRALS AT SEA.
Concluded July 22, 1856 ; ratification advised by the Senate March
12, 1857 ; ratified by the President October 2, 1857 ; ratifica-
tions exchanged October 31, 1857 ; proclaimed November 2,
1857. (Treaties and Conventions, 1889, p. 864.)
U. S. Treaties 1904, p. 626; 11 Stats, at Large, 695.
ARTICLES.
I. Principles of neutral property III. Extension of neutral rights,
rights. TV. Accession of other countries.
II. Former treaty provisions an- V. Duration; ratification,
nulled.
1857.
CONVENTION INTERPRETING ARTICLE XII, TREATY OF 1851.
(Whaling ships.)
Concluded July 4, 1857 ; ratification advised by the Senate Apt
30, 1858; ratified by the President May 7, 1858; ratificatic
exchanged October 13, 1858; proclaimed October 14, 185(
(Treaties and Conventions, 1889, p. 886.)
U. 8. Treaties 1904, p. 628; 11 Stats, at Large, 725.
By this convention amendment was made to Article XII of th<
Treaty of 1851 in respect to the supplies to whaling ships. Th<
convention terminated December 9; 1863, with the Treaty of 1851
APPENDIX II. 735
1862.
CLAIMS CONVENTION.
Concluded December 20, 1862; ratification advised ~by the Senate
February 18, 1863; ratified by the President February 24,
1863 ; ratifications exchanged April 21, 1863; proclaimed May
19, 1863. (Treaties and Conventions, 1889, p. 868.)
U. S. Treaties 1904, p. 628; 13 Stats, at Large, 635.
The claims presented against Peru by the United States for the
alleged illegal capture of the vessels "Lizzie Thompson" and
*' Georgianna" were by this convention referred to the arbitration
of the King of Belgium, who declined to act, and the cases were
dropped.
1863.
CLAIMS CONVENTION.
Concluded January 12, 1863; ratification advised by the Senate
with amendment February 18, 1863; ratified by the President
February 24, 1863; ratifications exchanged April 18, 1863;
proclaimed May 19, 1863. (Treaties and Conventions, 1889.
p. 870.)
U. S. Treaties 1904, p. 629; 13 Stats, at Large, 639.
By this convention of ten articles a commission of five was au-
thorized, which met at Lima July 17, 1863, and completed their
duties November 27, 1863. The awards against the United States
were $25,300, and against Peru $57,196.23.
1868.
CLAIMS CONVENTION.
Concluded December 4, 1868; ratification advised by the Senate
April 15, 1869; ratified by the President May 3, 1869; ratifica-
tions exchanged June 4, 1869; proclaimed July 6, 1869.
(Treaties and Conventions, 1889, p. 872.)
U. S. Treaties 1904, p. 629; 16 Stats, at Large, 751.
This convention provided for the adjudication of mutual claims
by two commissioners, who each selected an umpire. The com-
736 APPENDIX II.
mission met at Lima September 4, 1869, and adjourned February
26, 1870. The awards against the United States were $57,040, and
against Peru, $194,417.62.
1870.
TREATY OF FRIENDSHIP, COMMERCE, AND NAVIGATION.
Concluded September 6, 1870; ratification advised by the Senate
March 31, 1871; ratified by the President April 11, 1871; time
for exchange of ratifications extended June 5, 1873; ratifica-
tions exchanged May 28, 1874; proclaimed July 27, 1874.
(Treaties and Conventions, 1889, p. 876.)
U. S. Treaties 1904, p. 629; 18 Stats, at Large, Treaties, 35.
This treaty of thirty-eight articles terminated on notice given by
Peru March 31, 1886.
1870.1
EXTRADITION TREATY.
Concluded September 12, 1870; ratification advised by the Senate
March 31, 1871; ratified by the President April 11, 1871; time
for exchange of ratifications extended June 5, 1873; ratifica-
tions exchanged May 28, 1874; proclaimed July 27, 1874.
(Treaties and Conventions, 1889, p. 888.)
U. S. Treaties 1904, p. 629; 18 Stats, at Large, Treaties, 35.
This treaty of ten articles terminated March 31, 1886, on notice
given by Peru.
1887.
TREATY OF FRIENDSHIP, COMMERCE, AND NAVIGATION.
Concluded August 31, 1887 ; ratification advised by the Senat(
with amendment May 10, 1888; ratified by the President June
6, 1888; ratifications exchanged October 1, 1888; proclaimed
November 7, 1888. (Treaties and Conventions, 1889, p. 1191.)
IT. S. Treaties 1904, p. 630; 25 Stats, at Large, 1444.
This treaty, containing thirty-five articles, terminated Novembei
1, 1899, by notification from Peru, October 8, 1898.
*See Ker v. Illinois, 119 U. S. 421; Ex parte Ker, 18 Fed. 167.
436, 7 Sup. Ct. Rep. 225, 30 L. ed.
APPENDIX II. 737
1889.
EXTRADITION TREATY.
Concluded November 28, 1899; ratified by the Senate February 8,
1900; ratified by the President November 23, 1900 ; ratifications
exchanged January 23, 1901; proclaimed January 29, 1901.
31 Stats, at Large, 1921.
AKTICLES.
I. Delivery of accused. VIII. Extradition deferred.
II. Extraditable crimes. IX. Prior offenses.
III. Procedure. X. Property seized with fugitive.
IV. Provisional detention. XL Persons claimed by other
V. Nondelivery of citizens. countries.
VI. Political offenses. XII. Expenses.
VII. Limitations. XIII. Duration; ratification.
PERU— BOLIVIA.
1836.
CONVENTION OF PEACE, FRIENDSHIP, COMMERCE, AND NAVIGATION.
Concluded November 30, 1836 ; ratification advised by the Senate
October 10, 1837 ; ratified by the President October 14, 1837 ;
ratifications exchanged May 28, 1838; proclaimed October 3,
1838. (Treaties and Conventions, 1889, p. 840.)
U. S. Treaties 1904, p. 634; 8 Stats, at Large, 487.
This convention terminated by the dissolution of the Peru-Bolivia
Confederation in 1839.
PORTUGAL.
1840.
TREATY OP COMMERCE AND NAVIGATION.1
Concluded August 26, 1840; ratification advised by the Senate
February 3, 1841; ratified by the President April 23, 1841;
ratifications exchanged April 23, 1841; proclaimed April 24,
1841. (Treaties and Conventions, 1889, p. 891.)
U. S. Treaties 1904, p. 635; 8 Stats, at Large, 560.
This general treaty of fourteen articles was terminated by notice
of the Portuguese government January 31, 1892.
1 See Olclfielcl v. Marriott, 10 How. 146, 13 L. ed. 364.
Treaties — 47
738 APPENDIX II.
1851.
CLAIMS CONVENTION.
Concluded February 26, 1851; ratification advised by the Senate
March 7, 1851; ratified by the President March 10, 1851; rati-
fications exchanged June 23, 1851; proclaimed September 1,
1851. (Treaties and Conventions, 1889, p. 896.)
U. S. Treaties 1904, p. 635; 10 Stats, at Large, Treaties, 91.
By this convention Portugal agreed to pay the United States
$91,727 in full for all claims of American citizens against Portugal,
except the claim of the brig "General Armstrong/1 which was re-
ferred to an arbitrator. Louis Napoleon, President of France, was
appointed arbitrator of the "General Armstrong" claim, and No-
vember 30, 1852, decided that no indemnity was due from Portugal
to the United States on account of the claim.
1900.
RECIPROCAL COMMERCIAL ARRANGEMENT WITH PORTUGAL.
Signed May 22, 1899; proclaimed June 12, 1900.
IT. S. Treaties 1904, p. 635; 31 Stats, at Large, 1913, 1974.
ABTICLES.
I. Concessions by United States. III. Termination.
II. Concessions by Portugal. IV. Ratification.
PRUSSIA.
(See, also, GERMAN EMPIRE AND NORTH GERMAN UNION.)
1785.
TREATY OF AMITY AND COMMERCE.
Concluded September 10, 1785; ratified by the Congress of the
United States May 17, 1786; ratifications exchanged October,
1786. (Treaties and Conventions, 1889, p. 899.)
U. S. Treaties 1904, p. 636; 8 Stats, at Large, 84.
APPENDIX II. 739
This treaty of twenty-seven articles expired by its own limitations
October, 1796, but Article XII was revived by Article XII of the
Treaty of 1828. This article relates to the neutrality of vessels.
1799.
TREATY OF AMITY AND COMMERCE.
Concluded July 11, 1799; ratification advised by the Senate Febru-
ary 18, 1800; ratified by the President February 19, 1800; rati-
fications exchanged June 22, 1800; proclaimed November 4,
1800, (Treaties and Conventions, 1889, p. 907.)
U. S. Treaties 1904, p. 636; 8 Stats, at Large, 162.
This treaty expired by its own limitations June 22, 1810; but
the provisions of the articles printed hereunder were revived by
Article XII of the Treaty of May 1, 1828.
AETICLES.
XIII. Detention of contraband XX. Letters of marque.
goods. XXI. Eules in case of war with
XIV. Ships papers in time of war. common enemy.
XV. Visit to neutral ships. XXII. Mutual protection of ships
XVI. Embargoes, seizures, etc. against common enemy.
XVII. Kestoration of neutral ships. XXIII. Protection in case of war.
XVIII. Asylum to vessels in dis- XXIV. Treatment of prisoners of
tress. war.
XIX. Prizes.
1828.
TREATY OF COMMERCE AND NAVIGATION.1
Concluded May 1, 1828; ratification advised by the Senate May
14, 1828; ratified by the President; ratification again advised
and time for exchange of ratification extended by the Senate
March 9, 1829; ratifications exchanged March 14, 1829; pro-
claimed March 14, 1829. (Treaties and Conventions, 1889, p.
916.)
U. S. Treaties 1904, p. 643; 8 Stats, at Large, 378.
*See Ex parte Newman, 14 Wall. 438, Fed. Gas. No. 4426; North Ger
U52, 20 L. ed. 877; United States man Lloyd S. S. Co. v. Hedden, 43
jv. Diekelman, 92 U. S. 520, 23 L. Fed. 17; Diekelman v. United States,
ed. 742; The Elwine Kreplin, 4 Ben. 8 Ct. of Cl. 371.
417, Fed. Gas. No. 4427, 9 Blatchf.
740
APPENDIX II.
AETICLES.
I. Freedom of commerce and VIII.
navigation.
II. No discrimination of shipping IX.
charges.
III. No discrimination in import X.
duties on account of vessels.
IV. Application of two preceding XL
sections. XII.
V. No discrimination of import
duties. XIII.
VI. No discrimination of export XIV.
duties. XV.
VII. Coastwise trade. XVI.
No preference to importing
vessel.
Most favored nation commer-
cial privileges.
Consular privileges and juris-
diction.
Deserters from ships.
Articles of former treaties re-
vived.
Blockades.
Estates of deceased persons.
Duration.
Eatification.
1852.
EXTRADITION CONVENTION.1
Concluded June 16, 1852; ratification advised by the Senate March
15, 1853; ratified by the President May 27, 1853; ratifications
exchanged May 30, 1853; proclaimed June 1, 1853. (Treaties
and Conventions, 1889, p. 921.)
U. S. Treaties 1904, p. 648.
(This treaty was concluded by the King of Prussia for the
Kingdom of Prussia and other states of the Germanic Confederation
therein named. It was acceded to by the following German states :
Bremen, Mecklenburg-Schwerin, Mecklenburg-Strelitz, Oldenburg,
Schaumburg-Lippe, and Wiirttemberg. )
AETICLES.
I. Extraditable crimes; procedure. IV. Persons under trial.
II. Accession of other German V. Duration.
States. VI. Eatification.
III. Nondelivery of citizens.
1 See In re Henrich, 5 Blatchf. 414, Behrendt, 22 Fed. 699, 23 Blatcl
Fed. Cas. No. 6369; In re Stupp, 40; In re Eisch, 36 Fed. 546; In
11 Blatchf. 124, Fed. Cas. No. re Krozanker, 44 Fed. 482; Terlin-
13,562; In re Wiegand, 14 Blatchf. den v. Ames, 184 U. S. 270, 22 Sup.
370, Fed. Cas. No. 17,618; In re Ct. Eep. 484, 46 L. ed. 534.
APPENDIX II. 741
ROUMANIA.
1881.
CONSULAR CONVENTION.
Concluded June 17, 1881; ratification advised by the Senate April
3, 1882; ratified by the President April 6, 1882; ratifications
exchanged June 13, 1883 ; proclaimed July 9, 1883. (Treaties
and Conventions, 1889, p. 925.)
U. S. Treaties 1904, p. 652; 23 Stats, at Large, 711.
AETICLES.
I. Consular officers. VIII. Vice-consuls and agents.
II. Most favored nation consular X. Applications to authorities.
privileges. X. Notarial powers.
III. Exemptions. XL Shipping disputes.
IV. Testimony by consuls. XII. Deserters from ships.
V. Arms and flags. XIII. Damages to vessels at sea.
VI. Immunities of offices and ar- XIV. Shipwrecks and salvage.
chives. XV. Estates of deceased persons.
VII. Acting officers. XVI. Duration; ratification.
1906.
CONVENTION BETWEEN THE UNITED STATES AND ROUMANIA FOR THE
RECIPROCAL PROTECTION OF TRADEMARKS.
Signed at Bucharest March 18-31, 1906 ; ratification advised by the
Senate May 4, 1906; ratified by the President May 10, 1906;
ratified by Roumania June 20, 1906 ; ratifications exchanged
at Bucharest June 21, 1906 ; proclaimed June 25, 1906.
Treaties and Proclamations, 2901; 34 Stats, at Large, pt. 3, 2901.
AETICLES.
I. Keciprocal rights of citizens of II. Conforming to laws and regula-
each country. tions.
III. Effect.
742 APPENDIX II.
RUSSIA.
1824.
CONVENTION AS TO THE PACIFIC OCEAN AND NORTHWEST COAST OF
AMERICA.
Concluded April 17, 1824; ratification advised by the Senate Jan-
uary 5, 1825; ratified by the President January 7, 1825; ratifi-
cations exchanged January 11, 1825; proclaimed January 12,
1825. (Treaties and Conventions, 1889, p. 931.)
IT. S. Treaties 1904, p. 657; 8 Stats, at Large, 302.
<Jn the treaty volumes the translation is from the original, which
is in the French language.)
ARTICLES.
I. Navigation, fishing, and trad- IV. Temporary fishing and trading
ing. agreement.
II. Illicit trade. V. Sale of liquors and firearms pro-
Ill. Mutual limit of occupation of hibited.
northwest coast. VI. Ratification.
1832.
TREATY OF COMMERCE AND NAVIGATION.
Concluded December 18, 1832; ratification advised by the Senate
February 27, 1833; ratified by the President April 8, 1833;
ratifications exchanged May 11, 1833; proclaimed May 11, 1833.
(Treaties and Conventions, 1889, p. 933.)
U. S. Treaties 1904, p. 659; 8 Stats, at Large, 444.
ARTICLES.
I. Freedom of commerce and VIII. Consular officers and powers
navigation. IX. Deserters from ships.
II. Reciprocal treatment of ves- X. Estates of deceased persons
sels. XI. Most favored nation com
III. No discrimination on account mercial privileges.
of vessels importing. XII. Duration.
IV. Application of two preceding XIII. Ratification.
articles. Separate article: Trade with Prus-
V. Export duties. sia, Sweden, Norway, Poland, and
VI. Import duties. Finland.
VII. Coastwise trade.
APPENDIX II. 743
1854.
CONVENTION AS TO RIGHTS OF NEUTRALS AT SEA.
Concluded July 22, 1854; ratification advised by the Senate July
25, 1854; ratified by the President August 12, 1854; ratifica-
tions exchanged October 31, 1854; proclaimed November 1,
1854. (Treaties and Conventions, 1889, p. 938.)
U. S. Treaties 1904, p. 664; 10 Stats, at Large, Treaties, 215.
AETICLES.
I. Principles of free ships and III. Accession of other nations.
neutral property. IV. Eatification.
II. Extension of principles.
1867.
CONVENTION CEDING ALASKA.1
Concluded March 30, 1867 ; ratification advised by the Senate April
9, 1867 ; ratified by the President May 28, 1867 ; ratifications
exchanged June 20, 1867 ; proclaimed June 20, 1867. (Treaties
and Conventions, 1889, p. 939.)
U. S. Treaties 1904, p. 666; 15 Stats, at Large, 539.
AETICLES.
I. Territory ceded; boundaries. IV. Formal delivery.
II. Public property ceded. V. Withdrawal of troops.
III. Citizenship of inhabitants; un- VI. Payment; effect of cession,
civilized tribes. VII. Eatification.
1868.
ADDITIONAL ARTICLE TO TREATY OF COMMERCE, 1832. TRADEMARKS
Concluded January 27, 1868; ratification advised by the Senate
July 25, 1868; ratified by the President August 14, 1868; rati-
fications exchanged September 21, 1868; proclaimed October
15, 1868. (Treaties and Conventions, 1889, p. 942.)
U. S. Treaties 1904, p. 669; 16 Stats, at Large, 725.
ARTICLE. — COUNTERFEITING OF TRADEMARKS PROHIBITED; REGISTRA-
TION.
1 See Kinkead v. United States, 24 Ct. of Cl. 459; Callsen v. Hope,
150 U. S. 483, 14 Sup. Ct. Eep. 172, 75 Fed. 758.
37 L. ed. 1152, 18 Ct. of Cl. 504,
744 APPENDIX II.
1874.
TRADEMARK DECLARATION.
Signed March 28, 1874; ratification advised by the Senate June 22,
1874; ratified by the President June 26, 1874; proclaimed
November 24, 1874. (Treaties and Conventions, 1889, p. 943.)
U. S. Treaties 1904, p. 670; 18 Stats, at Large, 145.
1884.
DECLARATION CONCERNING THE ADMEASUREMENT OF VESSELS.
Signed June 6, 1884.
DECLARATION.
The English method for the admeasurement of vessels (the
Moorsom system) being now in force not only in the United States
of America but also in the Empire of Russia and the Grand Duchy
of Finland is adopted.
U. S. Treaties 1904, p. 670; 23 Stats, at Large, 789.
1887.
/
EXTRADITION CONVENTION.*
Concluded March 28, 1887 ; ratification advised by the Senate witt
amendments February 6, 1893 ; ratified by the President Fe(
ruary 14, 1893; ratifications exchanged April 21, 1893; prc
claimed June 5, 1893.
U. S. Treaties 1904, p. 672; 28 Stats, at Large, 1071.
'See Tucker v. Alexandroff, 183 S. 181, 23 Sup. Ct. Eep. 98, 47
U. S. 424, 22 Sup. Ct. Eep. 195, 46 ed. 130; In re Grin, 112 Fed. 79(
L. ed. 264; Brin v. Shine, 187 U.
APPENDIX II. 745
AETICLES.
I. Surrender of accused; evi- VII. Provisional detention.
dence. VIII. Articles taken with fugitives.
II. Extraditable crimes. IX. Persons claimed by a third
III. Political offenses. country.
IV. Nondelivery of citizens. X. Expenses.
V. Persons under trial. XI. Duration; ratification.
VI. Procedure.
1894.
AGREEMENT FOR A MODUS VIVENDI IN RELATION TO THE FUR-SEAL
FISHERIES IN BERING SEA AND THE NORTH PACIFIC OCEAN.
Concluded May 4, 1894; ratification advised by the Senate May 9,
1894; proclaimed May 12, 1894.
U. S. Treaties 1904, p. 675; 28 Stats, at Large, 1202.
PAKAGEAPHS.
1. Sealing by United States citi- 3. Trials.
zens prohibited on Eussian 4. Limit of catch,
coasts. 5. Eetroactive force.
2. Seizure of offending vessels. 6. Termination at will.
SALVADOR.
(FORMERLY SAN SALVADOR.)
1850.
CONVENTION OF AMITY, NAVIGATION AND COMMERCE.
Concluded January 2, 1850; ratification advised by the Senate Sep-
tember 24, 1850; ratified by the President November 14, 1850;
time for exchange of ratifications extended by the Senate Sep-
tember 27, 1850; ratifications exchanged June 2, 1852; exchange
of ratifications consented to by the Senate April 4, 1853; pro-
claimed April 18, 1853. (Treaties and Conventions, 1889, p.
945.)
U. S. Treaties 1904, p. 677; 10 Stats, at Large, Treaties, 71.
This treaty of thirty-six articles was superseded by the Treaty
of December 6, 1870.
746 APPENDIX II.
1870.
EXTRADITION CONVENTION.
Concluded May 23, 1870; ratification advised by the Senate Decem-
ber 9, 1870; ratified by the President December 16, 1870; time
for exchange of ratifications extended by conventions of May
12, 1873; ratifications exchanged March 2, 1874; proclaimed
March 4, 1874. (Treaties and Conventions, 1889, p. 955.)
•
U. S. Treaties 1904, p. 677; 18 Stats, at Large, Treaties, 9.
This convention, consisting of eight articles, was denounced on
notice given by Salvador, to take effect March 2, 1904.
1870.
TREATY OF AMITY, COMMERCE, AND CONSULAR PRIVILEGES.
Concluded December 6, 1870; ratification advised by the Senate
March 31, 1871; ratified by the President April 11, 1871; time
for exchange of ratifications extended by convention of May
12, 1873; ratifications exchanged March 11, 1874; proclaimed
March 13, 1874. (Treaties and Conventions, 1889, p. 957.)
U. S. Treaties 1904, p. 677; 18 Stats, at Large, Treaties, 41.
Upon notice from the government of Salvador this general treaty
of thirty-nine articles was abrogated May 30, 1893.
1873.
EXTRADITION CONVENTION.
Concluded May 12, 1873; ratification advised by the Senate Febru-
ary 9, 1874; ratified by the President February 16, 1874; rati-
fications exchanged March 2, 1874; proclaimed March 4, 1874.
U. S. Treaties 1904, p. 678; 18 Stats, at Large, 796.
This convention extended for one year the time for the ex-
change of ratifications of the Extradition Convention of May 23,
1870.
APPENDIX II. 747
1873.
CONVENTION OF AMITY, COMMERCE, AND CONSULAR PRIVILEGES.
Concluded May 12, 1873; ratification advised by the Senate March
2, 1874; ratified by the Senate March 10, 1874; ratifications
exchanged March 11, 1874; proclaimed March 13, 1874.
U. S. Treaties 1904, p. 678; 18 Stats, at Large, 114.
The time for the exchange of ratifications of the Treaty of
December 6, 1870, was extended one year by this convention.
SAMOAN ISLANDS.
1878.
TREATY OF FRIENDSHIP AND COMMERCE.
Concluded January 17, 1878; ratification advised ~by the Senate with
amendments January 30, 1878; ratified by the President Feb-
ruary 8, 1878; ratifications exchanged February 11, 1878; pro-
claimed February 13, 1878. (Treaties and Conventions, 1889,
p. 972.)
U. S. Treaties 1904, p. 679; 20 Stats, at Large, 704.
This treaty, consisting of eight articles, is annulled by Treaty of
December 2, 1899, between United States, Germany, and Great
Britain.
1889.
GENERAL ACT PROVIDING FOR THE NEUTRALITY AND AUTONOMOUS
GOVERNMENT OF THE SAMOAN ISLANDS.
Concluded at Berlin June 14, 1889; ratification advised by the
Senate February 4, 1890; ratified by the President February
21, 1890; ratifications exchanged April 12, 1890; assented to
by Samoa April 19, 1890; proclaimed May 21, 1890.
U. S. Treaties 1904, p. 679; 26 Stats, at Large, 1497.
This general act, consisting of eight articles, was expressly an-
nulled by Treaty of December 2, 1899, between United States, Ger-
many, and Great Britain.
748 APPENDIX II.
1899.
CONVENTION BETWEEN UNITED STATES, GERMANY, AND GREAT BRIT-
AIN RELATING TO SETTLEMENT OP SAMOAN CLAIMS.
Concluded November 7, 1899 ; ratification advised by Senate Febru-
ary 21, 1900; ratified by President March 5, 1900; ratifications
exchanged March 7, 1900; proclaimed March 8, 1900.
U. S. Treaties 19U4, p. 679; 31 Stats, at Large, 1875.
ARTICLES.
I. Claims considered. III. Claims of persons not natives.
II. Arbitrator. IV. Ratifications.
1902.
SAMOAN CLAIMS DECISION.
Decision given by His Majesty Oscar II, King of Sweden and Nor-
way, as arbitrator under convention of November 7, 1899, be-
tween Germany, Great Britain, and the United States, relating
to claims on account of military operations conducted in Samoa
in 1899, given at Stockholm October 14, 1902.
U. S. Treaties 1904, p. 681.
1899.
CONVENTION TO ADJUST THE QUESTION BETWEEN THE UNITED
STATES, GERMANY, AND GREAT BRITAIN IN RESPECT TO THE
SAMOAN ISLANDS.
Concluded December 2, 1899 ; ratification advised by Senate Janu-
ary 16, 1900; ratified by the President February 13, 1900; rati-
fications exchanged February 16, 1900; proclaimed February
16, 1900.
U. S. Treaties 1904, p. 685; 31 Stats, at Large, 1878.
ARTICLES.
I. General act and treaties an- III. Commercial privileges.
nulled. IV. Ratifications.
II. Reciprocal renunciations.
APPENDIX II. 749
SARDINIA.
1838.
TREATY OF COMMERCE AND NAVIGATION.
Concluded November 26, 1838; ratification advised by the Senate
March 2, 1839; ratified by the President March 8, 1839; ratifi-
cations exchanged March 18, 1839; proclaimed March 18, 1839.
(Treaties and Conventions, 1889, p. 974.)
U. S. Treaties 1904, p. 687; 8 Stats, at Large, 512.
This treaty of twenty .articles and a separate article was super-
seded by the Treaty of 1871 with Italy as Sardinia had become
merged into that kingdom.
SAXONY.
(See GERMAN EMPIRE.)
1845.
CONVENTION ABOLISHING DROIT D'AUBAINE AND EMIGRATION TAXES.
Concluded May 14, 1845; ratification advised by the Senate, with
amendment, April 15, 1846; ratified by the President April 22,
1846 ; ratifications exchanged August 12, 1846; proclaimed
September 9, 1846. (Treaties and Conventions, 1889, p. 981.)
U. S. Treaties 1904, p. 688; 9 Stats, at Large, Treaties, 40.
ARTICLES.
I. Taxes abolished. V. Suits.
II. Disposal of real property. VI. Extent of treaty provisions.
III. Disposal of personal property. VII. Ratification.
IV. Protection of rights of ab-
sent heirs.
SCHAUMBURG-LIPPE.
(See GERMAN EMPIRE.)
The Principality of Schaumburg-Lippe, June 7, 1854, acceded to
the Extradition Convention concluded with Prussia and other
German States, June 16, 1852, and the additional article of No-
vember 16, 1852.
U. S. Treaties 1904, p. 689; 10 Stats, at Large, Treaties, 106.
750 APPENDIX II.
SERVIA.
1881.
CONVENTION OF COMMERCE AND NAVIGATION.
Concluded October 14, 1881; ratification advised by the Senate July
5, 1882; ratified by the President July 14, 1882; ratifications
exchanged November 15, 1882; proclaimed December 27, 1882.
(Treaties and Conventions, 1889, p. 984.)
U. S. Treaties 1904, p. 690; 22 Stats, at Large, 963.
ARTICLES.
I. Freedom of commerce, navi- VII. Freedom of imports.
gatioD and trade. VIII. Transit of goods.
II. Bights of real and personal IX. Ad valorem duties.
property. X. Exceptions of local traffic.
III. Trade privileges. XI. Freight on railways.
IV. Exemptions, etc. XII. Trademarks.
V. Prohibitions of imports, etc., XIII. Shipping charges.
restricted. XIV. Duration.
VI. Import and export duties. XV. Ratification.
1881.
CONSULAR CONVENTION.
Concluded October 14, 1881; ratification advised by the Senate July
5, 1882; ratified by the President July 14, 1882; ratifications
exchanged November 15, 1882; proclaimed December 27, 1882.
(Treaties and Conventions, 1889, p. 988.)
U. S. Treaties 1904, p. 694; 22 Stats, at Large, 968.
AETICLES.
I. Consular officers. VIII. Vice-consuls and agents.
II. Exequaturs. IX. Correspondence with authori-
III. Exemptions. ties.
IV. Testimony by consular of- X. Notarial services.
ficers. XI. Estates of deceased persons.
V. Arms and flag. XII. Surrender of certain privi-
VI. Inviolability of archives and leges.
offices. XIII. Duration; ratification.
VII. Acting officers.
APPENDIX II. 751
1901.
EXTRADITION TREATY.
Concluded October 25, 1901; ratification advised by Senate January
27, 1902; ratified by President March 7, 1902; ratifications ex-
changed May 13, 1902; proclaimed May 17, 1902.
U. S. Treaties 1904, p. 698; 32 Stats, at Large, 1890.
ARTICLES.
I. Delivery of accused. VIII. Prior offenses.
II. Extraditable crimes. . IX. Property seized with fugitive.
III. Procedure. X. Persons claimed by other
IV. Provisional detention. countries.
V. Nondelivery of citizens. XI. Expenses; duration; ratifica-
VI. Political offenses. tion.
Til. Limitations.
SIAM.
1833.
CONVENTION OF AMITY AND COMMERCE.
Concluded March 20, 1833; ratification advised by the Senate June
30, 1834; ratified by the President; ratifications exchanged
April 14, 1836; proclaimed June 24, 1837. (Treaties and Con-
ventions, 1889, p. 992.)
U. S. Treaties 1904, p. 703; 8 Stats, at Large, 454.
(The provisions of this treaty 'were modified by the Treaty of
1856.)
ARTICLES.
I. Peace. VI. Settlement of debts.
II. Freedom of trade, etc. VII. Trading in Siam.
III. Shipping duties in Siam. VIII. Capture by pirates.
IV. Most favored nation duties. IX. Laws of Siam.
V. Shipwrecks. X. Consuls in Siam.
752 APPENDIX II.
1856.
TREATY OF AMITY AND COMMERCE.
Concluded May 29, 1856; ratification advised by the Senate with
amendment March 13, 1857 ; ratified by the President March
16, 1857 ; ratifications exchanged June 15, 1857 ; time for ex-
change of ratifications extended by the Senate June 15, 1858 ;
proclaimed August 16, 1858. (Treaties and Conventions, 1889,
p. 995.)
U. S. Treaties 1904, p. 706; 11 Stats, at Large, 683.
AETICLES.
I. Amity; mutual assistance. VIII. Duties; trade, etc.
II. Consul at Bangkok; powers. IX. Treaty regulations.
III. Offenses in Siam. X. Most favored nation privi-
IV. Trade privileges in Siam. leges.
V. Americans in Siam. XI. Duration; revision.
VI. Keligious freedom, etc. XII. Eatification.
VII. Privileges to ships of war in
Siam.
1867.
MODIFICATION TO TREATY OF AMITY AND COMMERCE OF MAY 29, 1856.
Concluded December 17-31, 1867 ; ratification advised by Senate
July 25, 1868; ratified by the President August 11, 1868.
U. S. Treaties 1904, p. 713; 17 Stats, at Large, 807.
1884.
AGREEMENT REGULATING LIQUOR TRAFFIC IN SIAM.
Concluded May 14, 1884; ratification advised by the Senate Ju
28, 1884; ratified by the President June 30, 1884; ratificatio
exchanged June 30, 1884; proclaimed July 5, 1884.
U. S. Treaties 1904, p. 714; 23 Stats, at Large, 782.
AETICLES.
I. Duties on liquors. V. Most favored nation pri
II. Testing of spirits. leges.
III. Deleterious spirits. VI. Duration.
IV. Licenses to sell. VII. Eatification, etc.
APPENDIX II. 753
SPAIN.
1795.1
TREATY OF FRIENDSHIP, BOUNDARIES, COMMERCE AND NAVIGATION.
Concluded October 27, 1795; ratification advised ~by the Senate
March 3, 1796; ratified by the President; ratifications ex-
changed April 25, 1796; proclaimed August 2, 1796. (Treaties
and Conventions, 1889, p. 1006.)
U. S. Treaties 1904, p. 717; 8 Stats, at Large, 138.
This treaty consisted of twenty-three articles. It contained an
agreement as to the southern and western boundaries of the United
States; the mutual free navigation of the Mississippi River from
its source to the ocean ; the usual articles relating to commerce and
navigation; the authority to appoint consuls; the appointment of
a claims commission to settle claims of United States citizens against
Spain, etc. The claims commission provided for met in Phila-
delphia, terminating their duties December 31, 1799, having made
awards to the amount of $325,440.071/i> on account of Spanish spo-
liations.
1802.
CLAIMS CONVENTION.
Concluded August 11, 1802; ratification advised by the Senate
January 9, 1804; ratified by the President January 9, 1804;
ratifications exchanged December 21, 1818; proclaimed Decem-
ber 22, 1818. (Treaties and Conventions, 1889, p. 1015.)
U. S. Treaties 1904, p. 717; 8 Stats, at Large, 198.
'See The Nereide, 9 Cranch, 388,1 I Wheat. 530, 6 L. ed. 718; United
3 L. ed. 769; The Pezarro, 2 Wheat/ States v. The Amistead, 15 Pet.
227, 4 L. ed. 226; The Nuestra Se- 518, 10 L. ed. 826; Pollard v. Hagan,
iiora de la Caridad, 4 Wheat. 497, 3 How. 212, 11 L. ed. 565; Eobin-
4 L. ed. 624; The Amiable Isabella, son v. Minor, 10 How. 627, 13 L.
6 Wheat. 1, 5 L. ed. 191; The Bello ^ ed. 568; Le Tiqre, 3 Wash. C. C.
Oorrunes, 6 Wheat. 152, 5 L. ed. 567, Fed Gas. No. 8281; The Santis-
229; The Santissima Trinidad, 7 sima Trinidad, 1 Brock, 478, Fed.
Wheat. 283, 5 L. ed. 454; Hender- Gas. No. 2568.
son v. Poindexter's Lessee, 12
Treaties — 48
754
APPENDIX II.
This convention provided for the appointment of a board o
five commissioners to adjust the claims for "indemnification o
those who have sustained losses, damages, or injuries in conse
quence of the excesses of individuals of either nation during th
late war contrary to the existing treaty or the laws of nations.'
As the convention was not proclaimed until the 22d of December
1818, and was annulled by Article X of the Treaty of 1819, it neve
went into effect.
1819.1
TREATY OF FRIENDSHIP, CESSION OF THE FLORIDAS, AND BOUNDARIES
Concluded February 22, 1819; ratification advised by the Senat
February 24, 1819; ratification advised again by the Senat
February 19, 1821; ratified by the President February 22, 1821
ratifications exchanged February 22, 1821; proclaimed Febru
ary 22, 1821. (Treaties and Conventions, 1889, p. 1016.)
U. S. Treaties 1904, p. 718; 8 Stats, at Large, 252.
1 See Comegys v. Vasse, 1 Pet.
193, 7 L. ed. 108, 4 Wash. C. C.
570, Fed. Gas. No. 16,894; Ameri-
can Ins. Co. v. 365 Bales of Cot-
ton, 1 Pet. 511, 7 L. ed. 243; Fos-
ter v. Neilson, 2 Pet. 253, 7 L.
ed. 415; United States v. Arredondo,
6 Pet. 691, 8 L. ed. 547; United
States v. Percheman, 7 Pet. 51, 8 L.
ed. 604; United States v. Clarke,
8 Pet. 436, 8 L. ed. 1001, 9 Pet.
168, 9 L. ed. 89, 16 Pet. 228, 10 L.
ed. 946; Mitchel v. United States,
9 Pet. 711, 9 L. ed. 283; United
States v. Sibbald, 10 Pet. 313, 9
L. ed. 437; Smith v. United States,
10 Pet. 326, 9 L. ed. 442; United
States v. Mill's Heirs, 12 Pet. 215,
9 L. ed. 1061; United States v.
Kingsley, 12 Pet. 476, 9 L. ed. 1163;
Garcia v. Lee, 12 Pet. 511, 9 L. ed.
1176; United States v. Wiggins, 14
Pet. 334, 10 L. ed. 481; Pollard v.
Kibbe, 14 Pet. 353, 10 L. ed. 490
O'Hara v. United States, 15 Pe
275, 10 L. ed. 737; United State
v. Delespine, 15 Pet. 319, 10 L. ed
753; United States v. The Amistead
15 Pet. 518, 10 L. ed. 826; United
States v. Breward, 16 Pet. 143, 1C
L. ed. 916; United States v. Mi
randa, 16 Pet. 153, 10 L. ed. 920:
United States v. Hanson, 16 Pet
196, 10 L. ed. 935; United State*
v. Acosta, 1 How. 24, 11 L. ed. 33
Pollard v. Files, 2 How. 591, 11 L
ed. 391; Pollard v. Hagan, 3 How
212, 11 L. ed. 565; Doe v. Braden
16 How. 635, 14 L. ed. 1090; Mead<
v. United States, 9 Wall. 691, 19 I
ed. 687, 2 Ct. of 01. 224; Unite*
States v. Lynde's Heirs, 11 Wall
632, 20 L. ed. 230; United State
v. Texas, 162 U. S. 1, 16 Sup. Ct. Rej
725, 40 L. ed. 867; Gray v. Unite
States, 21 Ct. of 01. 340.
APPENDIX n. 755
1834.
CLAIMS CONVENTION.
Concluded February 17, 1834; ratification advised by the Senate
May 13, 1834; ratified by the President; ratifications exchanged
August 14, 1834; proclaimed November 1, 1834. (Treaties and
Conventions, 1889, p. 1023.)
U. S. Treaties 1904, p. 719; 8 Stats, at Large, 460.
AKTICLES.
I. Indemnification to United States. IV. List of claims.
II. Interest. V. Eatification.
III. Claims renounced.
1871.
CLAIMS AGREEMENT.
Signed February 12, 1871. (U. S. Treaties and Conventions, 1889,
p. 1025.)
17 Stats, at Large, 839.
This agreement provided for the creation of a mixed commission
to determine the claims of American citizens against Spain for
injuries inflicted in the "Ten Years War" in Cuba.
1877.
EXTRADITION CONVENTION.
i Concluded January 5, 1877 ; ratification advised by the Senate Feb-
ruary 9, 1877 ; ratified by the President February 14, 1877 ;
ratifications exchanged February 21, 1877 ; proclaimed Feb-
ruary 21, 1877. (Treaties and Conventions, 1889, p. 1027.)
U. S. Treaties 1904, p. 721; 19 Stats, at Large, Treaties, 94.
This convention of twelve articles contained the usual provisions
'for the extradition of fugitives from justice.
756 APPENDIX II.
1882.
TRADEMARK CONVENTION.
Concluded June 19, 1882; ratification advised by the Senate July 5,
1882; ratified by the President April 4, 1883; ratifications ex-
changed April 19, 1883; proclaimed April 19, 1883. (Treaties
and Conventions, 1889, p. 1036.)
U. S. Treaties 1904, p. 722; 22 Stats, at Large, 979.
This convention of three articles contained the usual reciprocal
agreements for the protection of trademarks and manufactured
articles.
1882.
SUPPLEMENTARY EXTRADITION CONVENTION.1
Concluded August 7, 1882; ratification advised by the Senate Feb-
ruary 27, 1883; ratified by the President April 4, 1883; ratifi-
cations exchanged April 19, 1883; proclaimed April 19,
(Treaties and Conventions, 1889, p. 1037.)
U. S. Treaties 1904, p. 722; 22 Stats, at Large, 991.
"By the articles of this supplementary convention to the Extra-
dition Convention of 1877, additions were made to the list of
extraditable offenses, and an agreement made for the temporary
detention of criminals and the co-operation of both governments to
secure the arrest and delivery of the criminals demanded.
1898.
TREATY OF PEACE.2
Concluded at Paris December 10, 1898; ratification advised by the
Senate February 6, 1899; ratified by the President February 6,
1899; ratifications exchanged April 11, 1899; proclaimed April
11, 1899.
U. S. Treaties 1904, p. 722; 30 Stats, at Large, 1754.
1 See Oteiza y Cortes v. Jacobus, Cortes, 42 Fed. 47 ; Ex parte Oritz.
136 U. S. 330, 10 Sup. Ct. Eep. 1034, 100 Fed. 955.
34 L. ed. 464; Castro v. De Uriarte, 2 See Dooley v. United States, 182
12 Fed. 250, 16 Fed. 93; In re U. S. 222, 21 Sup. Ct. Eep. 762, 45
APPENDIX II.
757
ARTICLES.
I. Relinquishment of Cuba. X.
II. Cession of Porto Rico, Guam, XT.
etc.
III. Cession of Philippine Isl- XII.
ancls.
IV. Spanish trade with the XIII.
Philippines.
V. Return of Spanish soldiers
from Manila; evacuation XIV.
of Philippines and Guam. XV.
VI. Release of prisoners.
VII. Relinquishment of claims. XVI.
VIII. Property relinquished and XVII.
ceded.
IX. Property and civil rights of
persons in ceded territory.
Religious freedom.
Legal rights in ceded or re-
linquished territory.
Determination of pending
judicial proceedings.
Privileges of copyrights and
patents preserved in ceded
territories.
Consular privileges.
Mutual privileges of ship-
ping charges.
Obligations of Cuba.
Ratification.
1900.
PROTOCOL WITH SPAIN EXTENDING THE PERIOD DURING WHICH
SPANISH SUBJECTS, NATIVES OF THE PHILIPPINE ISLANDS, MAY
DECLARE THEIR INTENTION TO RETAIN THEIR SPANISH NATION-
ALITY.
Concluded March 29, 1900; advice and consent of the Senate April
27, 1900; proclaimed April 28, 1900.
U. S. Treaties 1904, p. 727; 31 Stats, at Large, 1881.
ARTICLE.
Extension.
L. ed. 1074, 183 U. S. 151, 22 Sup.
Ct. Rep. 62, 46 L. ed. 128; Pepke
v. United States, 183 U. S. 176, 22
Sup. Ct. Rep. 59, 46 L. ed. 138; De
Lema v. Bidwell, 182 U. S. 1, 21 Sup.
Ct. Rep. 743, 45 L. ed. 1041 ; Goetze v.
United States, 182 U. S. 221, 21 Sup.
Ct. Rep. 742, 45 L. ed. 1065, 103 Fed.
72; Armstrong v. United States, 182
U. S. 243, 21 Sup. Ct. Rep. 827, 45
L. ed. 1086; Downes v. Bidwell, 182
U. S. 244, 21 Sup. Ct. Rep. 770, 45
L. ed. 1088; Huus v. New York and
Porto Rico S. S. Co., 182 U. S. 392,
21 Sup. Ct. Rep. 827, 45 L. ed.
1146; Grossman v. United States,
182 U. S. 221, 21 Sup. Ct. Rep. 742,
45 L. ed. 1065; Armstrong v. Bid-
well, 124 Fed. 690; De Pass v. Bid-
well, 124 Fed. 615; American Sugar
R. Co. v. Bidwell, 124 Fed. 677;
Howell v. Bidwell, 124 Fed. 688.
758 APPENDIX n.
1900.
TREATY FOR CESSION OF OUTLYING ISLANDS OF THE PHILIPPINES.
Concluded November 7, 1900; ratification advised by Senate Janu-
ary 22, 1901; ratified by the President January 30, 1901; rati-
fications exchanged March 23, 1901; proclaimed March 23, 1901.
U. S. Treaties 1904, p. 728; 31 Stats, at Large, 1942.
AETICLE.
Kelinquishment of islands to the United States.
1901.
AGREEMENT WITH SPAIN EXEMPTING FROM AUTHENTICATION SIGNA-
TURES ATTACHED TO LETTERS ROGATORY EXCHANGED WITH
PORTO Rico, THE PHILIPPINE ISLANDS, AND SPAIN.
Concluded August 7, 1901; effective November 28, 1901.
U. S. Treaties 1904, p. 729.
1902.
TREATY OF FRIENDSHIP AND GENERAL RELATIONS.
Concluded at Madrid July 3, 1902; ratification advised by the Sen-
ate December 16, 1902; ratified by the President February 6,
1903; ratifications excJianged April 14, 1903; proclaimed April
20, 1903.
U. S. Treaties 1904, p. 732 ; 33 Stats, at Large, pt. 2, p. 2105.
F THE A
'ERSITY j
SRSITY
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.
XV.
XVI.
XVII.
APPENDIX II.
AETICLES.
Amity. XVIII.
Commerce; navigation; fa-
vored nation treatment. XIX.
Disposition of real and XX.
personal property. XXI.
Eeligious liberty.
Exemptions of citizens XXII.
and vessels. XXIII.
Access to courts; favored XXIV.
nation treatment. XXV.
Customs duties. XXVI.
Mutual privileges of ship-
ping. XXVII.
Coasting trade.
Shipwrecks. XXVIII.
Nationality of vessels.
Diplomatic privileges. XXIX.
Consular officers.
Consular privileges. XXX.
Consular exemptions. XXXI.
Testimony by consuls.
Arms and flags at con-
sulates.
759
Consular offices and ar-
chives.
Acting consular officers.
Vice-consuls and agents.
Application to authorities
by consuls.
Notarial powers.
Shipping disputes.
Deserters from ships.
Damages to vessels at sea.
Notice of decease of citi-
zens.
Kepresentation of minor
heirs, etc.
Favored nation treatment
of consuls.
Annulling of prior treat-
ies.
Duration.
Eatification.
1902.
AGREEMENT BY INTERCHANGE OF NOTES WITH SPAIN AS TO RESTO-
RATION OF INTERNATIONAL COPYRIGHT AGREEMENT.
Concluded November 26, 1902.
U. 8. Treaties 1904, p. 741. The proclamation in reference to copyrights is
dated July 10, 1895, 29 Stats, at Large, 871.
SWEDEN AND NORWAY.
(See NORWAY.)
SWEDEN.
1783.
TREATY OF AMITY AND COMMERCE.
Concluded April 3, 1783; ratified by the Continental Congress
July 29, 1783; proclaimed by Congress September 25, 1783.
(Treaties and Conventions, 1889, p. 1042.)
U. S. Treaties 1904, p. 744; 8 Stats, at Large, 60.
760
APPENDIX II.
(This treaty terminated by its own limitations in 1796; certain
articles were revived by the Treaty of 1816, and by Article XVII
of the Treaty of 1827.
ARTICLES.
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.
(Peace and friendship. )
Most favored nation privi-
leges.
(Privileges to Swedish sub-
jects in United States.)
(Privileges to United States
citizens in Sweden.)
Religious freedom.
Effects of deceased persons.
Commerce in case of war.
Extent of freedom of com-
merce.
Contraband goods.
Goods not contraband.
Ships' papers in case of
war.
Navigation in time of war.
Detention of contraband
goods, etc.
Goods on enemy 's ships.
XV. Instructions to naval ves-
sels.
XVI. Bond from privateers.
XVII. Recaptured ships; embar-
goes.
XVIII. Regulations for war with
common enemy.
XIX. Prizes.
XX. (Shipwrecks.)
XXI. Asylum for ships in dis-
tress.
XXII. Property rights in case of
war.
XXIII. Letters of marque.
XXIV. (Shipping privileges.)
XXV. Visit of war vessels.
XXVI. (Consuls.)
XXVII. Ratification.
Separate article. Duration.
SEPARATE ARTICLES.
I. Defense of ships in Sweden.
II. Defense of ships in United
States.
III. (Mutual protection of merchant
vessels.)
IV. Right to trade.
V. Freedom of vessels from search.
1816.
TREATY OF AMITY AND COMMERCE.
Concluded September 4, 1816 ; ratification advised by the Senate
with amendments February 19, 1817 ; ratified by the President
May 27, 1818; ratifications exchanged September 25, 1818;
proclaimed December 31, 1818. (Treaties and Conventions,
1884*, p. 1053.)
IT. S. Treaties 1904, p. 753; 8 Stats, at Large, 232.
This treaty of fourteen articles expired by its own limitations
September 25, 1826, and was replaced by the Treaty of 1827.
APPENDIX II. 761
1827.
TREATY OP COMMERCE AND NAVIGATION.
Concluded July 4, 1827 ; ratification advised by the Senate January
7, 1828; ratified by the President; ratifications exchanged
January 18, 1828; proclaimed January 19, 1828. (Treaties
and Conventions, 1889, p. 1058.)
U. S. Treaties 1904, p. 754; 8 Stats, at Large, 346.
ARTICLES.
I. Freedom of commerce and XI. Shipping privileges.
trade. XII. Discnarge of cargoes.
II. Shipping dues. XIII. Consular officers and powers.
III. No discrimination on im- XIV. Deserters from ships.
ports. XV. Shipwrecks.
IV. No discrimination on ex- XVI. Quarantine.
ports. XVII. Articles of former treaty re-
V. Trade with St. Bartholomew. vived.
VI. Coastwise trade. XVIII. Blockade rules.
VII. No discrimination in pur- XIX. Duration.
chases. XX. Eatification.
VIII. Tonnage, etc., dues. Separate article. Trade
IX. No restriction on imports. with Finland.
X. Transit privileges, bounties,
etc.
1860.
EXTRADITION CONVENTION.
Concluded March 21, 1860; ratification advised by the Senate June
26, 1860; ratified by the President December 14, 1860; ratifica-
tions exchanged December 20, 1860; proclaimed December 21,
1860. (Treaties and Conventions, 1889, p. 1066.)
U. S. Treaties 1904, p. 761; 12 Stats, at Large, 1125.
This treaty of seven articles was concluded between the United
States and Sweden and Norway. It was superseded as to Norway
December 8, 1893, by the Treaty of June 7, 1893, and as to Sweden
April 17, 1893, by the Treaty of January 14, 1893.
762 APPENDIX II.
1869.
NATURALIZATION CONVENTION.
Concluded May 26, 1869; ratification advised by the Senate with
amendment December 9, 1870; ratified by the President Decem-
ber 17, 1870; ratifications exchanged June 14, 1871; exchange
of ratifications consented to by the Senate January 8, 1872;
proclaimed January 12, 1872. (Treaties and Conventions,
1889, p. 1068.)
U. S. Treaties 1904, p. 761; 17 Stats, at Large, 809.
ARTICLES. .
I. Eecognition of naturalization. IV. Extradition convention contin-
II. Liability for prior offenses. ued.
III. Eestoration to former citizen- V. Duration.
ship. VI. Ratification.
1893.
EXTRADITION TREATY.
Concluded January 14, 1893; ratification advised by the Senate
February 2, 1893; ratified by the President February 8, 1893;
ratifications exchanged March 18, 1893; proclaimed March 18,
1893.
IT. S. Treaties 1904, p. 764; 27 Stats, at Large, 972.
AETICLES.
I. Surrender of accused. VIII. Eestrictions on trials.
II. Extraditable crimes. IX. Property seized with fugitive.
III. Procedure. X. Persons claimed by other
IV. Provisional detention. countries.
V. Nondelivery of citizens. XI. Expenses.
VI. Political offenses. XII. Effect; ratification.
VII. Limitation.
APPENDIX II. 763
SWITZERLAND.1
(Swiss CONFEDERATION.)
1847.
CONVENTION AS TO PROPERTY RIGHTS.
Concluded May 18, 1847 ; ratification advised ~by the Senate April
26, 1848; ratified by the President April 29, 1848; ratifications
exchanged May 3, 1848; proclaimed May 4, 1848. (Treaties
and Conventions, 1889, p. 1071.)
U. S. Treaties 1904, p. 768; 9 Stats, at Large, Treaties, 100.
This convention of three articles is superseded by the Convention
of 1850.
1850.
CONVENTION OF FRIENDSHIP, COMMERCE, AND EXTRADITION.
Concluded November 25, 1850; ratification advised by the Senate
with amendments March 7, 1851; ratified by the President
March 12, 1851; ratification again advised by the Senate with
amendment May 29, 1854; finally ratified by the President
November 6, 1854; ratifications exchanged November 8, 1855;
proclaimed November 9, 1855. (Treaties and Conventions,
1889, p. 1072.)
U. S. Treaties 1904, p. 768; 11 Stats, at Large, 587.
Note. — Notice was given on March 23, 1899, of the intention of the United
States to arrest the operation of Articles VIII to XII, inclusive.
Articles XIII, XIV, XV, XVI, and XVII were terminated by the treaty
concluded May 14, 1900.
1 See Weiberg v. The St. Oloff, 2 Pet. Adm. 428, Fed. Cas. No. 17,357.
764
APPENDIX II.
AKTICLES.
I. Personal and property privi-
leges.
II. Civil duties and immunities.
III. Keturn of citizens.
IV. Passports.
V. Eeal and personal property
rights.
VI. Civil suits.
VII. Consular officers and privi-
leges.
VIII. Most favored nation com-
mercial privileges. (Not
in force.)
IX. Export and import duties.
(Not in force.)
X. Future commercial privi-
leges. (Not in force.)
XL Differential duties. (Not in
force.)
XII. Shipping; shipwrecks. (Not
in force.)
(Articles XIII, XIV, XV,
XVI, and XVII relate to
extradition, and were ter-
minated by Extradition
Treaty of 1900.)
XVIII. Duration.
XIX. Eatification.
1883.
REGISTRATION OF TRADEMARKS.
Dated April 27, 1883, and May 14, 1883.
U. S. Treaties 1904, p. 772.
1900.
EXTRADITION TREATY.
Concluded May 14, 1900; ratified by Senate June 5, 1900; ratified
by President February 25, 1901; ratified by Switzerland Jan-
uary 21, 1901; ratifications exchanged February 27, 1901;
proclaimed February 28, 1901.
U. S. Treaties 1904, p. 774; 31 Stats, at Large, 1928.
AETICLES.
I. Delivery of accused.
II. Extraditable crimes.
III. Attempts to commit extradita-
ble crimes.
IV. Special court.
V. Procedure.
VI. Provisional detention.
VII. Political offenses.
VIII. Limitations.
IX. Prior offenses; surrender to
third state.
X. Extradition deferred.
XL Persons demanded by third
state.
XII. Property seized with fugitive.
XIII. Expenses.
XIV. Annulling prior treaty; dura-
tion; ratification.
APPENDIX II. 765
TEXAS.
The admission of Texas into the United States December 29, 1845,
rendered the treaties concluded in 1838 obsolete.
1838.
CLAIMS CONVENTION.
Concluded April 11, 1838; ratification advised by the Senate June
13, 1838; ratified by the President June 21, 1838; ratifications
exchanged July 6, 1838; proclaimed July 6, 1838. (Treaties
and Conventions, 1889, p. 1078.)
U. S. Treaties 1904, p. 779; 8 Stats, at Large, 510.
By this treaty Texas agreed to pay $11,750 in settlement of
claims of citizens of the United States for the capture of the brigs
' ' Pocket ' ' and ' ' Durango, ' ' and other injuries.
1838.
BOUNDARY CONVENTION.
Concluded April 25, 1838; ratification advised by the Senate May
10, 1838; ratified by the President October 4, 1838; ratifica-
tions exchanged October 12, 1838; proclaimed October 13, 1838.
(Treaties and Conventions, 1889, p. 1079.)
U. S. Treaties 1904, p. 779; 8 Stats, at Large, 511.
This treaty provided for a commission to survey and mark the
boundary between the United States and Texas.
TONGA.
1886.
TREATY OF AMITY, COMMERCE, AND NAVIGATION.
Concluded October 2, 1886 ; ratification advised by the Senate, with
amendment, January 19, 1888; ratified by the President Feb-
ruary 7, 1888; ratifications exchanged August 1, 1888; pro-
claimed September 18, 1888. (Treaties and Conventions, 1889,
p. 1205.)
U. S. Treaties 1904, p. 780; 25 Stats, at Large, 1440.
766
APPENDIX II.
AKTICLES.
I. Amity. VIII.
II. Most favored nation privi- IX.
leges. X.
III. Trade privileges. XI.
IV. Commerce and navigation im- XII.
ports. XIII.
V. Shipping charges. XIV.
VI. Coaling station in Tonga. XV.
VII. Privileges to steam mail ships.
Whaling and fishing ships.
Personal exemptions.
Deserters from ships.
Consular officers.
Consular jurisdiction.
Religious freedom.
Duration.
Ratification.
TRIPOLI.
1796.
TREATY OF PEACE AND FRIENDSHIP.
Concluded November 4, 1796; ratification advised by the Senate
June 7, 1797; ratified by the President June 10, 1797 ; pro-
claimed June 10, 1797. (Treaties and Conventions, 1889, p.
3081.)
U. S. Treaties 1904, p. 784; 8 Stats, at Large, 154.
This treaty of twelve articles was superseded by the Treaty of
1805.
1805.
TREATY OF PEACE AND AMITY.
Concluded June 4, 1805; ratification advised by the Senate April
12, 1806; ratified by the President (?) ; ratifications exchanged
(?); proclaimed (?). (Treaties and Conventions, 1889, p.
1084.)
IT. S. Treaties 1904, p. 784; 8 Stats, at Large, 214.
APPENDIX II.
767
AETICLES.
I. Peace, friendship and com- XI.
merce.
II. Exchange of prisoners. XII.
III. Withdrawal of United
States forces. XIIL
IV. Neutral rights. XIV.
V. Liberation of captive citi- XV.
zens. XVI.
VI. Ships' passports. XVII.
VII. Purchase of prizes. XVIII.
VIII. Asylum for supplies. XIX.
IX. Shipwrecks. XX.
X. Assistance to vessels in ter-
ritorial waters.
Most favored nation com-
mercial privileges.
Consular responsibility in
Tripoli.
Salutes to naval vessels.
Religious freedom, etc.
Settlement of disputes.
Treatment of prisoners.
Captured vessels.
Judicial power of consul.
Homicides, etc.
Estates of deceased persons;
ratification.
TUNIS.
[Treaties with Tunis were superseded by treaty between United
States and France of May 9, 1904.]
1797.
TREATY OF AMITY, COMMERCE, AND NAVIGATION.
Concluded August, 1797 ; ratification advised ~by the Senate, with
amendments, March 6, 1798; alterations concluded March 26,
1799 ; ratification again advised T)y the Senate December 24,
1799. (Treaties and Conventions, 1889, p. 1090.)
U. S. Treaties 1904, p. 790; 8 Stats, at Large, 157.
AETICLES.
I. Amity. Xin.
II. Kestoration of property cap-
tured. XIV.
III. Bights of vessels. XV.
IV. Ships' passports.
V. Ships under convoy. XVI.
VI. Search of ships. XVII.
VII. Vessels purchased. XVIII.
VIII. Asylum for supplies and XIX.
shelter. XX.
IX. Shipwrecks. XXI.
X. Protection of ships in ter- XXII.
ritorial waters. XXIII.
XI. Salutes to naval vessels.
XII. Trading rights and privi-
leges.
Enemies' subjects serving as
sailors.
Import duties.
Freedom of commerce; pro-
hibitions.
Anchorage charges.
Consuls.
Eesponsibility for debts.
Effects of deceased persons.
Jurisdiction of consuls.
Homicides, etc.
Civil suits.
Settlement of disputes.
768 APPENDIX II.
1824.1
CONVENTION AMENDING TREATY OF AUGUST, 1797.
Concluded February 24, 1824; ratification advised by the Senate
January 13, 1825; ratified by the President January 21, 1825 ;
proclaimed January 21, 1825. (Treaties and Conventions,
1889, p. 1096.)
IT. S. Treaties 1904, p. 795; 8 Stats, at Large, 298.
(This treaty is reprinted in the treaty volume from the proclama-
tion of President Monroe.)
AETICLES.
VI. Search of ships; freedom of XII. Trading rights and privileges.
slaves. XIV. Most favored nation commer-
XI. Salutes to naval vessels. cial privileges.
TWO SICILIES.
(See ITALY.)
1832.
CLAIMS CONVENTION.
Concluded October 14, 1832; ratification advised by the Senate Jan-
uary 19, 1833; ratified by the President; ratifications exchanged
June 8, 1833; proclaimed August 27, 1833. (Treaties and
Conventions, 1889, p. 1100.)
U. S. Treaties 1904, p. 799; 8 Stats, at Large, 442.
This convention of three articles provided for the payment of
2,115,000 Neapolitan ducats for the seizure, etc., of United States
vessels by Murat in 1809, 1810, 1811, and 1812. The commission
of three to decide on the distribution of the indemnity met in
Washington September, 1833, and adjourned March 17, 1835. The
awards of the commission amounted to $1,925,034.68.
1 This treaty was superseded be- (for Bey of Tunis), proclaimed May
tween United States and France 9, 1904.
APPENDIX II. 769
1845.
TREATY OF COMMERCE AND NAVIGATION.
Concluded December 1, 1845; ratification advised ~by the Senate
April 11, 1846; ratified by the President April 14, 1846; rati-
fications exchanged June 1, 1846; proclaimed July 24, 1846.
(Treaties and Conventions, 1889, p. 1102.)
U. S. Treaties 1904, p. 799; 9 Stats, at Large, 13.
This treaty of thirteen articles was superseded by the convention
of October 1, 1855.
1855.
CONVENTION AS TO RIGHTS OF NEUTRALS AT SEA.
Concluded January 13, 1855; ratification advised by the Senate
March 3, 1855; ratified by the President March 20, 1855; rati-
fications exchanged July 14, 1855 ; proclaimed July 16, 1855.
(Treaties and Conventions, 1889, p. 1107.)
U. S. Treaties 1904, p. 799; 11 Stats, at Large, 607.
This convention of three articles was superseded by the Treaty of
1871 with Italy.
1855.
CONVENTION OF AMITY, COMMERCE AND NAVIGATION, AND EXTRA-
DITION.
Concluded October 1, 1855 ; ratification advised by the Senate with
amendments August 13, 1856; ratified by the President August
20, 1856; ratifications exchanged November 7, 1856; proclaimed
December 10, 1856. (Treaties and Conventions, 1889, p. 1109.)
U. S. Treaties 1904, p. 800; 11 Stats, at Large, 639.
This convention became obsolete by the consolidation of the Two
Sicilies with the Kingdom of Italy, 1861. See Treaty of March 23,
1868, and Treaty of February 26, 1871.
Treaties — 49
770
APPENDIX II.
VENEZUELA.
1836.
TREATY OF PEACE, AMITY, COMMERCE AND NAVIGATION.
Concluded January 20, 1836; ratification advised ~by the Senatt
March 23, 1836; ratified ~by the President April 20, 1836; rat\
fications exchanged May 31, 1836; proclaimed June 30, 183t
(Treaties and Conventions, 1889, p. 1119.)
U. S. Treaties 1904, p. 801; 8 Stats, at Large, 466.
Pursuant to a notice from the Government of Venezuela, thi
convention of thirty-four articles terminated January 3, 1851.
1859.
CLAIMS CONVENTION.
Concluded January 14, 1859; ratification advised by the Senat
February 21, 1861; ratified by the President February 26, 186:
(Treaties and Conventions, 1889, p. 1129.)
U. S. Treaties 1904, p. 801; 17 Stats, at Large, 803.
By this convention the claims of United States citizens again;
Venezuela, amounting to $130,000, for damages for being evicl
from Aves Island were acknowledged and payment provided foi
1860.
TREATY OF AMITY, COMMERCE AND NAVIGATION, AND EXTRADITION.
Concluded August 27, 1860; ratification advised by the Senate Feb-
ruary 12, 1861; ratified by the President February 25, 1861;
ratifications exchanged August 9, 1861; proclaimed September
25, 1861. (Treaties and Conventions, 1889, p. 1130.)
U. S. Treaties 1904, p. 801; 12 Stats, at Large, 1143.
This treaty of thirty-two articles terminated October 22, 1870,
pursuant to notice from Venezuela.
APPENDIX II. 771
1866.
CLAIMS CONVENTION.
Concluded April 25, 1866 ; ratification advised by the Senate July
5, 1866; ratified ~by the President August 8, 1866 ; ratifications
exchanged April 17, 1867 ; proclaimed May 29, 1867. (Treaties
and Conventions, 1889, p. 1140.)
TJ. S. Treaties 1904, p. 801; 16 Stats, at Large, 713.
The claims of citizens of the United States against Venezuela
were submitted by this convention to two commissioners and an
umpire, who met at Caracas, Venezuela, August 30, 1867, and ad-
journed August 3, 1868, awarding $1,253,310.30 against Venezuela.
1885.
CLAIMS CONVENTION.
Concluded December 5, 1885; ratification advised by the Senate
with amendments April 15, 1886; ratified by the President
August 7, 1888; ratifications exchanged June 3, 1889; pro-
claimed June 4, 1889.
U. S. Treaties 1904, p. 802; 28 Stats, at Large, 1053.
1888.
CONVENTION TO REMOVE DOUBTS AS TO THE MEANING OF THE CON-
VENTION OP 1885.
Concluded March 15, 1888; ratification advised by the Senate June
18, 1888; ratified by the President August 7, 1888; ratifications
exchanged June 3, 1889; proclaimed June 4, 1889.
U. S. Treaties 1904, p. 802; 28 Stats, at Large, 1064.
1888.
ONVENTION EXTENDING THE TIME FOB RATIFICATION OF THE CON-
VENTION OF 1885.
included October 5, 1888; ratification advised by the Senate
December 5, 1888; ratified by the President January 30, 1889 •
ratifications exchanged June 3, 1889; proclaimed June 4, 1889
U. S. Treaties 1904, p. 802; 28 Stats, at Large, 1067.
— cu
772 APPENDIX II.
t
The commission authorized by the three above conventions to
reopen and decide the awards under the Treaty of 1866 was organ-
ized in Washington, D. C., September 3, 1889, and adjourned Sep-
tember 2, 1890, awarding claims against Venezuela amounting to
$980,572.60.
1892.
CLAIMS CONVENTION.
Concluded January 19, 1892; ratification advised by the Senate
March 17, 1892; ratified by the President July 2, 1894; ratifi
cations exchanged July 28, 1894; proclaimed July 30, 189-
U. S. Treaties 1904, p. 803; 28 Stats, at Large, 1183.
By this convention the claim of the Venezuelan Steam Tran
portation Company against Venezuela was referred to the arbitra
tion-of two commissioners and an umpire who rendered an awar
of $141,800.
1903.
PROTOCOL WITH VENEZUELA SUBMITTING TO ARBITRATION CLAIM
AGAINST VENEZUELA.
Concluded February 17, 1903.
U. S. Treaties 1904, p. 803.
AETICLES.
I. Commission; decision. IV. Compensation.
II. Basis of decision. V. Source of payment.
III. Eecord. VI. Prompt payment.
WtiRTTEMBERG.
(See GERMAN EMPIRE.)
1844.
CONVENTION ABOLISHING DROIT D'AUBAINE AND TAXES ON EM
GRATION.
Concluded April 10, 1844; ratification advised by the Senate Jun
12, 1844; ratified by the President June 22, 1844; ratifications
exchanged October 3, 1844; proclaimed December 16, 1844
(Treaties and Conventions, 1889, p. 1144.)
U. S. Treaties 1904, p. 806; 8 Stats, at Large, 588.
APPENDIX II. 773
ARTICLES.
I. Taxes abolished. V. Civil suits.
II. Disposal of real property. VI. Extent of convention.
III. Disposal of personal property. VII. Eatification.
IV. Property of absent heir*.
1853.
EXTRADITION.
The King of WiirtteEiberg, October 13, 1853, acceded to the
extradition Treaty of 1852 with Prussia and the states of the Ger-
manic Confederation.
U. S. Treaties 1904, p. 807; 10 Stats, at Large, 105.
1868.
CONVENTION AS TO NATURALIZATION AND EXTRADITION.
Concluded July 27, 1868; ratification advised by the Senate April
12, 1869; ratified ~by the President April 18, 1869; ratifications
exchanged August 17, 1869; exchange of ratifications con-
sented to by the Senate March 2, 1870; proclaimed March 7,
1870. (Treaties and Conventions, 1889, p. 1146.)
U. S. Treaties 1904, p. 808; 16 Stats, at Large, 735. "
ARTICLES.
I. Naturalization recognized. IV. Renunciation of naturalization.
II. Liability for prior offenses. V. Duration.
II. Extradition treaty renewed. VI. Eatification.
ZANZIBAR.
(See MUSCAT.)
1886.
TREATY AS TO DUTIES ON LIQUORS AND CONSULAR POWERS.
Concluded July 3, 1886; ratification advised by the Senate, with
amendments, April 12, 1888; ratified by the President April
20, 1888; ratifications exchanged June 29, 1888; proclaimed
August 17, 1888. (Treaties and Conventions, 1889, p. 1209.)
U. S. Treaties 1904, p. 811; 25 Stats, at Large, 1438.
ARTICLES.
I. Duty on liquors. III. Ratification.
I. Consular powers.
APPENDIX ill.
INTERNATIONAL CONVENTIONS AND ACTS
TO WHICH THE UNITED STATES
IS A PARTY.
1864.
AMELIORATION OP THE CONDITION OF THE WOUNDED IN TIME OF
WAR.
Concluded at Geneva, Switzerland, August 22, 164; ratifications
exchanged by original signatories June 22, 1865; adhesion de-
clared by the President March 1, 1882; accession advised by
the Senate March 16, 1882; adhesion accepted by the Swiss
Confederation June 9, 1882; proclaimed July 26, 1882.
(Treaties and Conventions, 1889, p. 1150.)
U. S. Treaties 1904, p. 815; 22 Stats, at Large, 940.
(The President's ratification of the act of accession, as trans-
mitted to Berne and exchanged for the ratifications of the other
signatory and adhesory powers, embraces the French text of the
convention of August 22, 1864, and the additional articles of Oc-
tober 20, 1868. The French text is, therefore, for all international
purposes, the standard one. The text printed in the treaty volumes
is from the proclamation of the President.
The adhesion of the following states has been communicated:
Sweden and Norway, December 13, 1864; Greece, January 5-17,
1865; Great Britain, February 18, 1865; Mecklenburg-Schwerin,
March 9, 1865 ; Turkey, July 5, 1865 ; Wiirttemberg, June 2, 1866 ;
Hesse, June 22, 1866; Bavaria, June 30, 1866; Austria, July 21,
1866 ; Portugal, August 9, 1866 ; Saxony, October 25, 1866 ; Russia,
May 10-22, 1867; Persia, December 5, 1874; Roumania, November
18-30, 1874 ; Salvador, December 30, 1874 ; Montenegro, November
(775)
776 APPENDIX III.
17-29, 1875; Servia, March 24, 1876; Bolivia, October 16, 1879;
Chile, November 15, 1879 ; Argentine Republic, November 25, 1879 ;
Peru, April 22, 1880; Bulgaria, May 27, 1884; Japan, June 11,
1886 ; Kongo Free State, January 25, 1889 ; Venezuela, August 2,
1894; Uruguay, June 20, 1900; Korea, January 8, 1903; Guate-
mala, April 13, 1903.)
AKTICLES.
I. Neutrality of ambulances and VI. Care of sick and wounded;
hospitals. evacuations.
II. Neutrality of hospital employ- VII. Flag and arm-badge.
ees. VIII. Regulation of details of exe-
III. Extent of neutrality. cution.
IV. Equipment. IX. Accession of other countries.
V. Neutrality of persons caring X. Ratification.
for the wounded.
1868.
(In the proclamation of the foregoing convention concluded Octo-
ber 20, 1868, the President inserted the certain additional articles,
the ratification of which had not been exchanged by the signatory
parties. Although not in force as a treaty, they are printed in the
treaty volume, as the Senate advised and consented to their ratifica-
tion at the same time with the convention of August 22, 1864.)
IT. S. Treaties 1904, p. 818.
1875.
INTERNATIONAL BUREAU OF WEIGHTS AND MEASURES.
Concluded at Paris May 20, 1875; ratification advised by the
Senate May 15, 1878; ratified by the President May 28, 1878;
ratifications exchanged August 2, 1878; proclaimed September
27, 1878. (Treaties and Conventions, 1889, p. 1157.)
U. S. Treaties 1904, p. 823; 20 Stats, at Large, 709.
(The treaty submitted to the Senate and attached to the proclama-
tion is in the French language.)
APPENDIX III.
777
I. International Bureau
Weights and Measures es-
tablished.
II. Special building.
III. International committee.
IV. General conferences.
V. Regulations.
VI. Duties of the bureau.
VII. Bureau officials.
ARTICLES.
of VIII. Prototypes of meter and kilo-
gram.
IX. Expenses.
X. Contributions.
XI. Contributions from acceding
countries.
XII. Future modifications*
XIII. Duration.
XIV. Ratification.
1883.
CONVENTION FOB INTERNATIONAL PROTECTION OF INDUSTRIAL PROP-
ERTY.
Concluded at Paris March 20, 1883; adhesion advised by the Sen-
ate March 2, 1887 ; ratified by the President March 29, 1887;
accession announced to Swiss Confederation May 30, 1887;
proclaimed June 11, 1887. (Treaties and Conventions, 1889,
p. 1168.)
U. S. Treaties 1904, p. 834; 25 Stats, at Large, 1372.
(The original Convention is in the French language.)
ARTICLES.
I. Union for protection of indus- XI.
trial property formed.
II. Mutual protection of patents, XII.
trademarks, and commer-
cial names. XIII.
III. Protection of alien residents.
IV. Protection to applicants. XIV.
V. Introduction by patentee of XV.
articles patented in other
countries. XVI.
VI. Deposit of trademarks. XVII.
VII. Articles protected. XVIII.
VHI. Commercial names protected. XIX.
IX. Seizure of unlawfully marked
goods.
X. Articles with false place of ori-
gin.
Temporary protection to ar-
ticles at expositions.
Central depot of informa-
tion.
International bureau estab-
lished.
International conferences.
Special diplomatic conven-
tions.
Adhesion of other states.
Laws to be enacted.
Duration.
Ratification.
Protocol.
778 APPENDIX III.
1891.
SUPPLEMENTARY CONVENTION.
Concluded at Madrid April 15, 1891; ratification advised by the
Senate March 2, 1892; ratified by the President March 30,
1892; ratifications exchanged June 15, 1892; proclaimed June
22, 1892.
IT. S. Treaties 1904, p. 842 ; 27 Stats, at Large, 958.
ARTICLES.
I. Expenses of International Bu- II. Ratification; duration,
reau.
1900.
ADDITIONAL ACT CONCLUDED AT BRUSSELS FOR THE PROTECTION OF
INDUSTRIAL PROPERTY.
Concluded December 14, 1900; ratification advised by Senate
March 7, 1901; ratified by President April 16, 1901; ratifica-
tions deposited at Brussels May 3, 1901; proclaimed August
25, 1902.
U. S. Treaties 1904, p. 843; 32 Stats, at Large, 1930.
•
AETICLES.
I. Modification of convention II. Addition to final protocol.
March 20, 1883. III. Duration; ratification.
1884.
CONVENTION FOR PROTECTION OF SUBMARINE CABLES.
Concluded March 14, 1884; ratification advised by the Senate
June 12, 1884; ratified by the President January 26, 1885;
ratifications exchanged April 16, 1885; proclaimed May 22,
1885. (Treaties and Conventions, 1889, p. 1176.)
U. S. Treaties 1904, p. 848; 24 Stats, at Large, 989.
(The original is in the French language.)
APPENDIX III. 779
AETICLES.
I. Application of convention. XI. Trials.
II. Punishment for injuries to ca- XII. Laws to be enacted.
bles- XIII. Communication of legisla-
III. Requirements for cable lay- tion.
ing. XIV. Adhesion of other states.
IV. Payment for repairs. XV. Belligerent action not af-
V. Eules for ships laying cables. feeted.
VI. Vessels to avoid cables. XVI. Operation; duration.
VII. Losses from cables. XVII. Ratification.
VIH. Jurisdiction of courts. Additional article. British
IX. Prosecution for infractions. colonies.
X. Evidence of violations.
1886.
DECLARATION RESPECTING THE INTERPRETATION OF ARTICLES II AND
IV OP THE CONVENTION OP MARCH 14, 1884, FOR THE PROTEC-
TION OF SUBMARINE CABLES.
Signed at Paris December 1, 1886; ratification advised by the Sen-
ate February 20, 1888; ratified by the President March 1,
1888; 'proclaimed May 1, 1888. (Treaties and Conventions,
1889, p. 1184.)
U. S. Treaties 1904, p. 855; 25 Stats, at Large, 1425.
1887.
FINAL PROTOCOL OF AGREEMENT BETWEEN THE UNITED STATES OF
AMERICA AND OTHER POWERS FIXING MAY IST, 1888, AS THE
DATE OF EFFECT OP THE CONVENTION CONCLUDED AT PARIS
MARCH 14, 1884, FOR THE PROTECTION OF SUBMARINE CABLES.
Signed at Paris July 7, 1887; ratification advised by the Senate
February 20, 1888; ratified by the President March 1, 1888;
proclaimed May 1, 1888. (Treaties and Conventions, 1889,
p. 1184.)
U. S. Treaties 1904, p. 856; 25 Stats, at Large, 1425.
780
• APPENDIX III.
1886.
CONVENTION FOR INTERNATIONAL EXCHANGE OF OFFICIAL DOCU-
MENTS, SCIENTIFIC AND LITERARY PUBLICATIONS.
Concluded at Brussels March 15, 1886; ratification advised ~by the
Senate June 18, 1888; ratified by the President July 19, 1888;
ratifications exchanged January 14, 1889; proclaimed Jan-
uary 15, 1889.
U. S. Treaties 1904, p. 857; 25 Stats, at Large, 1465.
(The text in the treaty volume published by the Government is
reprinted from the translation made in the Department of State
and proclaimed by the President with the original treaty, which
is in the French language.)
I. Bureaus of exchanges to be es-
tablished.
II. Publications to be exchanged.
III. Lists to be printed.
IV. Number of copies.
V. Transmission of documents.
AETICLES.
VI. Expense of transmittal.
VII. Publications of learned asso-
ciations.
VIII. Application of convention.
IX. Adhesion of other states.
X. Eatifications; duration.
1886.
CONVENTION FOR THE IMMEDIATE EXCHANGE OF OFFICIAL JOURNALS,
PARLIAMENTARY ANNALS, AND DOCUMENTS.
Concluded at Brussels March 15, 1886; ratification advised by the
Senate June 18, 1888; ratified by the President July 19, 1888;
ratifications exchanged January 14, 1889; proclaimed Jan-
uary 15, 1889.
U. S. Treaties 1904, p. 859; 25 Stats, at Large, 1469.
AETICLES.
exchange of official II. Adhesion of other states.
T. Immediate
journals, parliamentary annals,
documents.
III. Eatification; duration.
APPENDIX III. 781
1890.
GENERAL ACT FOR THE REPRESSION OF AFRICAN SLAVE TRADE.
Signed July 2, 1890; ratification advised by the Senate January
11, 1892; ratified by the President January 19, 1892; rati-
fications deposited with Belgian Government February 2, 1892;
proclaimed April 2, 1892.
U. S. Treaties 1904, p. 861; 27 Stats, at Large, 886.
(The original of this treaty is in the French language and the
text given in the volumes published by the Government is from the
translation submitted to the Senate and attached to the proclama-
tion.)
AETICLES.
CHAPTER I. — Slave-trade countries. — Measures to be taken in the places of origin.
I. Measures to counteract IX. Eegulations for use of
slave trade. firearms.
II. Duties of stations, cruis- X. Transit of arms and am-
ers and posts. munition.
III. Support of powers. XI. Information to be fur-
IV. National associations. nished.
V. Legislation to be enact- XII. Legislation to punish of-
ed. fenders.
VI. Eeturn of liberated XIII. Prevention of introduc-
slaves. tion of firearms.
VII. Protection of fugitive XIV. Duration of firearms pro-
slaves, visions.
VIII. Importation of firearms
prohibited.
CHAPTER II. — Caravan routes and transportation of slaves by land.
XV. Stoppage of convoys. XVIII. Care of liberated slaves.
XVI. Posts on caravan routes. XIX. Punishments.
XVII. Prevention of sales, etc.
CHAPTER III. — Eepression of slave trade by sea.
Section I. — General provisions.
XX. Agreement of powers. XXVI. Exchange of informa-
XXI. Maritime zone. tion.
XXII. Eight of search, etc. XXVII. International Bureau at
XXIII. Vessels liable to search, Zanzibar.
etc. XXVIII. Slaves escaping to ships
XXIV. Effect of present conven- of war.
tions. XXIX. Eelease of slaves on na-
XXV. Unlawful use of flag. tive vessels.
782 APPENDIX III.
Section II. — Regulations concerning the use of the flags and supervision ~by
cruisers.
1. Eules for granting the flag to native vessels, and as to crew lists and mani-
fests of black passengers on board.
XXX. Control over native ves- XXXVI. Carriage of negro pas-
sels. sengers.
XXXI. Definition of native ves- XXXVII. Entry of vessels.
sels. XXXVIII. Negro passengers not al-
XXXII. Native vessels which lowed on native ves-
may carry flag. sels.
XXXin. Eenewal of authority. XXXIX. Vessels excepted.
XXXIV. Act of authority. XL. Forfeiture of license.
XXXV. Crew lists. XLI. Forms to be issued.
2. — The stopping of suspected vessels.
XLII. Examination of papers. XL VII. Eeport of detentions.
XLIII. Boarding. XLV3JL Communication to Inter-
XLIV. Papers to be examined. national Bureau.
XLV. Examination of cargo. XLIX. Disposal of seized ves-
XLVI. Minute of boarding offi- gels.
cer.
3. — Of the examination and trial of vessels seized.
L. Trials. LVI. Trials.
LI. Disposal of arrested ves- LVII. Summary proceedings.
sels. LVUI. Eelease of innocent ves-
LII. Result of condemnation. sels; damages.
LIII. Indemnity for illegal ar- LIX. Penalties.
rests. LX. Special tribunals.
LIV. Arbitration of disputed LXI. Communication of in-
decisions, structions.
LV. Choice of arbitrators.
CHAPTER IV. — Countries to which slaves are sent, whose institutions recognize
the exi-stence of domestic slavery.
LXII. Prohibition of slave LXVIII. Turkish law.
trade. LXIX. Assistance by Shah of
LXUI. Disposition of liberated Persia.
slaves. LXX. Assistance by Sultan of
LXIV. Freedom of fugitive Zanzibar.
slaves. LXXI. Assistance of diplomatic
LXV. Sales declared void. and consular officers.
LXVI. Examination of native LXXIL Liberation office.
vessels. LXXIIL Exchange of statistics.
LXVIL Penal punishments.
APPENDIX III. 783
CHAPTER V.— Institutions intended to insure the execution of the general act.
Section I. — Of the international maritime office.
LXXIV. International office at LXXVII. Objects.
Zanzibar. LXXVin. Archives; translations.
LXXV. Organization. LXIX. Branch offices.
LXXVI. Expenses. LXXX. Annual reports.
Section II. — Of the exchange between the Governments of documents and in-
formation relative to the slave trade.
LXXXI. Exchange of information. LXXXIV. Publications.
LXXXII. Central exchange office. LXXXV. Expenses.
LXXXIII. Reports from Zanzibar
office.
Section III. — Of the protection of liberated slaves.
LXXXVI. Offices for liberating LXXXVUL Refuge for women and
slaves. children.
LXXXVII. Registry of releases. LXXXIX. Protection of freed
slaves.
CHAPTER VI. — Measures to restrict the traffic in spirituous liquors.
XC. Prohibited zone. XC3H. Excise duty.
XCL Prohibition of importa- XCIV. Prevention of intro-
tion and manufac- duction of liquors,
ture. XCV. Information to be com-
XCII. Import duty in certain municated.
localities.
CHAPTER VII. — Final provisions.
XCVI. Contrary stipulations XCIX. Ratification.
repealed. C. Duration.
XCVII. Modifications. Protocol.
XCVIII. Adhesion of powers.
1899.
ADHESION OF THE UNITED STATES TO THE CONVENTION SIGNED AT
BRUSSELS, JUNE 8, 1889, BY THE PLENIPOTENTIARIES OF CER-
TAIN POWERS FOR THE EEGULATION OF THE IMPORTATION OF
SPIRITUOUS LIQUORS INTO CERTAIN REGIONS OF AFRICA.
Concluded June 8, 1899; adhesion advised by Senate December 14,
1900; declaration of adhesion by President February 1, 1901;
proclaimed February 6, 1901.
U. S. Treaties 1904, p. 888; 31 Stats, at Large, 1915.
784 APPENDIX III.
AETICLES.
I. Import duty. IV. Eatification.
II. Excise duty. V. Effect.
III. Adhesion of powers.
1890.
CONVENTION CONCERNING THE FORMATION OF AN INTERNATIONAL
UNION FOR THE PUBLICATION OF CUSTOMS TARIFFS.
Signed at Brussels July 5, 1890; ratification advised by the Sen-
ate December 13, 1890; ratified by the President December 17,
1890; proclaimed December 17, 1890.
U. S. Treaties 1904, p. 891; 26 Stats, at Large, 1518.
AETICLES.
I. International Union formed. XI. Assignment of quotas.
II. Object. XII. Official publications to be fur-
Ill. International Bureau. nished Bureau.
IV. Bulletin to be published. XIII. Eegulations to be established.
V. Personnel of Bureau. XIV. Accession of other states.
VI. Language to be used. XV. Duration, additions.
VII. Annual reports. Eegulations.
VIII. Expenditures. Final declarations.
IX. Quotas of contracting states.
X. Eeduction to certain coun-
tries.
1901
FINAL PROTOCOL ENTERED INTO BETWEEN THE PLENIPOTENTIARIES
OF VARIOUS POWERS AT THE CONCLUSION OF THE SO-CALLED
''BOXER" TROUBLES IN 1900
Concluded at Peking, Septemb<r 7, 1901. (Appendix, For. Rel.
U. S, 1901.)
U. S. Treaies 1904, p. 900.
iPPENDIX III. 785
AETICLES.
I. (a) Assassination of German VI. Indemnity; payment.
Minister. VII. Legation quarter,
(ft) Erection of monument. VIII. Eazing of forts.
II. (a) Punishment. IX. Points occupied.
(fe) Suspension of cfficial ex- X. Publication of imperial edicts,
animations. XI. Amendments to commercial
III. Assassination of Japanese treaties; improvement of
chancellor. rivers.
IV. Erection of monuments. XII. Office of Foreign Affairs;
V. Importation of arms, etc. evacuation of Peking, etc.
HAGUE CONVENTIONS.
1899.
CONVENTION FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DIS-
PUTES.
Concluded July 29, 1899; ratification advised by Senate February
5, 1900; lfatified by President April 7, 1900; ratifications de-
posited uith the Netherlands Government September 4, 1900;
proclaim '.d November 1, 1901.
IT. S. Treaties 1904, p. 907; 32 Stats, at Large, 1779.
ARTICLES.
Title I. Maintenance of general peace.
I. Pacific settlement of international differences.
Title II. Mediation.
II. Good offices. VI. Effect of mediation.
Ill Offer of mediation. VII. Acceptance of mediation.
* r . Mediator. VIII. Special mediation ; choos-
V. Termination of mediator's ing mediators, etc.
duties.
Title III. International commissions of inquiry.
IX. Investigations by commis- XII. Facilities supplied com-
sion. mission.
X. Special agreement; juris- XIII. Eeport.
diction. XIV. Effect of report.
XI. Formation.
Treaties — 50
786
APPENDIX III.
Title IV. International arbitration.
Chapter I. System of arbitration.
XV. Object. XVIII. Submission to award.
XVI. Recognition. XIX. Extension of arbitration.
XVII. Questions considered.
Chapter II. Permanent court of arbitration.
XXVI. Special board of arbitra-
tion; extension of juris-
diction.
XXVII. Notice to disputants.
XXVIII. Administrative council.
XXIX. Expenses of bureau.
XX. Organization.
XXI. Jurisdiction.
XXII. International bureau.
XXIII. Arbitrators.
XXIV. Selection of arbitrators;
assembling of tribunal.
XXV. Seat of tribunal.
Chapter III. Arbitral procedure.
XXX. Rules.
XXXI. Special act.
XXXII. Selection of arbitrators.
XXXIII. Sovereign as arbitrator.
XXXIV. Umpire.
XXXV. Vacancies.
XXXVI. Place of session.
XXXVII. Agents, counsel, etc.
XXXVIII. Language.
XXXIX. Procedure.
XL. Exchange of documents.
XLI. Discussions.
XLII. Limiting discussions.
XLIII. New evidence.
XLIV. Production of acts.
XLV. Oral arguments.
LXVI. Rulings.
XLVIL Questions by tribunal.
XL VIII. Interpretation.
XLIX. Rules of procedure.
L. Closing discussion.
LI. Deliberation.
LII. Award.
LIII. Announcing award.
LIV. Effect of award.
LV. Revision of award.
LVI. Parties bound by award.
LVII. Expenses of tribunal.
LVIII. Ratification.
LIX. Adhesion by powers non-
signatory.
LX. Adhesion by powers not
represented.
LXI. Denunciation.
1899.
DECLARATION AS TO LAUNCHING OF PROJECTILES AND EXPLOSIVES.
Concluded July 29, 1899; ratification advised by Senate February
5, 1900; ratified by President April 7, 1900; ratifications de-
posited with Netherlands Government September 4, 1900; pro-
claimed November 1, 1901.
U. S. Treaties 1904, p. 922; 32 Stats, at Large, 1839.
This declaration expired July 29, 1904.
APPENDIX 111. 787
1899.
CONVENTION FOR THE ADAPTATION TO MARITIME WARFARE OF THE
PRINCIPLES OF THE GENEVA CONVENTION OF AUGUST 22, 1864.
Concluded July 29, 1899; ratification advised by Senate May •/,
1900; ratified by the President August 3, 1900; ratifications
deposited with the Netherlands Government September 4,
1900; proclaimed November 1, 1901.
U. S. Treaties 1904, p. 924; 32 Stats, at Large, 1827.
ARTICLES.
I. Military hospital ships. VIII. Disabled prisoners.
II. Private hospital ships. IX. Prisoners of war.
III. Hospital ships of neutral X. Excluded.
countries. XI. Powers bound by rules.
IV. Use of hospital ships. XII. Katification.
V. Color; flag. XIII. Nonsignatory powers.
VI. Neutral vessels. XIV. Denunciation.
VII. Belief staffs.
1899.
CONVENTION WITH RESPECT TO THE LAWS AND CUSTOMS OF WAR ON
LAND.
Concluded July 29, 1899; ratification advised by the Senate March
14, 1902; ratified by the President March 19, 1902; ratifica-
tions deposited with the Netherlands Government April 5,
1902; proclaimed April 11, 1902.
U. S. Treaties 1904, p. 931; 32 Stats, at Large, 1803.
AETICLES.
I. Instructions to forces. IV. Nonsignatory powers.
II. When binding. V. Renunciation.
III. Ratification.
ANNEX.
Section «T. — Belligerents.
Chapter I. — Qualifications of belligerents.
I. Application of laws of III. Combatants; noncombat-
war. ants.
II. Unorganized belligerents.
788 APPENDIX III.
Chapter II. — Prisoners of war.
IV. Treatment. XII. Eecapture after parole.
V. Confinement. XIII. Eeporters, sutlers, etc.
VI. Employment. XIV. Bureau of information.
VII. Maintenance. XV. Belief society.
VIII. Laws; regulations; recap- XVI. Postage; gifts.
ture. XVII. Officers' pay.
IX. False statements. XVIII. Eeligious freedom.
X. Parole. XIX. Wills.
XI. Parole voluntary. XX. Eepatriation.
Chapter III. — Sick and wounded.
XXI. Obligations of belligerents.
Section II.— Hostilities.
Chapter I. — Means of injuring enemy; sieges; bombardments.
XXII. Means of injuring enemy. XXVI. Warning authorities.
XXIII. Prohibitions. XXVII. Eeligious edifices, etc.
XXIV. Obtaining information. XXVIII. Pillage.
XXV. Attack of towns, etc.
Chapter II. — Spies.
XXIX. Who considered spies. XXXI. Eesponsibility for pre-
XXX. Trial. vious acts.
Chapter III. — Flags of truce.
XXXII. Bearer. XXXIV. Treachery.
XXXIII. Eeceiving flag.
Chapter IV.— Capitulation.
XXXV. Eules.
Chapter V. — Armistices.
XXXVI. Suspension of hostilities. XXXIX. Terms.
XXXVII. General and local. , XL. Violation.
XXXVHI. Notification. XLI. Punishment.
APPENDIX III. 789
Section HI. — Military authority over hostile territory.
XLIL Territory; occupation. L. Penalty.
XLIII. Ee-establishing order. LI. Collection of taxes.
XLIV. Forced military service. LII. Eequisition and services.
XLV. Oath. LITE. Seizure of public cash,
XL VI. Eights respected. etc.; railways, etc.
XL VII. Pillage. LIV. Plant of railways.
XL VIII. Taxes, dues, etc. LV. Administration.
XLIX. Taxes for military neces- LVI. Eeligious, etc., institu-
sities. tion.
Section IV. — Internment of belligerents and care of wounded in neutral coun-
tries.
XVII. Internment in neutral LIX. Transit.
state. LX. Geneva convention.
LVIII. Treatment.
1905.
TREATY BETWEEN THE UNITED STATES AND CERTAIN POWERS FOR
THE ARBITRATION OF PECUNIARY CLAIMS.
Signed at Mexico January 30, 1902; ratification advised by the
Senate January 11, 1905; ratified "by the President of the
United States January 28, 1905; ratifications deposited with
the Mexican Government February 10,1905; proclaimed
March 24, 1905.
Treaties and Proclamations, 2845; 34 Stats, at Large, pt. 3.
AETICLES.
I. Pecuniary claims to be arbi- III. States affected.
trated. IV. Special treaty provisions.
II. Permanent court of arbitration V. Effect and duration.
to decide. ]
APPENDIX IV
CHRONOLOGICAL LIST OF TREATIES, CONVEN-
TIONS, ETC.
Country.
France
France
France
France
Netherlands .
Netherlands .
Great Britain
Great Britain
France
Sweden
Great Britain. .
Prussia
Morocco
France
Great Britain . .
Algiers
Spain .
Great Britain. .
Tripoli
Tunis
Great Britain
Prussia
France
Great Britain. .
Spain
ance
France
France
Tripoli
Great Britain . .
Algiers
Great Britain. .
Sweden and Nor
way
Algiers
Subject.
Alliance
Separate and secret article. . . .
Amity and Commerce
Contract for the Repayment of
Loans made by the King of
France
Peace and Commerce
Recaptured vessels
Provisional Peace
Armistice, cessation of hostili-
ties
Contract for a New Loan and
the Repayment of the Old
Loans made by the King of
France
Amity and Commerce
Definitive Peace
Amity and Commerce
Peace and Friendship
Consular
Amity, Commerce, and Naviga-
tion
Peace and Amity . . . . .
Friendship, Boundaries, Com-
merce and Navigation
Explanatory to Article III,
Treaty of 1794
Peace and Friendship
Amity, Commerce, and Naviga-
tion
Explanatory to Article V,
Treaty of 1794
Amity and Commerce
Peace, Commerce, and Naviga-
tion
Payment of Indemnities and
Settlement of Debts
Claims ,
Cession of Louisiana
Payment for the Purchase of
Louisiana
Claims
Peace and Amity
Peace and Amity
Amity and Peace
Commerce and Navigation...
Amity and Commerce
Peace and Amity
Signed.
February 6, 1778.
February 6, 1778.
February 6, 1778.
July 16, 1782
October 8. 1782 . . .
October 8, 1782. . .
November 30, 1782
January 20, 1783.
February 25, 1783.
April 3, 1783
September 3, 1783.
September 10, 1785
January, 1787. . . .
November 14, 1788
November 19, 1794
September 5, 1795.
Proclaimed.
May 4, 1778.a
May 4, 1778.a
May 4, 1778.a
January 22, 1783.a
January 22, 1783.
January 23, 1783.
April 11, 1783.
October 31, 1783.a
September 25, 1783.
January 14, 1784.
October, 1786.b
July 18, 1787.a
February 29, 1796.
March 2, 1796.C
October 27, 1795. August 2, 1796.
May 4, 1796
November 4, 1796.
May 9. 1796.C
June 10, 1797.
August, 1797 December 24, 1799.C
March 15. 1798. .
July 11, 1799
June 5, 1798.C
November 4, 1800.
September 30- 1800 December 21, 1801.
January 8, 1802 . .
August 11, 1802. .
April 30, 1803
April 30, 1803.
April 30, 1803.
June 4, 1805. .
December 24, 1814.
June 30, 1815.
luly 3, 1815. . .
April 27, 1802.
December 22, 1818.
October 21, 1803.
October 21, 1803-
October 21, 1803.
April 12, 1806. c
February 18, 1815.
December 26, 1815.
December 22, 1815.
September 4,1816. December 31, 1818.
December 22, 23,
1816 February 11, 1822.
a Ratified by Congress. b Ratifications exchanged.
c Ratification advised by the Senate.
(791)
792
APPENDIX IV.
Country.
Subject.
Signed.
Proclaimed.
Great Britain . . .
Naval Forces on the Great
Lakes
April, 1817
April 28, 1818.
3reat Britain . . .
Respecting Fisheries, Bound-
ary, and the Restoration of
Slaves
October 20, 1818. .
January 30, 1819.
Spain
Friendship, Cession of the
Floridas, and Boundaries . .
February 22, 1819.
February 22, 1821.
France
Great Britain. . .
Navigation and Commerce
Claims
June 24, 1822
July 12, 1822
February 12, 1823.
January 11, 1823.
Tunis
Amending Treaty of August,
1797
February 24, 1824.
January 21, 1825.
_
Pacific Ocean and Northwest
Coast of America
April 17, 1824
January 12, 1825.
Colombia
Amity, Commerce, and Naviga-
tion v
October 3, 1824. .
May 31, 1825.
Central America.
Peace, Amity, Commerce, and
Navigation
December 5, 1825.
October 28, 1826.
Denmark
Friendship, Commerce and Navi-
gation
April 26, 1826
October 14, 1826.
Great Britain . . .
Relative to the Indemnity for
Slaves
November 13, 1826
March 19, 1827.
Sweden and Nor-
July 4, 1827
January 19, 1828.
Great Britain . . .
Continuing in Force Article
III, Treaty of 1818
August 6, 1827 . . .
May 15, 1828.
Great Britain . . .
Commercial
August 6, 1827 . . .
May 15, 1828.
Great Britain . . .
Relative to the Northeastern
Boundary
September 29, 1827
May 15, 1828.
Hanseatic Repub-
Friendship, Commerce, and
lics
December 20, 1827
June 2, 1828.
Mexico
Prussia
Commerce and Navigation
January 12, 1828. .
May 1, 1828
April 5, 1832.
March 14, 1829.
Hanseatic Repub-
Additional Article to Conven-
lics
tion of 1827
June 4, 1828
July 29, 1829.
Brazil
Amity, Commerce, and Naviga-
tion
December 12, 1828
March 18, 1829.
Austria-Hungary .
Claims
August 27, 1829. .
March 28, 1830. . .
February 10, 1831.
June 5, 1830.
Ottoman Empire.
Commerce and Navigation
May 7, 1830
February 4, 1832.
April 5, 1831
April 5, 1832.
Mexico
Amity, Commerce, and Naviga-
tion
April 5, 1831
April 5, 1832.
Claims and Duties on Wines
and Cotton
July 4, 1831
July 13, 1832.
Chile
Peace, Amity, Commerce, and
May 16, 1832
April 29, 1834.
Two Sicilies. . . .
Claims
October 14. 1832 . .
Augus.t 27, 1833.
Russia
Commerce and Navigation
December 18, 1832
May 11, 1833.
Siam
Amity and Commerce
March 20, 1833...
June 24, 1837.
Chile
Additional to the General
Treaty of 1832
September 1, 1833.
April 29, 1834.
Muscat
Amity and Commerce
September 21, 1833
June 24, 1837.
Spain . .«
Mexico
Claims
Limits
February 17, 1834.
April 3, 1835
November 1, 1834.
April 21, 1836.
Venezuela
Peace, Amity, Commerce, and
January 20, 1836. .
June 30, 1836.
Morocco
Peace and Friendship
September 16, 1836
January 30, 1837.
Peru-Bolivia . . .
Peace, Friendship, Commerce,
November 30, 1836
October 3, 1838.
Commerce and Navigation
December 10, 1837
August 30, 1838.
Texas
April 11, 1838
July 6, 1838.
Texas
April 25, 1838
October 13, 1838.
Sardinia
Commerce and Navigation
November 26, 1838
March 18, 1839.
Netherlands ....
January 19, 1839. .
May 24, 1839.
Mexico
Claims
April 11, 1839
April 8, 1840.
Ecuador
Peace, Friendship, Navigation,
and Commerce
June 13, 1839. .
September 23, 1842
Hanover
Commerce and Navigation
May 20, 1840
January 2, 1841.
Portugal
Commerce and Navigation
August 26, 1840. .
April 24, 1841.
Peru
Claims
March 17, 1841 . . .
January 8, 1847.
Great Britain . . .
Boundaries, Suppression of
Slave Trade, and Extradi-
August 9, 1842 . . .
November 10, 1842.
Mexico
France
Claims
Extradition
January 30, 1843 . .
November 9, 1843.
March 30, 1843.
April 14, 1844.
Hesse
Abolishing Droit d'Aubaine and
Taxes on Emigration
March 26, 1844. . .
May 8. 1845.
APPENDIX IV.
793
Country.
Wiirttemberg .
China .
Bavaria
France
Belgiuix
Saxony
Nassau
Hanover
Great Britain. . .
Two Sicilies . . .
Colombia (New
Granada) ....
Switzerland ....
[ecklenburg-
Schwerin
Mexico
Austria-Hungary .
Jrazil
Guatemala
Hawaiian Islands.
alvador
Sreat Britain . . .
Colombia (New
Granada) ....
torneo
Switzerland ....
Great Britain...
'ortugal
V>sta Rica
Peru
Banseatic Repub-
lics
'russia
Netherlands ....
reat Britain . . .
Trance
Argentine Repub-
lic
Argentine Repub-
avaria
Mexico
apan
jrreat Britain. . .
Chew
Jreat Britain. . .
,ussia
;runswick and
Liineburg
Two Sicilies
3anover
Netherlands ....
Two Sicilies. . . .
3iam
Subject.
Abolishing Droit d'Aubaine and
Taxes on Emigration
Peace, Amity, and Commerce. .
Abolishing Droit d'Aubaine and
Taxes on Emigration
Extradition, additional article.
Commerce and Navigation
Abolishing Droit d'Aubaine and
Emigration Taxes
Abolishing Droit d'Aubaine and
Emigration Taxes
Commerce and Navigation
Establishing Boundary West of
the Rocky Mountains
Commerce and Navigation
Peace, Amity, Navigation, and
Commerce
Property Rights
Commerce and Navigation
Peace, Friendship, Limits, and
Settlement
Relative to the Disposal of
Property and Consular Juris-
diction
Satisfaction of Claims of Citi-
zens of the United States on
Brazil
Peace, Friendship, Commerce,
and Navigation
Friendship, Commerce and
Navigation, and Extradition.
Amity, Navigation and Com-
merce
Ship-canal Connecting Atlantic
and Pacific Oceans
Consular
Amity, Commerce and Naviga-
tion
Friendship, Commerce, and
Navigation
Protocol, Horseshoe Reef
Claims
Friendship, Commerce, and
Navigation
Friendship, Commerce, and
Navigation
Consular
Extradition
Commerce and Navigation
Claims
Consular
Free Navigation of the Rivers
Parana and Uruguay
Friendship, Commerce, and
Navigation
Extradition
Boundary, Cession of Territory,
Transit of Isthmus of Te-
huantepec, etc
Peace, Amity, and Commerce. .
Reciprocity as to Fisheries, Du-
ties, and Navigation, British
North American Colonies . . .
Friendship and Commerce
Claims
Rights of Neutrals at Sea
Respecting the Disposition of
Property
Rights of Neutrals at Sea ....
Extradition
Consular
Amity, Commerce and Naviga-
tion, and Extradition
Amity and Commerce
Signed.
April 10, 1844
July 3, 1844
January 21. 1845.
February 24, 1845.
November 10, 1845
Proclaimed.
December 16, 1844.
April 18, 1846.
August 15, 1846.
July 24, 1845.
March 31, 1846.
May 14, 1845 September 9. 1846.
May 27, 1845.
June 10, 1846
June 15, 1846. .
December 1, 1845.
December 12, 1846
May 18, 1847
December 9, 1847.
February 2, 1848..
January 26, 1847.
April 24, 1847.
August 5, 1846.
July 24, 1846.
June 12, 1848.
May 4. 1848:
August 2, 1848.
July 4. 1848.
May 8, 1848 February 25, 1850.
January 27, 1849. .
January 19, 1850.
March 3, 1849
July 28, 1852.
December 20, 1849
November 9, 1850.
January 2. 1850. .
April 18, 1853.
April 19, 1850
July 5, 1850.
May 4, 1850
December 5, 1851.
June 23, 1850
July 12, 1854.
November 25, 1850
December 9, 1850.
February 26, 1851
November 9, 1855.
September 1, 1851.
Tune 10, 1851
May 26, 1852.
July 26, 1851
July 19, 1852.
ipril 30, 1852
June 16, 1852
August 26, 1852 . .
February 8, 1853.
February 23, 1853
June 6, 1853.
June 1, 1853.
February 26, 1853.
August 20, 1853.
August 12, 1853.
July 10, 1853 April 9, 1855.
July 27, 1853
September 12, 1853
December 30, 1853
March 31, 1854. ..
June 5, 1854
July 11, 1854
July 17, 1854
July 22, 1854
August 21, 1854.
January 13, 1855
January 18, 1855
January 22, 1855
October 1, 1855. .
May 29, 1856
April 9, 1855.
November 18. 1854.
June 30, 1854.
June 22, 1855.
September 11. 1854.
March 9, 1855.
September 11. 1854.
November 1. 1854.
July 30, 1855.
July 16, 1855.
May 5, 1855.
May 26, 1855.
December 10, 1858.
August 16, 1858.
794
APPENDIX IV.
Country.
Subject.
Signed.
Proclaimed.
Rights of Neutrals at Sea
July 22, 1856
November 2. 1857.
Persia
Friendship and Commerce
December 13, 1856
August 18, 1857.
Austria-Hungary .
Extradition
July 3, 1856
December 15. 1856.
Extradition
January 30. 1857. .
May 19, 1857.
Denmark
Japan
Discontinuing the Sound Dues.
Commercial and Consular
April 11, 1857. . . .
June 17, 1857. . . .
January 13, 1858.
June 30, 1858.
Peru
Interpreting Article XII, Treaty
of 1851
July 4, 1857
October 14, 1858.
Colombia (New
Granada) ....
Claims
September 10, 1857
November 8, 1860.
Peace, Friendship, Commerce
and Navigation
May 13, 18*58
January 8, 1863.
China
Peace, Amity, and Commerce . .
June 18, 1858. . . .
January 26. 1860.
Belgium
Commerce and Navigation ....
Commerce and Navigation ....
July 17, 1858
July 29, 1858
April 19, 1859.
May 23, 1860.
China
Establishing Trade Regulations
and Tariff
November 8. 1858.
China
Claims
November y 1858.
Chile
Arbitration of Macedonian
Claims
November 10, 1858
December 22, 1859.
France
Extradition, additional article.
February 10, 1858.
February 14. 1859.
Venezuela
Claims
January 14, 1859.
February 26. 1861. a
Paraguay
Claims
February 4, 1859. .
March 12, 1860.
Paraguay
Friendship, Commerce, and Nav-
igation
February 4, 1859. .
March 12, 1860.
Sweden and Nor-
way
Extradition
March 21, 1860. .
December 21, 1860.
Costa Rica
Claims
July 2, 1860
November 11, 1861.
Venezuela
Amity, Commerce and Naviga-
tion, and Extradition
August 27, 1860. .
September 25, 1861.
Denmark
Consular
July 11, 1861. . . .
September 20, 1861.
Abolishing Stade or Bruns-
hausen Dues
November 6, 1861.
June 17, 1862.
Extradition
December 11, 1861
June 20, 1862.
Great Britain . . .
Suppression of African Slave
Trade
April 7, 1862
June 7, 1862.
Ottoman Empire.
Liberia
Commerce and Navigation ....
Commerce and Navigation ....
February 25, 1862.
October 21, 1862.
July 2, 1862.
March 18, 1863.
Ecuador
Claims
November 25, 1862
September 8, 1864.
Peru
Claims
December 20, 1862
May 19, 1863.
Peru
Claims
January 12, 1863.
May 19, 1863.
Great Britain . . .
Additional Article Suppression
of Slave Trade, 1862
February 17, 1863.
April 22, 1863.
Belgium
Relative to Import Duties and
Capitalization of Scheldt
Dues
May 20, 1863
November 18, 1864.
Great Britain . . .
Claims
July 1, 1863
March 5, 1864.
Belgium
Extinguishment of the Scheldt
Dues
July 20, 1863
November 18, 1864.
Japan
Reduction of Import Duties . . .
January 28. 1864.
April 9, 1866.
Colombia
Claims
February 10, 1864.
August 19, 1865.
Honduras
Friendship, Commerce, and Nav-
igation
July 4, 1864
May 30, 1865.
Japan
Payment of the Simonoseki In-
demnities
October 22, 1864. .
April 9, 1866.
Hayti
Amity, Commerce and Naviga-
tion, and Extradition
November 3, 1864.
July 6, 1865.
Morocco
Cape Spartel Lighthouse
May 31, 1865
March 12, 1867.
Venezuela
Claims
April 25, 1866
May 29, 1867.
Japan
Establishing Tariff Duties
June 25, 1866. . . .
Dominican Repub-
Amity, Commerce and Naviga-
lic
tion, and Extradition
February 8, 1867. .
October 24, 1867.
Madagascar ....
Commerce and Navigation
February 14, 1867.
October 1, 1868.
Russia
Ceding Alaska
March 30, 1867. . .
June 20, 1867.
Nicaragua
Friendship, Commerce, and
Navigation, and as to Isth-
mian Transit
June 21, 1867. . . .
August 13, 1868.
Siam
Modification to Treatv of May
29, 1856
December 17-31,
1867
August 11, 1868. a
Russia
Additional Article to Treaty of
Commerce, 1832. Trade-
marks
Januarv 27, 1868.
October 15, 1868.
Italy
Consular
February 8, 1868. .
February 23, 1869.
North German
Union
Naturalization
February 22. 1868.
May 27, 1868.
Italy
Extradition
March 23, 1868. . .
September 30, 1868.
Bavaria
Naturalization
May 26, 1868
October 8, 1868.
a Ratified by the President.
APPENDIX IV.
795
Country.
Subject.
Signed.
Proclaimed.
Mexico
China
Claims
Trade, Consuls, and Emigra-
July 4, 1868
February 1, 1869.
tion
July 28, 1868
February 5 1870
Mexico
Naturalization
July 10, 1868
February 1, 1869
Jaden
Wiirttemberg. . . .
Naturalization
Naturalization and Extradition.
July 19, 1868
July 27, 1868
January 10, 1870
March 7, 1870
lesse
Naturalization
August 1, 1868. . .
August 31, 1869
ielgium
Naturalization
November 16, 1868
July 30, 1869
'eru
Claims
December 4 1868.
July 6, 1869
Belgium
Consular
December 5. 1868.
March 7, 1870
Jelgium
Trademarks
December 20, ISO,-*
July 30, 1869
taly
Italy
Consular
Additional to Extradition Con-
January 21, 1869..
May 11, 1869!
vention, 1868
January 21, 1869.
May 11, 1869
France
Trademarks
April 16, 1869
July 6, 1869.
Sweden and Nor-
way
Naturalization
May 26, 1869
January 12, 1872
Jreat Britain . . .
Naturalization
May 13, 1870
September 16 1870
Salvador
Extradition
May 23, 1870
March 4, 1874
Jreat Britain . . .
Nicaragua
Suppression of Slave Trade . . .
Extradition
June 3, 1870
June 25, 1870. . . .
September 16, 1870.
September 19, 1871
Austria-Hungary .
Consular
July 11, 1870
June 29, 1871
Peru
Friendship, Commerce, and Nav-
igation
September 6, 1870.
July 27, 1874.
'eru
Extradition
September 12, 1870
July 27, 1874.
Austria-Hungary
Naturalization
September 20, 1870
August 21, 1871
Italy
February 26, 1871.
November 23, 1871
VIexico
Great Britain . . .
Claims
Settlement of all Causes of Dif-
April 19, 1871
1
February 8, 1872.
May 8, 1871
July 4, 1871.
German Empire. .
Consular
December 11, 1871
June 1, 1872.
Orange Free
Friendship, Commerce, and Nav-
State
igation
December 22. 1871
August 23, 1873
Ecuador
Naturalization
May 6, 1872
November 24, 1873
Ecuador
Extradition
June 28, 1872
December 24, 1873
Denmark
Naturalization
July 20, 1872. . . .
April 15, 1873.
Mexico
Claims
November 27, 1872
July 24, 1873.
Great Britain. . .
Additional Article to Treaty of
May 8, 1871, Respecting
Meeting Places for the Com-
mission Under Article XII. .
January 18, 1873.
April 15, 1873.
Belgium
Extradition
March 19, 1874. .
May 1. 1874.
Russia
Trademark Declaration
March 28, 1874. . .
November 24, 1874
Ottoman Empire .
Extradition
August 11, 1874. .
May 26, 1875.
Mexico
Claims
November 20, 1874
January 28, 1875
Hawaiian Islands.
Reciprocity
January 30, 1875.
June 3", 1875
Belgium
Commerce and Navigation
March 8, 1875. ..
June 29, 1875.
Claims
April 29, 1876
June 29, 1876.
Spain
Extradition
January 5, 1877. .
February 21. 1877.
Great Britain . . .
Declaration Affording Recipro-
cal Protection to Trade-
marks
October 24, 1877.
July 17, 1878
Samoan Islands. .
Friendship and Commerce. . . .
January 17, 1878.
February 13, 1878.
[talv
Consular
May 8, 1878
September 27. 1878
Netherlands ....
Consular
May 23, 1878
August 1, 1879.
Commercial
July 25, 1878
April 8, 1879.
Brazil
Trademarks Agreement
September 24, 1878
June 17, l?~\)
France
Claims
January 15. 1880.
June 25. 1880
Belgium
Consular
March 9, 1880
March 1, 1881.
Japan
Reimbursing Shipwreck Ex-
penses
May 17, 1880
October 3, 1881.
Netherlands ....
Extradition
May 22, 1880. . . .
July 30, 1880.
Morocco
Protection
July 3, 1880
December 21, 1881
China
Immigration
November 17, 1880
October 5, 1881.
China
Commercial Intercourse and
,
Judicial Procedure
November 17, 1880
October 5, 1881.
Italy
Supplemental to Consular Con-
vention, 1878
February 24., 1881.
June 29, 1881.
Madagascar ....
Friendship and Commerce. . . .
May 13. 1881
March 13, 1883.
Roumania
Consular
Commerce and Navigation
June 17, 1881
October 14 1881 .
July 9, 1883.
December 27, 1882.
Consular
October 14, 1881.
December 27, 1882.
Korea
Peace, Amity, Commerce, and
Navigation
May 22, 1882. . . .
June 4, 1883.
Italy
Trademark Declaration
June 1. 1882
March 19, 1884.
Belgium
Extradition
June 13, 1882. . . .
November 20, 1882.
796
APPENDIX IV.
Country.
Spain
France-
Mexico
Spain
Mexico
France
Netherlands ....
Switzerland ....
Luxemburg ....
Belgium
International As-
sociation of
Kongo
Siam
Russia
Italy
Mexico
Hawaiian Islands.
Mexico
Venezuela
Mexico
Denmark
Japan
Mexico
Zanzibar
Tonga
Russia
Netherlands
Peru ,
Venezuela
Colombia
Denmark
Venezuela
Mexico
Mexico
Great Britain and
Germany ....
Great Britain. . .
Kongo
Venezuela
Great Britain . . .
Great Britain . . .
Great Britain...
Denmark
Great Britain . . .
Chile . . .
Sweden
Ecuador
Norway
Great Britain . . .
China .
Subject.
Trademark
Claims
Boundary
Supplementary Extradition . . .
Commercial Reciprocity
Claims
Agreement, Registration of
Trademarks
Agreement, Trademarks
Extradition
Trademark
Recognition of Flag
Regulating Liquor Traffic in
Siam
Declaration, Admeasurement of
Vessels
Additional to Extradition Con-
vention, 1868
Boundary, Rio Grande and Rio
Colorado ,
Commercial Agreement
Reciprocity
Reciprocity
Claims
Boundary
Admeasurement of Vessels. . . .
Extradition
Reciprocity
Duty on Liquors, and Con-
sular Powers
Amity, Commerce, and Naviga-
tion
Extradition
Extradition
Friendship^ Commerce, and
Navigation
To Remove Doubts as to the
Meaning of the Convention
of 1885
Extradition
Submitting Claijm of Carlos
Butterfield & Co. to Arbitra-
tion
Extending the Time for Rati-
fication of the Convention of
1885
Boundary
Boundary
Neutrality and Autonomous
Government of the Samoan
Islands
Extradition
Amity, Commerce, and Naviga-
tion
Claims
Relating to Fur Seals in Bering
Sea
Renewal of the Existing Modus
Vivendi in Bering Sea
Recovery of Deserters from
Merchant Vessels
Trademark
Delimiting Boundaries not Per-
manently Marked
Claims
Extradition
For Arbitration of Claim of
Julio R. Santos
Extradition .
Extending the Terms of the
Alaskan Boundary Commis-
sions
Regulating Chinese Immigra-
tion .
Signed.
June 19, 1882
July 19, 1882
July 29, 1882
August 7, 1882 . . .
January 20, 1883.
February 8, 1883.
February 16, 1883
May 14, 1883
October 29, 1883.
April 7, 1884
Proclaimed.
April 19, 1883.
December 29, 1882.
March 5, 1883.
April 19, 1883.
June 2, 1884.
June 25, 1883.
August 12, 1884.
July 9, 1884.
April 22, 1884
May 14, 1884 July 5, 1884.
June 6, 1884
June 11, 1884 April 24, 1885.
November 12, 1884
November 16, 1884
December 6, 1884.
February 25, 1885.
December 5, 1885.
December 5, 1885.
February 26, 1886
April 29, 1886
May 14, 1886
September 14, 1886.
May 7, 1885.
November 9, 1887
May 4, 1886.
June 4, 1889.
June 28, 1887.
November 3, 1886.
February 1, 1887.
July 3, 1886 August 17, 1888.
October 2, 1886. .
March 28, 1887. . .
June 2, 1887
September 18, 1888.
June 5, 1893
June 21, 1889.
August 31, 1887.. November 7, 1888.
March 15, 1888. . .
May 7, 1888
June 4, 1889.
February 6, 1891.
December 6, 1888. May 24, 1889.
October 5, 1888. ,
February 18, 1889.
March 1, 1889
June 14, 1889
July 12, 1889
January 24, 1891,
January 19, 1892,
February 29, 1892,
April 18, 1892
June 3, 1892. ..
June 15, 1892. .
July 22, 1892. .
August 7, 1892 .
January 14, 1893
February 28, 1893.
June 7, 1893
February 3, 1894. ,
March 17, 1894. .
June 4, 1889.
October 14, 1889.
December 26, 1890.
May 21, 1890.
March 25, 1890.
April 2, 1892.
July 30, 1894.
May 9, 1892.
May 9, 1892.
August 1, 1892.
October 12, 1892.
August 26, 1892.
January 28, 1893.
March 18, 1893.
November 7, 1894.
November 9, 1893.
March 28, 1894.
December 8, 1894,
APPENDIX IV.
|
797
Country.
Subject.
Signed.
Proclaimed. *
Russia
Modus Vivendi in Relation to
the Fur-Seal Fisheries in
Bering Sea and the North
May 4, 1894
May 12, 1894.
Mexico
Japan
Boundary
Commerce and Navigation
August 24, 1894. .
November 22, 1894.
October 18, 1894.
March 21, 1895.
Mexico
Great Britain. . .
Argentine Repub-
Boundary
Claims
October 1, 1895...
"February 8, 1896. .
December 21, 1895.
June 11, 189.6.
lic
Orange Free
Extradition
September 26. 1896
June 5, 190Q.
State
Mexico
Chile
Mexico
Great Britain . . .
Extradition
Patents, Trademarks, etc
Claims
Protocol in re Joint Commis-
October 28. 1896. .
November 6, 1896..
January 13, 1897. .
May 24, 1897
October 29, 1897.".
April 21, 189£.
December 23, 1896.
March 9, 1897.
March 12, 1900.
December 21, 1897.
sion for Adjustment of Ques-
tions Relating to U. 8. and
Canada
May 25, 1898
May 30, 1898.
Brazil
Extradition
May 28, 1898
April 30, 1903.
Prance
Mexico
Boundary
May 28, 1898
December 2, 1898..
May 30, 1898.
February 3, 1899.
Spain
Peace
December 10, 1898.
April 11, 1899.
Mexico
Great Britain. . .
Great Britain . . .
Germany-G r e a t
Extradition
Property
Modus Vivendi— Alaska
February 22, 1899.
March 2, 1899...
October 20. 18997. .
April 24, 1899.
August 6, 1900.
Britain
Samoan Claims
November 7. 1899..
March 8, 1900.
Peru
Germany-G r e a t
Extradition
November 28. 1899.
January 29, 1901.
Britain
Great Britain . . .
Samoan Islands
Agree men t — Protection of
December 2. 1899,.
February 16. 1899.
Mexico .
Trademarks in Morocco ....
Boundary
December 6, 1899,.
December 22, 1899.
May 7, 1900.
Italy
Reciprocity Agreement
Protocol — Registration in Phil-
February 8. 1900..
July 18, 1900.
Chile . ,
ippines
Extradition
March 29, 1900 .
April 17, 1900 . .
April 28, 1900.
May 27, 1902.
Bolivia
Switzerland ....
Portugal
Spain
Extradition
Extradition
Reciprocity Agreement
Reciprocity Agreement
Cession of Outlying Islands of
Philippines
April 21, 1900 . .
May 14, 1900. . .
May 22, 1900. .'.
July 10, 1900. .".
November 7, 1900..
December 30, 1901.
February 28, 1901.
June 12, 1900.
July 13, 1900.
March 23, 1901.
Mexico . ,
Water Boundary
November 2i, 1900.
December 24. 1900.
Uosta Rica
Protocol for Construction of
Canal
December 1. 1900.
Nicaragua
Protocol for Construction of
Canal
November 21, 1900.
Great Britain . . .
Guatemala
Supplementary Extradition. .
Trademark
December 13, 191^0.
April 15, 1901
April 22, 1901.
April 11, 1902.
Spain
Guatemala
jermany
Agreement, Letters Rogatory. .
Property
Agreemen t — Protection of
August 7, 1901.". .
August 27, 1901". ..
September 18, 1903.
Trademarks in Morocco ....
October 8, 1901. . .
Servia
Extradition
October 25. 1901.
May 17, 1902.
Extradition
October 26. 1901.
June 14, 1902.
Great Britain . . .
Ship Canal
November 16, 1901.
February 22. 1902.
Denmark
Extradition
January 6. 1 902 . .
April 17, 1902.
Great Britain . . .
Supplementary Property
January 13, 1902. .
April 2, 1902.
Flayti
JJreat Britain . . .
Mexico
Spain
Naturalization
Zanzibar
Supplementary Extradition . . .
Friendship and General Rela-
March 22, 1902..
May 31, 1902
June 25. 1902
March 24, 1904.
October 7, 1902.
April 3, 1903.
tions
July 3, 1902
April 20, 1903.
France
Commercial Agreement
August 20, 1902...
August 22, 1902.
Greece
Consular
November 19, 1902.
July 11, 1903.
Spain
Agreement, Copyright
November 26, 1902.
Cuba
December 11. 1902
December 17, 1903.
Great Britain...
Cuba
Alaskan Boundary
Supplemental Reciprocity
January 24. 1903.
January 26, 1903.
March 3, 1903.
December 17, 1903.
Venezuela
Protocol, Claims
February 17, 19Q3.
Cuba . .."
Agreement for Lease
February 23. 1903.
October 6, 1903.a
Guatemala
Extradition
February 27 1903.
July 17, 1903.
Great Britain . . .
June 5, 1903
December 24, 1903.
luba
Lease of Coaling Stations
Julv 2. 1903
Hayti
Naturalization (extension) ....
July 28. 1903
March 24, 1904.
798
APPENDIX IV.
Country.
Subject.
China Commercial
Panama Ship Canal
Netherlands .... Extradition
France Relations in Tunis. . . .
Cuba Relations with Cuba. .
Cuba Supplementary
Ethiopia Commercial Relations.
Panama Extradition
Hayti
Norway
Great Britain
Extradition
Extradition
Relinquishing Extraterritorial
Rights in Zanzibar
Denmark Extradition
Japan Copyright
Roumania Trademarks
Great Britain . . Extradition
Great Britain . . . Boundary Alaska
Japan Extradition, Supplementary . . .
Mexico Rio Grande Waters .
Signed.
October 8. 1903 . .
November 18, 190,3.
January 18, 1904.
March 15, 1904. . .
May 22, 1903
January 20. 1904.
December 27, 1903.
May 25, 1904
August 9, 1904. . .
December 10, 1904
February 25, 1904
November 6, 1905.
November 10, 1905
March 18-31, 1906
April 12, 1905
April 21, 1906. . . .
May 17, 1906. . . .
May 21, 1906
Proclaimed.
January 13, 1904.
February 26, 1904.
May 31, 1904.
May 9, 1904.
July 2, 1904.
July 2, 1904.
September 30, 1904.
May 12, 1905.
June 28, 1905.
April 6, 1905.
Tune 12, 1905.
February 19, 1906.
May 17, 1906.
June 25, 1906.
February 12, 1907.
August 21, 1906.
September 26, 1906.
January 16, 1907.
INTEENATIONAL ACTS AND CONVENTIONS.
Subject. Proclaimed.
Establishing International Bureau of Weights and Measures September 27, 1878.
Amelioration of the Condition of the Wounded in Time of War. . . . July 26, 1882.
Protection of Submarine Cables May 22. 1885.
International Protection of Industrial Property .'.... June 11, 1887.
International Exchange of Official Documents, Scientific and Literary
Publications January 15, 1889.
Immediate Exchange of Official Journals, Parliamentary Annals, and
Documents January 15, 1
International Union for the Publication of Customs Tariffs December 17, 1890.
General Act for the Repression of African Slave Trade April 2, 1892.
Supplementary Convention as to Expenses of International Bureau
for Protection of Industrial Property June 22, 1
Adhesion of United States to Brussels Convention for Regulation
of Importation of Spirituous Liquors into Africa February 6. 1
Final Protocol Between China and Other Powers, Fixing Indemnity
to be Paid by China on Account of Uprising Against Foreigners
in 1900 September 7, 1901.3
Convention for Pacific Settlement of International Disputes, Signed
at The Hague July 29. 1899 '. November 1, 1901.
Convention for the Adaptation to Maritime Warfare of the Principles
of the Geneva Convention of August 22, 1864, Signed at The
Hague July 29. 1899 November 1, 1901.
Declaration as to Launching of Projectiles and Explosives, Signed
at The Hague July 29, 1899 November 1, 1901.
Convention with Respect to the Laws and Customs of War on Land,
Signed at The Hague July 29, 1899 April 11, 1902.
Additional Act Concluded at Brussels for the Protection of Indus-
trial Property August 25, 1902.
Arbitration of Pecuniary Claims March 24, 1905.
a Signed. Protocol not proclaimed.
INDEX.
[References are to Sections.]
Abandonment of possession by Indians, 382.
Abatement, alien, incapacity of, to be raised by, 228.
plea of when extradited on one charge and arrested on another, 337.
Abductions, Canadian authorities offering to restore prisoners, 313.
territorial waters of another state cannot be invaded, 313.
Abrogation. See Repeal; Acts of Congress; Construction of Treaties, etc.
of treaty by act of Congress must clearly appear, 182.
Accessories, fugitives extradited as, may be tried as principals, 336.
Acknowledgments by consuls, 458.
deputy consul-general can take, 448.
Acquisition of Territory. See Cession, Treaties of.
cession, by treaties of, 267.
incorporation of ceded territory prevented, 294.
inhabitants, relations of not changed, 268.
population, wishes of not consulted, 270.
war, power by, 268.
Acts of Congress, abrogation of treaty by, must clearly appear, 182.
admitting state revoking right of Indians to hunt, 170.
applicable to Indians, 385.
building bridge over Willamette River does not violate, 174.
Chinese exclusion cases, 185-193.
conflicting with treaty of cession, 289.
head money cases, 175.
immigration relating to, 175.
modified by treaties with Indians, 171.
reconciliation with treaty, 176.
rule as to repeal of statutes by implication, 184.
repeal of treaty by implication not favored, 178.
subsequent will repeal treaty, 167.
treaty equivalent to, 167.
Adams, Samuel, comments of, on treaty power, 17.
Administration of Estates, consuls entitled to by treaty, 202, 452.
right of, conferred by most favored nation clause, 131.
(799)
800 INDEX.
[References are to Sections.]
Admiralty, jurisdiction of not taken away by treaties as to seamen, 455.
Admission of State, collective naturalization by, 469.
Affidavits by consuls, 458.
false, used to obtain return of prisoner, 312.
African Slave Trade, amendment to treaty concerning, 64.
Alabama Claims, award under assignable, 571.
treaty of settlement of, Appendix, page 675.
Alaska, acquisition of under treaty power, 268.
attacks on Chinese in, 524.
convention ceding, Appendix, page 743.
inhabitants of before cession, becoming citizens, 295.
modus vivendi as to boundary, 70.
purchase of, 83.
Algiers, treaties in force, Appendix, page 610.
Aliens, abatement, to raise plea of incapacity, 228.
assignment of claim against government, 570.
attainder for treason, 262.
bound by same criminal procedure as citizen, 211.
California, provisions of constitution as to escheats, 228.
cannot enjoin attorney general of a state from enforcing payment of
taxes, 559.
children of, born in United States, American citizens, 471.
claim of against government for injuries by private parties, 575.
compulsory military service of, 462, 463.
conveyance made upon secret trust, 225.
covenant not to rent property to Chinaman, 217.
Declaration of Independence, immigration after, 256.
descent, acquiring title by, 226.
directors, in corporations may become, 229.
disability to inherit removed by treaty, 248.
employment of Chinese by corporation, 198.
employment of on public works, 201.
every nation may exclude or expel, 186.
excluded from suing under abandoned and captured property act, 558.
expatriation of, 459-471.
foreign corporations are not subjects, 296.
foreign corporation purchasing stock of local corporation, 224.
foreign corporation subjecting funds in state to payment by attach-
ment, 161.
fourteenth amendment applies to, 195.
" goods" not including "lands" in treaty, 249.
Illinois, inheritance in, 243.
inheritable blood, has none, 229.
Kentucky, do not take by descent in, 250.
Kentucky, laws of alienage in, overcome by treaty, 251.
labor of, on public works, 200, 201.
INDEX. , 801
[References are to Sections.]
Aliens, lapse of time precluding claim of heir, 252.
license for the privilege of mining, 239.
Maryland, laws of overcoming treaty, 253.
Massachusetts, laws of overcome by treaty, 254.
may maintain ejectment or partition, 228.
Mexico, inheriting under laws of, 226.
mortgagee, title of, protected by treaty, 236.
native-born citizen, taking from, 258.
naturalization of, 459-471.
New York, laws of superseded by treaty, 256.
no inheritable blood in, 228.
North Carolina, laws of overcoming treaty, 260.
Pennsylvania, laws of overcoming treaty, 261.
personal property, right to inherit, 229.
Porto Eico, inhabitants of, 295.
property includes right to labor, 200.
prosecution of claims in court of claim, 584.
protected by fifth and sixth amendments, 196.
rents, enjoying as heirs, 259.
resident heirs, having same rights as, 259.
right of consuls to administer in estates of, 202.
right of inheritance affected by treaty, 220-266.
right to hold land under Mexican law, 222.
right to sue for death of relative, 215.
Virginia, laws of subject to treaty, 266.
vested remainders included in lands, 254.
Virginia, statute of relating to escheats, 228.
sale of interest in estate, 232, 233.
Scotland, natives of prior to Eevolution prima facie not, 264.
South Carolina, laws of overcome by treaty, 263.
special rights given to American citizens, 214.
statutes removing disability of not retroactive, 227.
suing in courts, 218.
Tennessee, laws of subject to treaty, 264.
title once vested not devested, 234.
transitory actions in court by, 219.
treaty displacing power of court to appoint attorney for absent
heirs, 202.
Waldeck, citizens of, affected by treaty with Prussia, 250.
Wiirttemberg, treaty with, allowing time to sell, 257.
widow of, as citizen, may have protection of government in presenta-
tion of claim, 568.
Allegiance, American doctrine of, 461.
perpetual, 460.
Treaties — 51
802 INDEX.
[References are to Sections.]
Ambassadors. See, also, Consuls.
appointment of, 397.
courts bound by recognition of President, 395.
exempt from jurisdiction of the laws, 399.
mechanic's lien law not exempt from, 399.
parol evidence to prove appointment of, 396.
power to send, attribute of sovereignty, 165.
privileges of, 399.
servant of, exempt from laws, 399.
should not appeal to the press, 395.
should not interfere in legislation, 394.
witnesses, distinction between and consuls, 420.
Amendments, adding declaration, 65.
by Senate, 63, 64.
declaration for, interpretation of treaty, time of taking effect, 67-88.
Amendments to Constitution. See Fifth Amendment; Sixth Amendment;
Tenth Amendment; Fourteenth Amendment.
Anarchists, attempt on life of President, 334.
bound by same criminal procedure as citizens, 211.
not considered political offenders in extradition treaties, 335.
Appeal, court of claims, 590.
proper procedure to review ruling in habeas corpus, 354.
Appropriation, Congress under moral obligation to make, 82.
hanging of Mexican in California, 543.
killing of Italians in Colorado, 533.
lynching of Italians at Hahnville, 538.
pursuant to treaty, 81.
Appropriation of Money, treaty requiring, not perfect, 185.
See Claims.
wounding British subject at New Orleans, 542.
Archives of consuls privileged, 426.
Argentine Republic, amendment of treaty with as to extradition of citi-
zens, 323.
treaty allowing administration on estates, 202.
treaties in form, Appendix, page 611.
Arizona, private claim under Mexican grant, 282.
statutes of as to public lands in, 293.
Arrest, Alexander McLeod, 506.
extradited prisoner on prior judgment of conviction, 334.
extradition, offense committed during trial, 341.
of fugitive on British war vessel, 348.
of fugitives on telegraphic information, 348.
marshal, in extradition to take prisoner to nearest magistrate, 348.
provisional, in extradition proceedings, 349.
reparation for false or irregular, 582.
INDEX. 803
»
[References are to Sections.]
Arson, extradition for, variance in indictment, 338.
interpretation of according to law of both countries, 320.
Ashburton Treaty, construction of bridges not prevented by, 174.
Assassination, treaty with Salvador defining, 319.
Assault, malicious, by captain of vessel, federal courts have jurisdiction,
448.
Assignment, award against government constitutes property, 571.
claims against government, 570.
claim of bankrupt against foreign government, 572.
state suing another state as assignee of bonds, 573.
Asylum, treaties of extradition do not guarantee fugitives from justice an,
312.
Attachment, fund in state not subject to, to pay debt of former corporation,
161.
Attainder, confiscation of estate for, 262.
treaty paramount to state laws, 262.
Attorney, district, reimbursement for expenses in extradition proceedings,
365.
fees of in extradition, to be paid by demanding government, 364.
power of court to appoint for absent heirs displaced by treaty, 203.
President may authorize employment of in extradition, 357.
Austria-Hungary, forgery includes crime of uttering forged papers, in
treaty with, 319.
suspension of tariff act as to, 73, note.
treaty of naturalization with, 465.
treaties in force, Appendix, page 613.
Award, retrial of, 124.
right of property in, 124.
under claims commission, presenting federal question, 110.
under treaty, assignability of, 571.
Bacon, Senator, debate as to Japanese attending public schools, 149, note.
Baden, treaty of naturalization with, 464.
treaties in force, Appendix, page 615.
Bail, no provision for in extradition treaties, 344.
Bankruptcy, assignee takes claim of bankrupt against foreign government,
572.
outstanding title in assignee in, no federal question presented, 107.
sale of claim of bankrupt against foreign government, 572.
Bavaria, treaty effected with, effect on alienage, 248.
treaty of naturalization with, 464.
treaties in force, Appendix, page 615.
Belgium, attempt against head of government not a political offense, 334.
extradition for obtaining property by false pretenses, 368.
international copyright, benefit of extended to, 72.
treaties in force, Appendix, page 617.
804 INDEX.
[References are to Sections.]
Benson, John A., Denmark surrendering in absence of treaty, 304.
Bering Sea, convention relating to fur seals in, Appendix, page 677.
Beveridge, Senator, debate as to Japanese attending public schools, 149,
note.
Biens, word construed, 246.
Bill of Attainder, banishment or exile equivalent to, 187.
Bolivia, treaties in force, Appendix, page 623.
Bonds, forgeries, 315.
interest not payable on in North Carolina, 579.
suit by state as assignee, 573.
Borneo, treaties in force, Appendix, page 624.
Boundaries, Alaska, modus vivendi as to, 70.
between two states, 43.
controversies at time of adoption of Constitution, 44.
Canada and Alaska settled by protocol, 71.
. establishing between Virginia and Tennessee, 41.
grants made by states, 275.
South Dakota and Nebraska, 45.
Virginia and Tennessee, 127.
Bowman Act, appeal to supreme court not provided for, 586.
diplomatic claim presented by a foreign government, 586.
liberal construction of, 586.
letters and ex parte statements excluded, 586.
petition must state same cause of action as that transmitted to cour
586.
provisions of, 585.
strict rules of pleading not enforced, 586.
Boxer Troubles, protocol concerning, Appendix, page 784.
Boycott, responsibility of government for, 544.
Brazil, attempt against life of head of government not a public offens
334.
suspension of tariff act as to, 73, note.
treaties in force, Appendix, page 624.
Bremen, treaties in force, Appendix, page 626.
Bribery, contract to bribe foreign officer not enforceable, 445.
extraditable in treaties with Mexico and Netherlands, 368.
extradition of Charles Kratz for, 321.
need for more effective treaties covering, 321.
supplemental convention with Mexico relating to, 321.
Bridges, Ashburton treaty does not prevent construction of, 174.
building over Willamette River does not validate act of Congress, 17
over navigable stream when not a nuisance, 174.
Brunswick, treaties in force, Appendix, page 626.
Burden of Proof on Chinese under exclusion acts, 191.
Butte, claims of Japan for boycott of subjects at, 544.
INDEX. , 805
[References are to Sections.]
Calhoun, John C., views on difference between delegation of treaty power
and legislative power, 138.
California, acquisition of under treaty power and war power, 268.
admitted on equal terms with other states, 172.
attacks on Chinese in, 524.
constitution and statutes of, as to public schools, 147.
constitutional provision as to employment of Chinese by corporation,
198.
constitutional provisions as to escheat, 227.
hanging of Mexican in, 543.
inhabitants of, before cession becoming citizens, 295
lands occupied by Indian tribes part of public domain, 383.
license of Mongolians mining, 240.
Mexican grants in, 171.
Mexican law allowing aliens to inherit, 226.
Mexican titles in, after treaty, 290-292.
perfected claims, under Mexican grant, necessity of presenting, 286.
private property not impaired by cession of, 278.
treaty of Guadalupe Hidalgo protecting rights, 274.
treaty superseding laws in, 239-241.
Canada, boundary line between and Alaska settled, 71.
disavowing action of officers abducting prisoners, 313.
judgments rendered in, effect of in United States, 443.
request of, for permission to bring extradited person through United
States, 362.
Captain, maliciously assaulting seaman, 448.
Capture, consul cannot exempt vessel from, 449.
Carmack, Senator, debate as to Japanese attending public schools, 149,
note.
"Caroline," Steamer, destruction of, responsibility of government for, 505.
Cattle, taxation of in Oklahoma, 171.
Central America, treaties in force, Appendix, page 626.
Certiorari, resignation of political agent of government as bar to, 400.
Cession, acquisition of territory, 268.
Arizona, statutes of as to public lands, 293.
California, Mexican titles in, after treaty, 290.
California, private property in, not impaired by cession, 278.
ceded territory, inhabitants of, as citizens, 295.
ceded territory, prevention of incorporation into United States, 294.
Chile, contention of government of, 271.
Congress, act of in conflict with treaty, 289.
Congress, acts of as to titles, 291, 293.
806 INDEX.
[References are to Sections.]
Cession, Congress, subsequent acts of, 277.
copyrights, 279.
decree has effect of judgment, 292.
delegation to judicial department, 282.
executory rights included in term ' ' property, ' ' 278.
foreign corporations not citizens, 296.
Gilbert Islands, 272.
grant, as affected by homestead entries, 276.
grant, collateral attack, 285.
grant, deemed abandoned, 284.
grant, made by states in case of disputed boundaries, 275.
grant, perfected under Spanish authority in Louisiana, 277.
Hawaiian Islands, population not consulted, 270.
international laws, rules of, 271.
Japan, objecting to acquisition of Hawaiian Islands, 270.
land commission, perfected claims before, 286.
laws, ceded territory retains, until contrary provision made, 277.
Louisiana, acquisition of did not make incomplete titles complete, 283.
measuring land, 287.
Mexican grant unassailable until survey made, 282.
Mexican grant, collateral attack on not permitted, 285.
Mexican titles in California after treaty, 290.
New Mexico, statutes of, as to public lands, 293.
Paris, treaty of as to citizens of Porto Bico, 295.
patents, 279.
political department to provide mode, 281.
population, wishes of not to be consulted, 270.
Porto Eico, status of inhabitants of left to Congress, 294.
' ' property, ' ' definition of, 276.
property includes every species of title, 278.
property rights, what are, 276.
Pueblo Indians, title of not defeated by change of sovereignty, 277.
rights of claimant secured by political department, 281.
Rio Grande, effect of treaty on dam in, 297.
riparian rights of lot owners, 277.
Samoan Islands, 272.
sovereignty passes and not property, 260.
tide lands previously granted, 274.
titles complete at time of cession, 288.
titles incomplete not made complete, 283.
titles not devested, 273.
trademarks, 279.
trademarks, loss of by laches, 280.
treaty ceding Louisiana, Appendix, page 652.
Utah, statutes of, as to public lands in, 293.
Wyoming, statutes of, as to public lands, 293.
INDEX. , 807
[References are to Sections.]
Cession, Treaties of. See Cession.
Cherokees, reservations to head of Indian family, 264.
Chicago Anarchists' Case, treaty rights claimed in, 211.
Chile, extradition from, not requested in absence of treaty, 303.
international copyright, benefit of extended to, 72.
international law, contention of, 271.
irregular prosecution of American citizen in, 489.
service of foreign residents in temporary civic guard, 462.
treaties in force, Appendix, page 627.
China, allowances for injuries to Chinese residents, 524. See Chinese;
Chinese Exclusion.
American demands on, 516.
claims of, for boycott, 544.
closed to residence, 519.
fourteenth amendment applies to subjects of, 195.
indemnity for certain attacks on Chinese, 524.
indemnity made by, for injuries, 516.
no reciprocity intended in treatment of citizens, 520.
protocol with, 71.
system of American government known to, 521.
views of Senator Edmunds on appropriation for attacks on Chinese, 523.
treaty with, invalidates covenant not to rent land to Chinaman, 217.
treaties in force, Appendix, pages 629-635.
United States court for, 406.
United States court for, what law to prevail, 407.
United States court for, obtaining money by false pretenses, 410.
Chinese, attack on, at Kock Springs, 514-523.
attacks on, at Denver, 511.
covenant not to rent property to, 217.
employment of by corporation, state constitution invalid, 198.
Chinese Exclusion, abrogation of treaty must clearly appear, 181, 182.
aliens may be expelled, 186.
certificate of Chinese government as to mercantile character, 191.
children born in the United States, 187.
conclusiveness of decision of department, 192, 193.
construction of laws, 191.
hard labor law unconstitutional, 191.
hearing arbitrarily denied, 193.
loss of certificate by theft, 191.
neglect to apply for certificate, 189.
retrospective operation, 189.
right to return, 189.
shipping on American vessel for round voyage, 189.
summary information, instead of indictment, 191.
Chronological List, treaties, Appendix, page 791.
Circuit Courts, concurrent jurisdiction with court of claims, 588.
808 INDEX.
[References are to Sections.]
Citizens, alien has same power as, to hold personal property, 229.
appointment of, as consuls, 398.
Argentine Eepublic, amendment of treaty with, as to extradition of,
323.
cannot expatriate themselves during war, 471.
citizenship matter of defense, 323.
claim of Edward MacMurdo against Portugal, 567.
committing murder in Mexico, extradition refused, 308.
compulsory military service of foreign residents, 462.
conduct of, may forfeit claim to national protection, 565.
declaration of intention does not make, 323, 567.
discretion in delivering under extradition treaty, 326.
embraced by term ' ' persons, ' ' 324.
extradition of, 323.
German city cannot surrender to German state an American citizen, 329.
ceded territory, inhabitants of, 295.
foreigners debarred from suing under abandoned and captured prop-
erty act, 558.
government will interfere only on behalf of, 567.
government may refuse to subject to abhorrent form of trial, 323.
Indians becoming, 386.
in service of Khedive of Egypt, entitled to national protection, 565.
Italian Penal Code forbids extradition of, 324.
judgments conclusive between, 435.
Mexico, foreigner acquiring real estate in, becomes citizen of, 326.
Mexico willing to deliver, on promise of reciprocity, 326.
money received from foreign governments in trust for, 578.
must seek redress through their government for claims against another
government, 557.
naturalization of, has no retroactive effect, 569.
naturalized, entitled to same protection as native-born, 461.
not exempted from surrender by international law, 324.
order admitting an alien to citizenship, as order of court, 467.
political offenses, extradition for, denied, 328.
political offenses, instances of, 330.
Porto Rico, inhabitants of, 295.
setting aside certificate of citizenship, 468.
surrender of, in extradition, when of another country, 327.
Switzerland, delivering under extradition treaties, 325.
United States refusing to deliver to Mexico under extradition treaty,
325.
United States unwilling to make treaty to exclude from extradition, 325.
widow succeeding to her alien husband as heir, entitled to governmen-
tal action in prosecution of claim, 568.
yielding to mode of trial usual in foreign country, 323.
Civil Process, prisoner in jail on, released in extradition proceedings, 360.
INDEX. 809
[References are to Sections.]
Claims against Portugal for seizure of ra'ilroad, 567.
aliens cannot enjoin attorney general from collecting taxes, 559.
arising on contracts, generally no interference, 582.
arising from breach of neutrality laws, not presented, 568.
assignee in bankruptcy takes claim of bankrupt against foreign govern-
ment, 572.
assignment of, against government. 570.
assignability of award under treaty, 571.
based on acts against public policy, 566.
by United States for mob violence, 480-482.
Bowman Act, 585.
citizen, declaration of intention, does not make, 567.
citizens, government will interfere only in behalf of, 567.
citizen must seek redress through his government, 557.
courts of South American republics, 574.
conduct of citizen, may forfeit claim to national protection, 565.
court of claims, 583, 584.
damages, speculative or exorbitant, 563.
default not attributed to government, 580.
destruction of French privateers at Savannah, 497.
discretion of government in presenting, 563.
destruction of the steamer l ' Caroline, ' ' 505.
discrimination against American citizens, 577.
Edward MacMurdo against Portugal, 567.
fair examination demanded without discrimination as to nationality, 582.
foreigners excluded from suing under abandoned and captured property
act, 558.
fraud in, will justify government in refusing to present, 566.
government has control of, when once presented, 563.
government will not recognize a contract for services to set aside a
treaty, 566.
interest allowed to state for money borrowed from canal fund, 580.
interest on, not payable by government, 579.
interest not payable on internal revenue taxes paid without protest, 580.
jurisdiction of district and circuit courts, 588.
law of place governs contracts, 579.
moneys received from foreign governments in trust for American cit-
izens, 578.
Montijo controversy, 490.
New Orleans and Key West riots, 500.
naturalization has no retroactive effect, 569.
no remedy against state for breach of contract, 559.
one nation not bound to assume the collection of, against another na-
tion, 573.
one state suing another as assignee of bonds, 573.
pending in Congress, Department of State will not present, 568.
810 INDEX.
[References are to Sections.]
Claims, persons holding office under United States cannot act as agent foi
prosecution of, 456.
Pietro Ferrara, for injuries, 575.
policy of Great Britain, 564.
political department will not consider when in courts, 565.
presentation of, through Department of State, 560-563.
questions involving title to real estate, 581.
reparation for false or irregular arrests, 582.
resort to local remedies, 573.
rules of Department of State, as to mob violence, 482.
rules of Department of State for presentation of against other govern
ments, 562.
Shipley, Dr., for mob violence, 487.
Spanish war commission, 556.
suits by one state against another state, 559.
trespasses and evictions when subjects of diplomatic intervention, 580
treaty of arbitration of Alabama, Appendix, page 675.
treaty with Italy as basis of, 575.
treaty with Spain relinquishing, 555.
Tunstall, John H., claim of, against United States, 576.
Tucker Act, 587.
vessels, capture of, 562.
vessel in service of foreign power renounces claim to protection, 567.
Wheelock, John E., for mob violence, 483.
widow, as heir of alien husband, entitled to protection of government,
568.
Wilson, William, for mob violence, 485.
Zambrano, for mob violence, 488.
Clancy, American consul as witness, 429.
Clay, Henry, views of, on convention for suppression of slave trade, 64.
Cleveland, President, message of, on killing of Italians in Colorado, 531.
special message as to attacks on Chinese, 522.
Coast Vessels, pilotage laws as to not affected by most favored nation clause,
131.
Codification of rules of construction of treaties, 132.
Colombia, responsibility of, in Montijo controversy, 491.
treaties in force, Appendix, page 635-637.
Colorado, act admitting repealed treaty with Utes, 171.
construction of statute of, for damages for death, 215.
killing of Italian subjects in, by mob violence, 531.
statutes as to public lands in, 293.
Colored Children may be placed in separate schools, 160.
Comity. See Claims; Mob Violence.
delivery of fugitives to United States, 300.
INDEX. 811
[References are to Sections.]
Comity, extradition not asked as an act of, 301.
fund within state, not subject to payment of indebtedness due foreign
corporation, 161.
Jommissioner, Federal circuit court may act as magistrate in extradition
proceedings, 344.
fees of, in extradition proceedings, 366.
may grant continuance in extradition proceedings, 344.
Common Law, municipal corporations not liable for injuries by mobs at, 545.
Compacts Between States, boundaries between two states, 43.
boundary between South Dakota and Nebraska, 45.
clause of Constitution as to compacts with other states, 39.
Constitution, to what compacts applies, 42.
Constitution, controversies at time of adoption of, 44.
construction of compacts between two states, 46.
disputed boundary between United States and state, 47.
extent and meaning of clause, 41.
mutual estoppel, creation of, 50.
nature of, that may be made, 40.
property, compacts relating to, 53.
subsequent legislation, approval of Congress implied from, 49.
suits by state to recover penalties, 48.
taxations, contract of state to exempt property from, 51.
Complaints in extradition proceedings, based on information and belief, 345.
in extradition proceedings, precision of indictment not required, 346.
in extradition proceedings, German imperial code superseding laws of
Prussia, 345.
in extradition proceedings, request of government when to appear, 345.
in extradition proceedings, sufficiency of, 345.
in extradition proceedings, sufficient if equal to preliminary complaint,
340.
in extradition proceedings, sufficient if it appears complainant is acting
for foreign government, 345.
in extradition proceedings verified by consul of foreign government, 345.
Conditions as to treaty taking effect on, 65.
Condonation, surrender in extradition not refused on account of, 359.
Confederate States, Confederate bonds, investment of guardian in, 27.
Confederate bonds, discharge of executor investing in, 28.
contracts to aid the confederacy void, 30.
had no legal existence, 24.
judgments of courts, when void, 34.
laws in aid of insurrection, void, 33.
loyal owners, sale of property of, 32.
ordinance of secession of, a nullity, 31.
Confederation, weakness of, 7.
Confirmation, titles in ceded territory, 288.
Confiscation, consul cannot exempt vessel from, 449.
812 INDEX.
[References are to Sections.]
Confiscation Acts, attainder for treason, 262.
bond, balance due on recoverable, 261.
confiscation perfected by lapse of time, 261, 266.
treaty annulling, 261.
Virginia, 266.
Congo, surrender of fugitive in absence of treaty, 304.
treaties in force, Appendix, page 702.
Congress. See Acts of Congress.
Constable, liable for false imprisonment for arrests, if consul has exclusive
jurisdiction, 448.
Constitution. See Acts of Congress; Compacts Between States, etc.;
Statutes.
address to Congress, 20.
adoption of, enabled treaties to be enforced, 15.
constructions to be made in light of common law, 188.
escheat, law passed while proceedings pending, constitutional, 225.
formation of federal, 18.
guaranties of, do not apply to foreign crimes, 307.
John Jay, comments of, 21.
law imposing hard labor in Chinese exclusion, 191.
legislation to enforce escheats, 225.
license on foreign miners, 239.
license on Mongolians mining, 240.
making municipal corporations liable for mob violence, 552.
New York statute giving property to one heir, void, 258.
organization of federal constitutional convention, 19.
provision as to employment of Chinese by corporation void, 198.
separate schools for colored children not in conflict with, 162.
special laws changing descent, 245.
state statutes of confiscation, 108.
supreme law of land, history of, 163.
treaties in existence before, 164-166.
treaty cannot alter, 167.
"under authority of the United States," 163-166.
Construction of Treaties, abrogation by act of Congress must clearly appear,
182.
absurd conclusion to be avoided, 177.
acts of Congress and treaty both to be made effective, 168.
act of Congress and treaty to be reconciled, 176.
alienage, removing disability of, not retroactive, 227.
as a law, 127.
award, right of property in, 124.
by executive department, 115.
California, constitution and statutes of, 147.
Congress may pass laws to effectuate treaty, 115.
INDEX. 813
[References are to Sections.]
Construction of Treaties, courts cannot question rights recognized by nation,
128.
crime on foreign ship, jurisdiction of, 129, 130.
declaration of interpretation, 67.
delegation of legislative power and treaty-making power, 138.
" effects," meaning of, 260.
"embezzlement of public moneys/' 317.
extension by doubtful construction, 181.
extent of treaty-making power, 133-152.
extinguishment of treaties by tacit consent, 96.
extradition, enumeration of certain offenses excludes others, 301, 305.
extradition for violation of laws of foreign territory, 307.
extradition, right to, measured by treaty, 308.
extradition treaty using general terms, as ' ' murder " or ' * arson, ' ' 320.
extradition, validity of treaty cannot be questioned, 96.
i ' falsification ' ' in Mexican treaty not including l ' forgery in third de-
gree," 320.
favorable to execution of treaty, 121.
favorable to rights preferred, 126.
forgery in English law does not include false entries in books of ac-
count, 318.
forgery in the third degree, 320.
forgery under treaty with Austria-Hungary includes uttering forged
papers, 319.
general term used in Constitution, 134.
Indians, recognition of rights in, 255.
Indian treaties liberally construed, 390.
insolvent laws, case not arising under, 108.
instructions to diplomatic officers, 119.
interpretation in spirit of good faith, 116.
intention to be carried out, 117.
in two languages, 118.
in two languages, both originals, 120.
judicial question, 115.
laws of state, treaty in conflict with, will control, 250.
liberal construction, 125.
most favored nation clause, 131.
omission of words "or be punished," in extradition treaty, 178.
Panama canal zone, 144.
presumption that surrender was an act of comity, where treaty silent,
305.
protocol as to submarine cables, 68.
provision as to enjoyment of equal rights does not require subjection of
fund to payment of debt to foreign corporation, 161.
province of courts, 94.
public schools, right to attend, 145-159.
814 INDEX.
[References are to Sections.]
Construction of Treaties, question depending on, to be stated, 114.
repeal by implication, 178, 184.
repugnant clauses, 126.
"residing in state," 243.
retrospective operation, 177.
retroactive effect of extradition treaties, 321.
rules of, codified, 132.
Senate, resolution of, controlling meaning, 69.
statutes imposing liability on municipal corporations for mob violence,
liberally construed, 553.
supreme court of United States has jurisdiction in extradition, if treaty
involved, 354.
tariff laws and treaties, 169.
technical meaning of Indian not to be considered, 392.
title may be determined when case arises under treaty, 100.
treaties do not prevent special concessions to other countries, 169.
two constructions, which preferred, 231.
two constructions, treaty admitting of, 121.
vague and indefinite terms, 122.
whole treaty to be taken together, 123.
Consuls, acknowledgments by, 458.
acting as judges over captains and crews, 212.
action in discharging seaman not conclusive, 454.
administration of estates, entitled to, 202, 452.
affidavits by, 458.
American as witnesses, 427-429.
appeal in extradition proceedings, 355.
appointment of, 397.
archives of privileged, 426.
authority of, in enemy's country, 449.
barbarous and malicious assault on seamen, federal courts have juris-
diction, 448.
cannot assume position antagonistic to government, 446.
cannot exempt vessel from confiscation, 449.
citizens appointed as, 398.
Congress may permit suits against in state courts, 411.
commercial agents merely, 401.
concurrent jurisdiction in suits against, 414.
consular regulations of the United States, 403.
contract made in official capacity, 402.
contract to influence corruptly officer of foreign government, 445.
criminal laws, violation of, by, 404.
decision in cases of exclusive jurisdiction not reviewable, 448.
default against, waives exemption, 415.
deputy consul general can take acknowledgments, 458.
deserting seamen, delivery to, under Kevised Statutes, 367.
INDEX. 815
[References are to Sections.]
Consuls, distinction between rights of, and resident foreigners in case of mob
violence, 501.
exemption from jury and militia service, 404.
failure to plead exemption, 412.
false imprisonment, constable liable for, if consul has exclusive juris-
diction, 448.
fees for prosecution of claim, 456.
include "consul-general," "vice consul-general," or "vice-consul," 458.
in eastern countries, 405.
instructions of Mr. Hay to, 430.
intervention of, in behalf of fellow-citizens, 451.
judicial notice of signature and seal, 457.
jurisdiction of, by treaties, 447.
not judicial officers, 401.
passport of, as evidence that person has been in foreign country, 401.
petition to pay into treasury proceeds of property libeled, 451.
possess no authority to require masters to carry persons accused of
crime, 357.
power of, to commence suit in rem, 450.
property of, injured through negligence of foreign government, 473.
reclamation assessment, suits against, for, 413.
resignation of, as bar to certiorari, 400.
rights and privileges of, 401.
shipping and seamen, 453.
subpoena in behalf of prosecution, 422.
subject to local laws, 401.
suits against, 411.
suits by, in state court, 412.
suits against, concurrent jurisdiction of courts, 414.
trading liable to process, 402.
United States court for China, 406.
verifying complaint for extradition, 345.
vice-consuls, appointment of, 397.
witnesses before courts-martial, 432.
witnesses, compulsory attendance as, 416-425.
witness, facts within personal knowledge of, 431.
witness, distinction between and ambassadors, 420.
witness, information received in official capacity, 432.
witness, subpoena by a state court, 425.
mi-general, included by term « ' consul, ' ' 458.
Continental Congress, committee to prepare plan of treaties, 4.
meeting of, 23.
treaties under, 8.
treaty obligations, unable to guarantee observance of, 9.
want of judicial power to enforce treaties, 11.
Continuances in extradition proceedings, 344.
816 INDEX.
[References are to Sections.]
Contractor, crime to employ alien as laborer on public works, 201,
Contracts by consuls in their official capacity, 402.
See Claims.
corruptly influencing officer of foreign government, 445.
confederacy, in aid of, void, 30.
court of claims considers law of place where contract was made, 583.
government generally will not interfere in claims arising on, 582.
fair and impartial examination demanded without discrimination as to
nationality, 582.
law of place governs, 579.
treaties as, 115, 168.
Convicts, power of state to exclude, 190.
Copyright, international, reciprocal rights extended, 72.
protected under treaties of cession, 279.
Corea, treaties in force, Appendix, page 703.
Corporations, directors, aliens may become, 229.
employing Chinese, state constitution invalid, 198.
foreign courts may refuse to subject fund to payment by attachment,
161.
foreign, purchasing stock of local corporation, 224.
foreign, not subjects, 296.
funds of private do not constitute public moneys, 317.
nonresident stockholders can hold shares, 229.
Costa Rica, international copyright, benefit of, extended to, 72.
protocol as to interoceanic canal, 71.
surrendering fugitive in absence of treaty, 304.
treaties in force, Appendix, page 638.
Counsel, Department of State will not hear in opposition on demand for
requisition, 342.
fees of, in extradition to be paid by demanding government, 364.
President may authorize employment of in extradition proceedings, 357.
County, payment of expenses by extradition proceedings, 366.
Coupons, false certificate to invoices inclosing, 317.
when forgeries, 315.
Court of Claims, aliens may prosecute, where reciprocity granted, 584.
cannot establish jurisdictional requirements, 584.
claims barred within six years, 584.
implied contract to pay for land appropriated to public use, 584.
jurisdiction of, 583.
law of place where claim accrued considered, 583.
lessee dispossessed before expiration of term, 583.
may refuse to subject fund to payment of debt to foreign corporation,
161.
no jurisdiction of a claim against District of Columbia, 583.
receiver appointed by court of chancery claiming fund, 584.
suit to recover judgment rendered by court of commissioners of Alabama
claims, 583.
INDEX. 817
[References are to Sections.]
Courts, administration in estates given to consuls by treaty, 202.
admiralty, jurisdiction of, not taken away as to American seamen by
treaties, 455.
attorney for absent heirs, right to appoint by courts displaced, 203.
bribery of foreign officer, contracts for, not enforceable by courts, 445.
cannot decide matters settled by treaty, 106.
cannot enforce treaty disregarded by government, 94.
cannot inquire whether person ratifying had authority, 128.
China, United States court for, 406.
China, United States court for, what law to prevail, 407.
concurrent jurisdiction in suits against consuls, 414.
consul as witness before state, 423.
construction of treaties by executive department, 115.
deprived of jurisdiction over captains and crews of vessels, 212.
federal, have jurisdiction where captain maliciously assaults seaman,
448.
federal have no jurisdiction when title in third person, 106.
federal question presented, 100-114.
federal question must appear in record, 104.
fugitive extradited for trial in state court, not subject to arrest by
federal court, 336.
international law alone does not bind to deliver fugitives, 308.
judgments of in seceding states, 34.
jurisdiction of, not affected by illegal procurement of prisoner, 304.
no power to adjudicate title under grant pending before Congress, 283.
open for redress, bar to national action for mob violence, 489.
power to try fugitive on charge different from the one on which he
was extradited, 358.
powerless to inquire whether treaty was properly executed, 93.
province of, to construe treaties, 94.
resident aliens suing in, 218.
rights under treaties of cession, how enforced, 281, 282.
to present federal question, treaty right must be set up, 103.
suits against consuls, 411.
transitory action by aliens, 219.
treaty recognizing rights in Indians, 255.
war vessel in American ports exempt from jurisdiction of, 333.
will not pass upon power of Indian tribes, 93.
Courts-martial, consul as witness before, 432.
Covenant, Chinaman, not to rent property to, 217.
Creditors, removal of fund to foreign country for administration, 161.
Crews, Foreign, jurisdiction of consuls over, 212.
Crimes, bribery, an extraditable offense in Mexico and Netherlands, 368.
See Chinese Exclusion; Extradition.
certificate of criminality before President can order extradition, 358.
Treaties — 52
818 INDEX.
[References are to Sections.]
Crimes, common-law, 316.
condemnation of offenses no ground to refuse surrender in extradition,
359.
consul cannot compel vessel to transport person accused of, 357.
consul violating criminal laws, 404.
criminal by the law of both countries in extradition treaties, 314.
committed within jurisdiction as to extradition, 309.
employment of aliens on public works, 201.
false pretenses*, obtaining money by, extraditable, 368.
murder, Indian may be indicted for, committed outside of reservation,
216.
necessity of laws for violation of treaty obligations, 474-479.
not complete in one country, as to extradition, 310.
political offenses, extradition for denied, 328.
surrender of fugitive in extradition on different charge, 358.
treaties of extradition do not guarantee fugitives an asylum, 312.
Criminal Cases, aliens protected by fifth and sixth amendments, 196.
Criminal Procedure. See Extradition.
aliens bound by same as citizens, 211.
Criminals. See Extradition.
power of state to exclude, 190.
Cuba, copyrights in, protected by treaty, 279.
duties on products of suspended, 80.
foreign territory, although under military government appointed by
President, 307.
international copyright, benefit of extended to, 72.
obligations arising from occupation of, 294.
patents in, protected by treaty, 279.
Penal Code of, forbidding taking of public funds, 317.
treaty of 1903, when went into effect, 88.
treaties in force, Appendix, page 640.
CuTberson, Senator, debate as to Japanese attending public schools, 149,
note.
C'urtesy, aliens taking by, 227.
Customs Tariffs, international union for, Appendix, page 784.
Dam, Kio Grande, effect of treaty in, 297.
Damages, employees leaving property in case of violence by mobs no de-
fense, 554.
for bridge, 173.
for injury by mobs, 545-554.
gambling-house keeper, in case of mob violence, 554.
government will not present a claim for speculative or exorbitant, 563
inability to suppress riot, no bar in case of mob violence, 553.
INDEX. 819
[References are to Sections.]
Damages, interruption of business in cases of mob violence, 554.
militia sent to scene does not relieve city from, in case of mob violence,
554.
participation of owner, in mob violence, 548.
reputation of deceased in mitigation of damages for injuries by mobs,
547.
right of nonresident alien to for death of relative, 215.
suits to recover, for death of Italians in Mafia riots, 530.
Date, treaty becomes effective from, 86, 132.
treaty effective from, irrespective of ratification, 87.
Davis, J. C. Bancroft, codification of rules of construction of treaties, 132.
Dawes Commission, proceedings of, 371-373.
Deane, Silas, instructions to, as to entering into treaties, 8.
selection of as commissioner to conclude treaties, 8.
Death, suits to recover damages for in Mafia riots, 530.
Debtor, release of in jail in extradition proceedings, 360.
Debts, state may refuse to subject fund in state to payment of, to foreign
corporation, 161.
Declaration, added to treaty, 65.
amendment for interpretation, 67.
Declaration of Independence, adopted by Continental Congress, 4.
effected severance with England, 5.
immigration of aliens, after, 256.
Declaration of Intention, citizenship not conferred by, 323.
Deed, acknowledgment of deputy consul-general, 458.
from Indians conveys no title, 382.
De Facto Government, grants of land by, 127.
Default, against consuls, waives exemption to plead privilege, 415.
Definite Issue must arise to present federal question, 113.
Definitions. See Words and Phrases.
Delaware, treaty paramount to statute, 242.
Denial of Justice, in international law, 488.
Denmark, admission of articles free of duty, 169.
attempt against life of head of government not a political offense, 334.
extradition from, for obtaining property by false pretenses, 368.
international copyright, benefit of extended to, 72.
John A. Benson surrendered by, in absence of treaty, 304.
treaties in force, Appendix, page 643.
Denver, attacks on Chinese at, 511-513.
Department of State. See Claims.
extension of time for removing a prisoner in extradition, 357.
regulations for issuance of requisitions in extradition, 369.
transit of extradited prisoner across the United States, 362.
warrant of for surrender of fugitive subject to trial on different charge,
358.
820 INDEX.
[References are to Sections.]
Deportation. See Expulsion.
defined, 299.
Depositions, authentication of to be used in extradition proceedings, 350.
by consuls, outside of state, 458.
foreign, how to be certified in extradition proceedings, 351.
to have same weight as if deponent was present, 351.
Deputy Consul-General, acknowledgments by, 458.
Descent. See Inheritance.
aliens acquiring titles by, 226.
Deserting Seamen, from ships of war, treaty with Eussia, 117.
surrender of, to consuls, 367.
Devise, aliens taking by, 222.
included in word ' ' purchase, ' ' 223.
Dickinson, John, instructions signed by relative to entering into treaties, 8.
Dillon, case of as consul at San Francisco, 416.
Diplomatic Officers, instructions as to using language, 119.
Directors, aliens may become in corporations, 229.
Discretion, in presentation of claims against foreign governments, 563.
Disease, persons adding to, prevented from entering state, 206.
Dispensary Act of South Carolina, not violative of treaty, 209.
District Attorney, in extradition, reimbursement for expenses in, 365.
District Courts, concurrent jurisdiction with court of claims, 588.
District of Columbia, court of claims has no jurisdiction of claim against,
583.
Diverse Citizenship, sole ground of jurisdiction at commencement of suit, 111.
Dominican Republic, suspension of tariff, act as to, 73, note.
treaty with does not prevent special concessions, 169.
treaties in force, Appendix, page 647.
Dower, aliens taking by, 227.
Ecuador, treaties in force, Appendix, page 627.
Edmonds, Senator, views of, on appropriation for attacks on Chinese, 523.
Education. See Public Schools; Separate Schools.
Effect, Taking, of Treaties, dependent on conditions, directory, 65.
dependent on legislative action, 87.
of treaty on individual rights, 91.
postponed until approval of Congress, 88.
retroactive, of treaties, 92.
retroactive, of extradition treaties, 321.
special time as to extradition treaties taking, 322.
time when treaty takes, 86.
when treaty with Cuba takes, 88.
Effects, word construed with "biens, " 246.
meaning of in treaty, 260.
INDEX. 821
[References are to Sections.]
Egypt, American citizens in service of entitled to national protection, 565.
treaties in force, Appendix, page 649.
Ejectment, alien friend may maintain, 228, 240.
Embezzlement, corporation, funds of private not public, moneys, 317.
extraditable in some treaties, 368.
funds of savings bank owned by a city in Germany, 317.
in extradition proceedings, accounting for money, 351.
Japan, supplementary treaty as to extradition for, Appendix, page 702.
public moneys, extradition for, 317.
receipt of checks for money due to as extraditable crime, 317.
treaty with Italy, additional article, Appendix, page 695.
Eminent Domain, constructing railroad across lands in possession of Indians,
•385.
Enabling Act of states as repealing treaties, 170.
England. See Great Britain.
amount of evidence required in, on extradition proceedings, 350.
foreign judgments, effect of in, 444.
treaty-making power, difference between and United States, 58.
Equity, escheat, when will not enjoin, 223.
judgments set aside for fraud, 292.
Escheat, aliens, disability of to. inherit, 221.
aliens taking by dower or curtesy, 227.
as affected by treaties with Great Britain, 236.
California, constitutional provisions relating to, 227.
equity, when will not enjoin, 223.
foreign corporation purchasing stock in local corporation, 224.
law constitutional passed while proceedings pending, 225.
legislation when required, 225.
Kentucky, title in, vests in state without office found, 251.
Maryland, law in superseded by treaty, 235.
method provided by statute must be followed, 223.
New York, treaty barring, 258.
Virginia, proceedings in, 231.
war of 1812 did not devest title, 266.
Estates, administration of by consuls, 202, 452.
Estoppel, boundary line between two states recognized, 50.
Ethiopia, treaties in force, Appendix, page 649.
Evidence, burden of proof in Chinese cases, 191.
certificate of Chinese government of mercantile character, 191.
certificate of consul not conclusive in suit for wages, 454.
circumstantial, as to drawing checks sufficient on extradition for for-
gery, 350.
claims against municipal corporations for mob violence should be es-
. tablished with reasonable certainty, 553.
conflict in, in extradition proceedings, 356.
consul testifying to facts within his personal knowledge, 431.
822 INDEX.
[References are to Sections.]
Evidence, depositions in extradition proceedings, 350, 351.
further to be obtained, not ground for review in extradition proceed-
ings, 356.
in extradition proceedings, amount of required, 350.
in extradition proceedings, on charge of embezzlement, immaterial what
amount accounted for, 351.
in extradition proceedings, on behalf of the fugitive, 352.
in extradition, property taken from accused, 363.
insanity as defense in extradition proceedings, 352.
judicial knowledge of seal and signature of consul, 457.
judgments in personam prima facie valid, 436.
loss of Chinese certificate by theft, 191.
passport of consul as, 401.
President may refuse surrender of insufficient in extradition proceed-
ings, 357.
Executive Agreements, President has power to make, 70.
Executive Department, views of as to treaties superseding state laws, 237.
Executor, investing in Confederate bonds, 28.
Executory Rights, " property" includes, 278.
Exemption from Taxation, contract of state for, 51, 52.
Exclusion, citizen cannot be excluded except for punishment for crime,
187.
See Chinese Exclusion.
convicts, lepers, paupers, vagabonds and criminals, 190.
every nation may exclude aliens, 180.
Expatriation, American citizens, 470.
England permits, 461.
not allowed during war, 471.
statute of, 1907, 471.
Expenses, county, payment of, by, in extradition, 366.
in extradition proceedings, 364-366.
in extradition, government and not officer to pay, 364.
in extradition, offense against laws of particular state, 364.
in extradition, offense against laws of territory, 364.
in extradition, reimbursement of district attorney, 365.
in extradition, method for payment of, 366.
in extradition, translation, payment for, 366.
in extradition, intervention of United States in conflict with state,
366.
Ex Post Facto Laws, crimes committed without the jurisdiction of the
United States, 307.
extradition treaties are not, 321.
provision as to not applicable to extradition treaties, 92.
Expulsion. See Chinese Exclusion.
aliens may be expelled, 186.
Extradition, abduction by force from foreign country, 311.
abduction from United States to Canada, 313.
INDEX. 823
[References are to Sections.]
Extradition, anarchists not considered political offenders, 335.
appeal, and not writ of error allowed, 354.
appeal may be taken by consul, 355.
arrest of fugitive second time in new complaint, 348.
arrest on foreign vessel, 348.
arrest on telegraphic information, 348.
arrest, provided for by Revised Statutes, 348.
arrest, provisional, 349.
attorneys not required to appear for foreign government, 344.
bail, no provision for, 344.
Benson, John A., surrendered by Denmark, 304.
bonds and coupons, 315.
books of account, false entries in, 318, 320.
bribery, extradition for crime of, committed prior to treaty, 321.
bribery extraditable under treaties with Mexico and Netherlands, 368.
bribery, need of more effective treaties for, 321.
British subject committing murder on ship at Cuba and landing in New
York, 310.
Canada, person dying from poison administered in United States, 310.
certificate of criminality by the courts required before President can
order, 358.
Chile, delivery from not asked in absence of treaty, 303.
citizens, citizenship a matter of defense, 323.
citizens, contention of Mr. Blaine, 324.
citizens, declaration of intention does not make, 323.
citizens, foreigner acquiring real estate becomes, under Mexican law,
326.
citizens of another country to be surrendered, 327.
citizens, not to be delivered up, 323.
citizens, refusal to surrender to Mexico, 325.
citizens, Switzerland surrendering, 325.
citizens, United States averse to excluding from operation of treaty,
325.
citizens, when not delivered under Mexican treaty, 308.
citizens, yielding to usual mode of trial, 323.
civil process, release of debtor in jail under, 360.
comity, delivery as a matter of, 300.
comity, not now, asked as a matter of, 301.
commissioner may charge usual fees, 366.
common-law crimes, 316.
complaints, consul verifying, 345.
complaints, on information and belief, 345.
complaints, precision of indictment not required, 346.
complaint, sufficiency of, 345.
complaint sufficient, showing commission of treaty offense, 347.
complaints, who may verify, 346.
824 INDEX.
[References are to Sections.]
Extradition, condonation of offenses, 359.
conflicting evidence before commissioner, 356.
Congo, surrendering fugitive voluntarily, 304.
conspiracy to commit a crime abroad, 310.
constitutional guaranties not applicable to crimes committed in foreign
country, 307.
continuances, how granted, 344.
Costa Eica, surrendering fugitive voluntarily, 304.
crime committed on board of ship of war on high seas, 309.
crime. committed within jurisdiction, 309.
crime not complete in one country, 310.
criminal by law of both countries, offense to be essentially same, 314.
counsel, employment of, may be authorized by President, 357.
counsel fees as expenses of, 364.
consuls have no power to require masters of American vessels to
carry fugitive, 357.
consul may appeal, 355.
Cuba, held to be foreign territory, 307.
Cuba, public employee taking public funds in, 317.
date of conclusion of treaty, time at which it becomes effective, 322.
date, treaty declaring it shall not apply to offenses committed prior
to, 322.
definition of, 299.
delivery independent of treaty, 304.
delivery within two months after commitment, 361.
Denmark surrendering John A. Benson, 304.
dependent on treaty, 298.
deportation, definition of, 299.
depositions, authentication of, 350. %
depositions, foreign, 351.
deserting seamen, 367.
different offense, trial for, 336-341.
different offense, fugitive voluntarily returning cannot object to trial
on, 336.
discretion, in cases not covered by treaty, 305.
district attorney, expenses of, 365.
election on charges, 338.
England, forgery as recognized by courts of, 318.
enumeration of certain offenses, excludes others, 301.
embezzlement of funds by cashier in German savings bank, 317.
embezzling public moneys, 317.
embezzlement, accounting for less than amount charged, 351.
embezzlement in some treaties, extraditable offense, 368.
escape, by means of foreign vessel, 302.
escape of prisoner from jail at Constantinople, 310.
evidence, .circumstantial, showing offense, 350.
INDEX. 825
[References are to Sections.]
Extradition, evidence, conclusiveness not required, 352.
evidence, law of what place to govern, 351.
evidence, in behalf of fugitive, 352.
evidence required, certificate of ambassador, 350.
evidence required to warrant, 350.
exemption from local jurisdiction, 333.
expenses of, 364-366.
expenses of, party making requisition to pay, 364.
expenses of, requisition demanded by state authorities, 364.
expenses of when offense is against laws of territory, 364.
expenses, method of payment of, 366.
expenses, services of translator, 366.
expenses, United States intervening, 367.
extension by doubtful construction, 181.
ex post facto law, treaty of, is not, 321.
false affidavits to secure return of fugitive, 312.
favor, asked as, 303.
federal question raised by violation of treaty, 109.
federal court cannot arrest fugitive indicted in state court, 336.
forcibly bringing fugitives into United States, 310.
foreign government, no right to claim without a treaty of, 308.
foreign government may complain of forcible arrest, 313.
foreign territory, constitutional guaranties do not apply to crimes
committed in, 307.
foreign territory, Cuba held to be, 307.
foreign vessel, escape by means of, 302.
forgery, definition of, 316.
forgery, as defined by courts of England, 318.
forgery, in treaty with Austria-Hungary, 319.
forgery, fugitive arrested for larceny cannot be tried for, 336.
forgery in the third degree, 320.
France, laws of place of refuge, 319.
fraudulent use of the mails, persons charged with, 358.
fugitives not to be delivered up without treaty, 298.
fugitive may be tried for any charge pending in United States against
him, 358.
government, real party in interest, 355.
governor, statute authorizing delivery of fugitive, unconstitutional, 308.
Grogan, abduction of, 313.
habeas corpus cannot perform office of writ of error, 353.
habeas corpus proceedings, 353.
Harden, extradition of, 300.
Holmes case, 37.
homicide under military law, 319.
homicide, in treaty with Salvador defined, 319.
illegal return of fugitive does not affect jurisdiction of court, 304.
826 INDEX.
[References are to Sections.]
Extradition, immigration acts, delivery under, 306.
immigration acts do not take place of treaties of, 306.
indictment and trial valid, 312.
indictment, ordinary technicalities not applicable, 347.
indictment quashed, 347.
insanity, evidence of, to rebut presumption of guilt, 352.
international law, courts not bound by to deliver fugitives, 308.
irregularities in, 311.
irregular, foreign government may complain, 313.
Italian code forbidding extradition of Italian subjects, 324.
Japan surrendering Calvin Pratt, 304.
jewels of Princess of Orange returned, 363.
jurisdiction of court not affected by illegal return of prisoner, 304.
"jurisdiction," convertible with term "country," 309.
jurisdiction of supreme court, to review provisions of treaty for, 354.
kidnaping fugitive in foreign country, 311.
kidnaping, voluntary return by Great Britain, 313.
larceny, fugitive extradited for, cannot be tried for forgery, 336.
law of the place of arrest, 318.
law of the place of refuge, 319.
lesser offense, trial for, 339.
Lincoln, demand for surrender of assassin of, 334.
magistrate, who may act as, 344.
malice on part of prosecuting witness, 348.
mandate, 343.
man-of-war, escape by means of, 302.
marshal, counsel may be employed by President in behalf of, 357.
marshal may charge usual fees, 366.
Mexican government not allowing, where no treaty exists, 303.
Mexican law as to surrender of fugitive, 326.
Mexico, definition of forgery in, 316.
Mexico, delivering fugitive without treaty, 300.
Mexico, regulations of Department of State as to, Appendix, page 589.
most favored nation clause does not extend to, 131.
municipality, money due to, accounted for only in part, 317.
murder, extradition of fugitive from Spain when not demanded, 303:
murder, in treaty with Salvador, defined, 319.
murder on high seas, law of place, 318.
nation has no right to invade territorial waters of another state, 313.
Neilson, extradition of, 300.
not allowable for collection of debts, Appendix, page 607.
offense committed pending trial, 341.
offense criminal by law of both countries, 314.
officer falsely certifying to invoices, 317.
officer on way, no excuse for delay, 361.
omission of words, "or be punished," 178.
INDEX. 827
[Referer^-r are to Sections.]
Extradition, Pilcomayo mutineers, 332.
plea to prevent, only legal one can be entertained, 359.
pleading, trial for different offense, 337.
pleading of irregular bringing to United States, 311.
poison administered in United States to person dying in Canada, 310.
political offenses, 328.
political offenses, during Civil War, 330.
political offenses, attempt on life of President, 334.
political offenses, anarchists, 335.
political offenses, whom to decide, 329-331.
Porto Eico, request of governor of, 303.
Pratt, Calvin, surrendered by Japan, 304.
preliminary examination is not a final trial, 344.
President, attempt against life of, 334.
prior charge, arrest on, 340.
provisional arrest, Appendix, page 581.
Prussia, embezzlement of public moneys under treaty with, 317.
public moneys, what are, 317.
reciprocity, Mexican government requiring, 303.
reciprocity, no power in the United States, 301.
reciprocity, law of Mexico as to, 321.
refusal to surrender fugitive, 359.
regulations of state department, 369; Appendix, page 579.
release of debtor in jail under civil process, 360.
rendition of services to the government no ground for refusing, 359.
requisites of applications for extradition, Appendix, pages 585-589.
requisition, application for, 342.
restoration of property, 363.
retroactive effect of treaties of, 92, 321.
right of foreign nations to demand surrender without treaty not recog-
nized, 308.
Salvador, fugitives from, arrested on steamer, 310.
San Ignacio, raid at, 331.
setting aside indictment after, 305.
ship of war on high seas, crime committed on, 309.
South African Eepublic, .extradition from, when allowed, 310.
Spain, delivering fugitive without treaty, 300.
state cannot negotiate for, 35.
state court, judgment of on plea of irregular extradition reviewable,
311.
statute authorizing governor to deliver, unconstitutional, 308.
statute imposing on county expenses of returning fugitive, 366.
surrender not in pursuance of treaty, 305.
surrender of fugitive an executive function, 357.
surrender, President may refuse if evidence insufficient, 357.
surrender on different charge, 358.
828 INDEX.
[References are to Sections.]
Extradition, territory occupied by United States, 307.
territory, offenses against laws of, expenses, how paid, 364.
time of taking effect of treaties of, 321.
time of taking effect, special stipulation as to, 322.
time for taking a prisoner away cannot be enlarged, 357.
tolls, money collected as, 317.
trial valid although surrender irregular, 312.
transit across United States, 362.
translator, services of as expenses, 366.
transportation, definition of, 299.
trial for another offense, rule does not apply to voluntary surrender,
305.
treaties now govern, 38.
treaty-making power includes, 298.
treaty, measure of right, 308.
Tweed, delivery of, 300.
two charges in two different states, 358.
United States not obligated to deliver fugitives without treaty, 298.
validity of treaty cannot be questioned on, 96.
variances, 338.
verification of complaints, 346.
violence used to take prisoner from one state to another, 311.
voluntary surrender of fugitive, 304.
voluntary surrender, rule as to trial for another offense not applicable,
305.
voluntary surrender setting aside indictment, 305.
war vessel of foreign nation exempt from jurisdiction of courts, 333.
writ of error and not appeal allowed, 354.
Extradition Treaties in Force, Austria-Hungary, Appendix, page 613.
Bavaria, Appendix, page 616.
Belgium, Appendix, pages 620, 621, 622.
Bolivia, Appendix, page 623.
Brazil, Appendix, page 626.
Chile, Appendix, page 629.
Colombia, Appendix, page 637.
Cuba, Appendix, page 642.
Denmark, Appendix, page 646.
Dominican Kepublic, Appendix, page 648.
France, Appendix, pages 655, 656.
Greece, Appendix, page 685.
Great Britain, Appendix, page 676.
Great Britain, supplementary, Appendix, pages 680, 682.
Hayti, Appendix, page 687.
Hanover, Appendix, page 688.
Japan, Appendix, page 700.
Japan, supplementary, Appendix, page 702.
INDEX. 829
I
[References are to Sections.]
•xtradition Treaties in Force, Italy, Appendix, pages 694, 695, 697.
Luxemburg, Appendix, page 704.
Mexico, Appendix, pages 710, 717, 718.
Netherlands, Appendix, pages 724, 725.
Nicaragua, Appendix, page 726.
Norway, Appendix, page 727.
Orange Free State, Appendix, page 729.
Ottoman Empire, Appendix, page 730.
Panama, Appendix, page 731.
Peru, Appendix, pages 736, 737.
Prussia, Appendix, page 740.
Prussia, Appendix, page 744.
Servia, Appendix, page 750.
Salvador, Appendix, page 746.
Spain, Appendix, pages 755, 756.
Sweden, Appendix, pages 761, 762.
Switzerland, Appendix, page 764.
Wiirttemberg, Appendix, page 773.
Extraterritoriality in non-Christian countries, 405.
False Entries, in books of account, not forgery under English law, 318.
False Imprisonment, constable liable for where consul has exclusive juris-
diction, 448.
False Pretenses, obtaining money by, law in United States court for China,
410.
obtaining property by an extraditable offense, 368.
, Federal Question arising under treaties, 100.
award under claims commission, 110.
bankruptcy, outstanding title in, 107.
both parties claiming under grant, 102.
claim under treaty not a frivolous one, 105.
construction of state statutes, 108.
definite issue as to claim of rights, 113.
diverse citizenship sole ground of jurisdiction, 111.
does not arise from fraudulent grant, 102, 103.
extradition, violation of treaty of raises, 109.
fraudulent claim, 101.
manner in which cause of action arises to be stated, 114.
protection of inhabitants, 109.
rights arising before treaty, 100.
title in third person under treaty, 106.
treaty introduced as part of history of case, 112.
treaty right must be set up, 103.
when must be set up, 104.
830 INDEX.
[References are to Sections.]
Fee, section 16 occupied by Indians, 379.
Fees, commissioner and marshal in extradition proceedings, 367.
counsel, in extradition proceedings, 364.
district attorney in extradition proceedings, 365.
Ferrara, Pietro, claim of against United States based on Italian treaty, 575,
Fifth Amendment protects aliens, 196.
Fisheries, modus Vivendi as to northeastern, 70.
treaty with Great Britain relating to, Appendix, page 672.
Flint, Senator, debate as to Japanese attending public schools^ 149, note.
Florida, acquisition of under treaty power, 268.
grant of land in, by Spain binding, 273.
inhabitants of, before cession becoming citizens, 295.
treaty with Spain, as to lands in, 65.
treaty for cession of, Appendix, page 754.
Foraker, Senator, debate as to Japanese attending public schools, 149, note.
Foreign Corporations, not subjects, 296.
payment of indebtedness to, may be refused by attachment of fund
in state, 161.
purchasing stock of local corporation, 224.
Foreigners. See Aliens.
Foreign Governments. See Claims.
claims against, 555-590.
money received from in trust for American citizens, 578.
Foreign Heirs. See Aliens.
may inherit, 250.
Foreign Judgments, effect of in United States, 435-444.
Foreign Ship, escape by means of no ground for refusing extradition, 302.
jurisdiction of crime on, 129, 130.
Forgery, bonds and coupons as samples, 315.
circumstantial evidence as to drawing checks, sufficient evidence of
on extradition, 351.
crime of uttering forged papers included in, 319.
false entries in books of account, not included in English, definition of,
318.
fugitive, extradited for larceny, cannot be tried for, 336.
in the third degree, not covered by Mexican treaty, 320.
Mexico, under extradition treaty with, 316.
signature obtained by fraud, whether constitutes, under treaty with
Japan, 320, note.
Fourteenth Amendment, applies to aliens, 195.
Chinese exclusion laws not applicable to person born in the United
States, 188.
France, commercial agreement with, 73, note.
Continental Congress proposing treaty to, 8.
destruction of privateers of, by mob violence, 497.
international copyright, benefit of extended to, 72.
INDEX. 831
[References are to Sections.]
France, judgments rendered in, effect of, in United States, 437.
persons adding to prevalence of disease as to treaty with, 206.
Tennessee, laws of subject to treaty with, 264.
treaty providing law of place to be applied in extradition proceedings,
319.
treaties in force, Appendix, pages 650-659.
treaty with, superseding constitution of Nebraska, 236.
treaty with as to powers of consuls relative to shipping and seamen,
453.
treaties in force, Appendix, pages 650-659.
Franklin, Dr. Benjamin, instructions signed by, relative to entering into
treaties, 8.
selection of as commissioner to conclude treaties, 8.
Fraud, consul corruptly influencing officers of foreign government, 445.
in claims, will justify government in refusing to present, 566.
judgments set aside for, 292.
Fraudulent Claim, not case arising under treaty, 101.
French Privateer, destruction of, by mob violence, 497.
Frivolous Question, claim under treaty is not, 105.
Fulton, Senator, debate as to Japanese attending public schools, 149, note.
Fur Seals, modus vivendi, as to, 70.
treaty with Great Britain relating to, Appendix, page 677.
Gambling, damages to house by mob violence; 554.
Geneva, treaty of, for amelioration of wounded in time of war, Appendix,
page 775.
German Empire, treaties in force, Appendix, page 659.
Germany, international copjTight, benefit of extended to, 72.
Samoan Islands, operations in, 272.
suspension of tariff act as to, 73, note.
treaty with does not require state courts to subject fund to payment
of debts by attachment to foreign corporation, 161.
treaty with, does not take away jurisdiction of admiralty courts, 455.
Gilbert Islands, Great Britain, operations in, 272.
Good Faith, interpretation to be in, 116.
Goods, not including "lands" in treaty, 249.
Government, responsibility of, for mob violence, 472-554.
Government, Claims Against. See Claims.
Governor, not authorized to deliver fugitives, 308.
Grant, abandoned, deemed to be, when, 284.
allowance of in part, by Congress, 293.
both parties claiming under, no federal question presented, 102.
by a de facto government, 127.
832 INDEX.
[References are to Sections.]
Grant, collateral attack on patent not permitted, 582.
confirmation of, operation in favor of confirmee only, 292.
measuring of land, 287.
Mexican, in Arizona, contesting, 282.
Mexican titles in California after treaty, 290-292.
obtained by fraud, no federal question presented, 101.
perfected claims not excluded from land commission, 286.
pending before Congress, power of courts to adjudicate, 283.
simulation of presents no federal question, 103.
Spain, power of, to make on any consideration, 278.
states making, in case of disputed boundaries, 275.
survey when necessary to identify, 285.
title under act of Congress inferior to, when, 277.
treaties protecting, 276.
unassailable until survey made, 282.
Great Britain, breaches of treaty of peace with, 14.
confiscation acts annulled by treaty with, 261.
Gilbert Islands, operations in, 272.
international copyright, benefit of extended to, 72.
modus vivendi as to fur seals, 70.
permits expatriation, 461, 465.
policy of, in presentation of claims against governments, 564.
provisional detention of fugitives from justice in, Appendix, page 584.
relinquishment of claim to property, 378.
suspension of tariff acts as to, 73, note.
treaty as to fugitive criminals, 178.
treaty with nullifies law sequestering property, 166.
treaty of peace with, 12.
treaties with superseding state laws, 236.
treaty of 1794 overcoming laws of Kentucky, 251.
treaties in force, Appendix, pages 661-684.
Greece, treaty with, not amended by declaration of interpretation, 67.
treaties in force, Appendix, page 683.
Guadalupe Hidalgo, Texas, statute of, as in conflict with, 265.
treaty of, protecting rights of property, 274.
Guardian, investing in Confederate bonds, 27.
Guatemala, suspension of tariff act as to, 73, note.
treaties in force, Appendix, page 684.
Guenther, American consul subpoenaed as witness, 427.
Habeas Corpus. See Extradition.
appeal and not writ of error proper procedure, 354.
cannot perform office of writ of error, 331, 353, note,
cannot end extradition proceedings regularly instituted, 356.
Chinese exclusion cases, 192, 193.
INDEX. 833
[References are to Sections.]
Habeas Corpus, citizen of foreign state, in custody for act done under for-
eign authority, 510.
conflict of evidence in extradition proceedings, 356.
consul may appeal in extradition proceedings, 355.
crimes committed without the jurisdiction of the United States, 307.
discharge, where forgery charged is false entries in books of account,
318.
extradition, conflicting evidence not reviewed on appeal, 356.
extradition, consul may appeal, 355.
federal court will not interfere with state courts, until every remedy
exhausted, 353.
further evidence not ground for review in extradition proceedings, 356.
release of debtor in jail under civil process, 360.
Hague Convention settlements of international disputes, Appendix, page 785.
Hamburg, treaties in force, Appendix, page 689.
Hanover, treaties in force, Appendix, page 688.
Hanseatic Republics, treaties in force, Appendix, page 689.
Harrison, Benjamin, instructions signed by relative to entering into treaties,
8.
recommendations of, for punishment of violation of treaty rights, 474,
475.
Hawaiian Islands, acquisition of, wishes of population not consulted, 270.
Japan objecting to acquisition of, 270.
reciprocal concessions do not infringe other treaties, 169.
treaties with, terminated, Appendix, page 690.
Hay, John, instructions to United States consul at San Juan del Monte, 430.
Hayti, treaties in force, Appendix, page 686.
Head-money Cases, immigration acts, 175.
Heirs, claim of, precluded by lapse of time, 252.
See Aliens; Inheritance.
foreign citizen, heirs of, inheriting, 250.
Hemp, license for manufacture of, protection by treaty, 279.
Hennessy, Chief of Police, killed in Mafia riots at New Orleans, 526.
Hesse, treaty of naturalization with, 464.
treaties in force, Appendix, page 692.
History of the Case, treaty introduced as part of, does not involve validity
of treaty, 112.
Holmes Case, on extradition, history of, 37.
Homestead, grant as affected by entry of, 276.
Homicide, under treaty with Salvador, 319.
Honduras, suspension of tariff act as to, 73, note.
House of Representatives, appropriation of money pursuant to treaty, 81-83.
Hungary, trademarks, treaty respecting, 280.
Hunting, right of, in Indians revoked by act admitting state, 170.
Treaties — 53
834 INDEX.
[References are to Sections.]
Illinois, resident of Sweden inheriting in, 246.
treaty paramount to statute in, 243-245.
Immigration, power of Congress to pass acts relating to, 175.
Immigration Acts, criminals, return of, under, 306.
fugitives from justice, surrender of, under, 306.
Implication, repeal of treaty by subsequent one, 99.
repeal of treaties by, not favored, 178.
statutes, rule as to repeal of, 184.
Imports, suspension of act prohibiting, 77.
Impossibility of Performance as terminating treaty, 95.
Indemnity. See Mob Violence.
for certain Chinese losses, 524.
killing Italians in Colorado, 531.
tendered for Italians killed in Mafia riots, 528.
Indians, abandonment of possession by, 382.
act creating Oklahoma superior to treaty exempting lands, 171.
acts of Congress bind, 385.
adoption of white person into tribe, 385.
appeal to supreme court, 375.
California lands in, became a part of the public domain, 383.
Cherokee, obtaining injunction against Georgia, 384.
citizens, becoming, 386.
constitutionality of legislation, 376.
contract with, in violation of treaty, void, 389.
courts will not pass upon power to make treaties, 93.
courts bound by treaty recognizing rights in, 255.
cutting timber by, 380.
Dawes Commission, 371-373.
deed from, passes no title, 382.
effect of treaties with, 388.
eminent domain for railroad across lands occupied by, 385.
fee to land, cannot pass, 382.
federal courts having jurisdiction of suits brought by government for,
386.
federal question presented by taxation of lands, 390.
general acts of Congress not applicable to, 385.
government may dispose of land without consent of, 379.
grant of sixteenth and thirty-sixth sections in occupancy of, 383.
jurisdiction of supreme court of the United States, 388.
lands of, taxable when, 170.
laws of state have no effect in their tribal relations, 385.
legislation may control, 391.
liberal construction of treaties with, 390.
INDEX. 835
[References are to Sections.]
Indians, marriage of white persons to, 385.
Montana enabling act gave jurisdiction over crimes of, 171.
murder, according to treaty between United States and Cherokees, 385.
murder outside of reservation, indictment for, 216.
policy of the United States as to, 387.
prevention of intrusion on Indian lands, 216.
pueblo title of, not defeated by change of sovereignty, 277.
purchaser from, acquires only a right of possession, 382.
recognition of executive department followed by the courts, 389.
relinquishment by Great Britain, 378.
right to hunt revoked by act admitting state, 170.
right of occupation, 379.
state cannot regulate social relations of tribe, 386.
state has no power to withdraw from act of Congress as to liquor
traffic, 388.
state laws providing for licenses to enter territory void, 388.
taxation of, 387.
technical meaning of treaties with, not to be considered, 392.
title of the United States devested by patent, 381.
treaties prior to legislation, 377.
treaty power, may dispose of government title, 383.
treaties with, modifying acts of Congress, 171.
treaties with, 370-393.
tribes of, not a foreign state, 384.
tribe party to suit, 374.
Indictment in Chinese exclusion cases, 191.
in extradition proceedings, ordinary technicalities not applicable, 347.
precision of, not required in complaint in extradition, 346.
valid although original arrest illegally made, 312.
variance between charge for which extradition had and one charged
in, 338.
Individual Rights, treaty affecting, when takes effect, 91.
Industrial Property, treaty for protection of, Appendix, page 777.
Infanticide, treaty with Salvador defining, 319.
Information and Belief, complaint based on in extradition proceedings, 345.
Inheritance, aliens taking by devise, 223.
attainder for treason, 262.
curtesy, taking by, 227.
Delaware, treaty superseding statute, 242.
descent, alien acquiring title by, 226.
disability of aliens, 221.
dower, taking by, 227.
foreign corporation purchasing stock of local corporation, 224.
goods not including lands, 249.
heirs of foreign citizen inheriting, 250.
Illinois treaty superseding statutes, 243-245.
836 INDEX.
[References are to Sections.]
Inheritance, improving property, 259.
lapse of time precluding claim of heir, 252.
limitation on time to sell in New York, 257.
Kentucky, aliens do not take by descent in, 250.
Maryland, law of, overcome by treaty, 253.
Massachusetts, laws of, overcome by treaty, 254.
New York, laws of, superseded by treaty, 256.
North Carolina, laws of, overcome by treaty, 260.
of property primarily a state right, 241.
Pennsylvania, laws of, overcome by treaty, 261.
rents, alien heir enjoying, 259.
resident of Sweden inheriting in Illinois, 246.
resident heirs, aliens having same rights as, 259.
right of alien to inherit affected by treaty, 220.
sale of interest of heir, 231, 232.
South Carolina, laws as to alienage, overcome by treaty, 263.
Tennessee, laws of, subject to treaty, 264.
title of alien can be devested only by office found, 221.
title in aliens, when treaty made, 222.
title, one vested not devested, 234.
title, existence of, at time of treaty, 258.
valid titles only protected by treaties, 255.
vested remainders included in lands, 254.
Virginia, laws of, subject to treaty, 266.
Virginia, statute of, relating to, 228.
Waldeck, citizens of, affected by treaty with Prussia, 250.
Wiirttemberg, treaty with, allowing time to sell, 257.
Injunction, escheat, when not enjoined, 223.
In Rem, judgments valid universally, 435.
power of consul to commence suit in, 450.
Insanity, fugitive may introduce as defense in extradition proceedings, 352.
Intention of treaty to be carried out, 117.
Interest allowed to New York for money borrowed from canal fund, 580.
bonds of North Carolina, 579.
in court of claims, 580.
not allowable on internal revenue taxes paid without protest, 580.
part of national indemnification, 132.
payment of, on claims against government, 579.
Internal Police, states have right to regulate, 170.
Internal Revenue, interest paid on taxes without protest not allowable, 580.
International Arbitration, Hague convention, Appendix, page 785.
International Copyright, benefit of, extended to certain nations, 72.
Jnternational Law, cession of territory, 271.
claims arising on contracts, 582.
.commission of acts of hostility by foreign insurgents in waters of an-
other state, 332.
INDEX. 8137
[References are to Sections.]
International Law, courts not bound by, alone, to remand prisoners for trial,
308.
forcible trespasses and evictions, 581.
founded on mutuality, 438.
government not responsible for acts of subjects, 473.
inviolability of territory of independent states, 509.
justice denied, how considered by, 488.
part of the law of the United States, 434.
surrender of citizens, 324.
war vessel in American port exempt from local jurisdiction, 333.
Interoceanic Canal, protocol for construction of, Appendix, page 639.
Intervention by consul, 451.
Invoices, false certification of, as extraditable offense, 317.
Iowa, " goods" not including "lands," 249.
laws of state, treaty conflicting with, will control, 250.
treaty superseding statute in, 248.
Italians, lynching of, 534, 540.
killing of, by mob violence in Colorado in 1895, 531.
Mafia riots at New Orleans, 526-530.
voting as a bar to recovery for mob violence, 537.
Italy, commercial agreement with, 73, note.
contention of, in case of lynching of Italian subjects at Hahnville, 536.
demands of, in Mafia riots, 527.
extradition for political offenses, 334.
international copyright, benefit of, extended to, 72.
Penal Code of, forbids extradition of Italian subjects, 324.
persons adding to prevalence of disease as to treaty with, 206.
right of consul to administer on estates, 202.
treaty with, involved in suits for damages in Mafia riots, 530.
treaty with, as basis of claim against government, 575.
treaties in force, Appendix, page 693.
Japan, Calvin Pratt surrendered by, in absence of treaty, 304.
claims of, for boycott, 544.
Hawaiian Islands, objections to acquisition of, 270.
signature obtained by fraud, whether extraditable offense, 320, note.
suits to compel attendance at public schools, 159.
treaty provisions as to attending public schools, 146.
treaties in force, Appendix, pages 697-703.
Japanese, hostility to, necessity for laws as to violation of treaty obliga-
tions, 479.
Jay, John, comments of, in treaty power, 21.
Jewels, restoration of, in extradition proceedings, 363.
838 INDEX.
[References are to Sections.]
Judgments, Canadian, effect of, in United States, 443.
conclusive between citizens, 435.
court of claims, 590.
decree determining title under grant, has effect of, 292.
foreign, international law a part of the law of the United States, 434.
foreign, impeached for fraud, 440.
foreign, reciprocity in, 435.
foreign, rule in England, 444.
in personam, prima facie valid, 436.
in rem, 435.
Mexican, effect of, in United States, 442.
naturalization, order of, has effect of, 467.
of condemnation annulled by treaty, 234.
of courts in seceding states, 34.
prior conviction does not authorize arrest of extradited person, 340.
rendered in France, effect of, 437.
suit to recover part of judgment rendered by Alabama Claims Com-
missioners, 583.
status of person affected by, 435.
Jurisdiction. See Courts.
convertible with term "county," 309.
war vessel in port exempt from courts', 333.
Jury, exemption of consuls from service on, 404.
Kent, Chancellor, comments on treaties, 136.
Kentucky, aliens do not take by descent in, 251.
treaty overcomes laws of alienage, 251.
Key West, mob riots in 1851, 500.
Kidnaping, government may complain, 313.
prisoner, without proceeding under treaty of extradition, 311, 312.
Kongo, treaties in force, Appendix, page 702.
Korea, treaties in force, Appendix, page 703.
Labor, aliens on public works, 201.
right to, included in property, 200.
Laborer, in Chinese exclusion acts, used in popular sense, 191.
Laches, trademarks, loss of, by, 280.
Land Commission, perfected claims not excluded from, 286.
Lands includes any estate, 254.
includes vested remainders, 254.
not included by word "goods," 249.
Language. See Construction.
in French, 118.
instructions to diplomatic officers, 119.
INDEX. t 339
[References are to Sections.]
Language, treaties formerly in Latin, 118.
treaties in two languages, construction of, 118, 120.
vague and indefinite terms in treaties, 122.
Larceny, fugitive extradited for, cannot be tried for forgery, 336.
Japan, supplementary treaty as to extradition for, Appendix, page 702.
Laundries, ordinances concerning, 213.
Law, treaty construed as, 127.
Lee, Arthur, commissioner to conclude treaties, 8.
selection of as, commissioner to conclude treaties, 8.
Legislative Action, treaty dependent on, 85.
treaty dependent on, when takes effect, 87.
Legislative Power, difference between and treaty-making power, 138.
Lepers, power of state to exclude, 190.
Lesser Offenses, conviction of person of, extradited under a charge of
greater, 339.
Letter Carriers, suing in courts of claims, 588.
Lew Chew, treaties in force, Appendix, page 704.
Lewis, William Draper, views as to Japanese attending public schools, 151-
154.
Liberia, treaties in force, Appendix, page 704.
License, hemp, manufacture of, protected by treaty, 279.
of aliens for privilege of mining, 239.
state laws void requiring Indians to have to enter territory, 388.
Lincoln, surrender of assassin of requested from governments, 334.
Liquor, regulation of traffic in, with Indians, 388.
Louisiana, acquisition of, under treaty power, 268.
grant of franchise after cession of, 87.
grant perfected under Spanish authority, 277.
incomplete titles not made complete by acquisition of, 283.
inhabitants of, before cession becoming citizens, 295.
inhabitants enjoying equal rights, 109.
inhabitants of, protected by treaty of cession, 269.
lynching of Italian subjects in, 534.
statute prohibiting entry of persons adding to prevalence of disease,
206.
statute of, does not render city liable for death caused by mob violence,
530.
treaty for cession of, Appendix, page 652.
Lourenco Marques, damages for rescission of concession of railroad at, 567.
Lubeck, treaties in force, Appendix, page 689.
Liineburg, treaties in force, Appendix, page 626.
Luxemburg, attempt against life of head of government not a political
offense, 334.
treaties in force, Appendix, page 704.
840 INDEX.
[References are to Sections.]
Lynching, Italian subjects, 534, 540.
Mafia riots at New Orleans, 526-530.
Mexican shepherds in Texas, responsibility of government for, 473.
MacMurdo, Edward, claim of, against Portugal for seizure of railroad, 567.
Madagascar, colony of France, Appendix, page 705.
Madison, James, comments of, on treaty power, 16, 133.
proclamation of, as to action of France, 75.
Mafia Riots, at New Orleans, 526.
demands of Italian government, 526.
suits to recover damages, 530.
tender of indemnity, 529.
withdrawal of American minister, 528.
Magistrate, in extradition proceedings, commissioner of federal circuit court
may act as, 344.
in extradition proceedings, preliminary examination and not final trial,
344.
in extradition proceedings, judge of court of record may act as, 344.
in extradition proceedings, who may act as, 344.
prisoner arrested on extradition proceedings to be taken to the nearest,
348.
Mails, fraudulent use of, persons charged with, detained instead of sur-
rendered on extradition, 358.
Making of Treaties, adding declaration, 65.
amendment by declaration of interpretation, 67.
appropriation of money, 81.
difference between treaty-making power in England and in United
States, 58.
executive agreements, 70.
legislative action, treaties dependent upon, 85.
objections to lodging power with President, 57.
power, where placed, 54.
power, where should be placed, difference of opinion, 55.
prerogative of executive, 60.
protocols within executive authority, 71.
proviso adopted by Senate, 66.
ratification by Senate, 62.
rejection by Senate, 63.
Senate resolution controlling meaning of treaty, 69.
suspension of act prohibiting imports, 77.
tariff act, suspension of, by President, 73.
treaty inchoate until ratified, 61.
Malice, commitment of accused for extradition, not invalidated by, 348.
INDEX. 841
[References are to Sections.]
Mallory, Senator, debate as to Japanese attending public schools, 149, note.
Mandate in extradition proceedings, 343.
Maritime Warfare, adoption of principles of Geneva convention, Appendix,
page 787.
Marriage, judgment dissolving, 435.
white person to Indian, 385.
woman marrying foreigner takes nationality of her husband, 471.
Marshals, counsel may be employed by President in suits for acts in ex-
tradition, 357.
fees of, in extradition proceedings, 366.
Maryland, treaty superseding law, 235, 253.
Massachusetts, Continental Congress recommendation for, 3.
laws of, overcome by treaty, 254.
McKinley, President, recommendation of, for punishment of violation of
treaty rights, 476-477.
McLeod, Alexander, arrest for participation in destruction of steamer ''Car-
oline/' 505, 506.
Measures, treaty for international bureau of, Appendix, page 776.
Mechanic's Lien Law, ambassadors not exempt from, 399.
Mecklenburg-Schwerin, treaties in force, Appendix, page 706.
Mecklenburg-Strelitz, treaties in force, Appendix, page 706.
Memoranda, on slips, to conceal embezzlement not forgery in English law,
318.
Messages, President Arthur's proclamation as to products of Cuba and
Porto Eico, 80.
President Cleveland on killing of Italians in Colorado, 531.
President Harrison as to punishment for violation of treaty rights, 474.
President Madison, proclamation of as to France, 75.
President Monroe relative to removal of discriminatory duties, 77.
President McKinley as to punishment for violation of treaty rights, 476,
477.
President Pierce, proclamation as to action of Newfoundland, 78.
President Koosevelt as to punishment for violation of treaty rights, 478.
President Washington on making treaties, 60.
President Washington, declining to give facts relative to Jay's treaty,
81.
Mexican Grants. See Grants.
in California, require confirmation, 171.
Mexico, adjustment of claims against, 108.
aliens inheriting under laws of, 226.
bribery an extraditable offense, 368.
bribery, supplemental convention as to extradition for, 321.
citizens of claiming land in Texas, 265.
842 INDEX.
[References are to Sections.]
Mexico, claim of for hanging Mexican in California, 543.
consul of, appealing in extradition proceedings, 355.
crossing of frontier, 71.
extradition for embezzlement of public moneys, 317.
extradition treaty, when took effect, 321.
forgery, under extradition treaty with, 316.
foreigner acquiring real estate becomes a citizen of, 326.
international copyright, benefit of extended to, 72.
judgments rendered in, effect of in United States, 442.
law of relative to extradition, 303.
lynching of shepherds in Texas, 473.
provisional arrest, in extradition proceedings, 349.
refusal of United States to deliver citizens to under extradition treaty,
325.
regulations of department of state as to extradition from, Appendix,
page 589.
Eio Grande, effect of treaty on dam in, 297.
statute of, discriminating against citizens holding real estate in conflict
with treaty, 580.
treaties in force, Appendix, pages 707-719.
United States cannot ask surrender of fugitive from in absence of
treaty, 303.
willing to deliver its citizens under extradition treaty on promise of
reciprocity, 326.
Michigan, laws of overcome by treaty, 255.
valid titles only protected by treaty, 255.
Military Service, exemption from as a matter of comity, 463.
foreign residents, 462.
service in temporary civic guard, 462.
Militia, city not relieved from damages in mob violence by presence of,
554.
consuls, exemption of, 404.
Mining, license of aliens for mining, 239.
Mining Claim, right of alien to hold title to, 221.
Ministers. See Ambassadors; Consuls.
Mob Violence, American demands on China for, 516.
appropriation for killing of Italians in Colorado, 533.
appropriation for Italians lynched at Hahnville, 538.
appropriation for wounding British subject at New Orleans, 542.
appropriation for hanging of Mexican in California, 543.
arrest of McLeod, 505.
boycott, responsibility of government for, 544.
California, hanging of Mexican in, 543.
Chile, irregular prosecution of an American citizen in, 489.
Chinese, attacks on at Denver, 511-513.
Chinese, attacks on at Bock Springs, 514-523.
INDEX. 843
[References are to Sections.]
Mob Violence, claims made for redress by United States, 480.
Colombia, responsibility for in Montijo controversy, 491.
common purpose of crowd, 554.
constitutionality of statutes imposing liability on municipal corpora-
tions, 552.
consul's property injured through negligence of government, 473.
contention of Italian ambassador, 534.
courts open for redress, 489.
damages for interruption of business, 554.
Department of State not a court of error, 495.
distinction between rights of consul and resident foreigners, 501.
destruction of French privateers at Savannah, 497.
employees leaving property for fear of mob, 554.
evidence that party could not reach street, 550.
federal statute authorizing habeas corpus in certain cases, 510.
gambling-house keeper, 554.
grounds for national interference, 488.
Italians voting as a bar to recovery, 537.
injuries to Chinese, 524.
inviolability of territory of independent states, 509.
killing of Italian subjects in Colorado in 1895, 531.
Louisiana, statute of, does not render city liable for death caused by,
530.
lynching of Italians, 534, 540.
lynching of Mexican shepherds in Texas, 473.
Mafia riots at New Orleans, 526-530.
Montijo controversy, 490-494.
New Orleans and Key West riots, 500.
not negligence to employ foreigners not speaking English, 548.
notice of threatened to be given to authorities, 549.
official interference limited to tortious acts, 481.
participation by owner bars recovery, 548.
recommendation of President, for punishment of violation of treaty
rights, 474-479.
reputation of deceased in mitigation of damages, 547.
responsibility of municipal corporations for, 545-554.
rules of Department of State, 482.
Shipley's case, 487.
steamer ' ' Caroline, ' ' 505.
territory, case of, 515.
treaty to indemnify Chinese for attacks, 524.
views of Senator Edmunds, 523.
Wheelock's case, 483.
William Wilson's case, 485.
wounding of British subject at New Orleans, 541.
Zambrano's case, 486.
844 INDEX.
/
[References are to Sections.]
Modus Vivendi, power of President to make, 70.
Money, appropriation of pursuant to treaty, 81.
legislative sanction, foreign governments presumed to know, 85.
moral obligation on Congress to appropriate, when required by treaty,
82.
payment of preliminary installment, 61.
Mongolians. See Chinese.
license on for mining, 240.
Monopoly, not created by state pilotage laws, 204.
patented by Spain protected by treaty, 117.
Monroe, President, proclamation of as to removal of discriminatory duties,
77.
Montana, attacks on Chinese in, 524.
boycott of Chinese and Japanese in, 544.
enabling act conferred jurisdiction over crimes by Indians, 171.
"Montijo," Steamer, controversy over, 490-494.
Morocco, treaties in force, Appendix, page 719.
Morris, Robert, instructions signed by relative to entering into treaties, 8.
Mortgage, acknowledgment of by deputy consul general, 458.
title of alien protected by treaty, 236.
Most Favored Nation Clause, construction of, 131.
does not extend to pilotage laws as to coast vessels, 131.
extradition does not extend to, 131.
right of administration conferred by, 131.
what not granted by, 131.
Movable. See Words and Phrases; Things Movable.
Municipal Corporations. See Ordinances of Municipal Corporations.
claims against for mob violence should be established with reasonable
certainty, 553.
common purpose of crowd in mob violence, 554.
constitutionality of statutes, imposing liability for mob violence, 552.
damages for interruption of business by mob violence, 554.
employees leaving property, no defense in actions against for mob
violence, 554.
gambling-house keeper not entitled to in mob violence when dispute
arises over gambling transaction, 554.
inability to suppress riot no bar to damages, 553.
liability for mob violence imposed by statute, 546.
liberal construction of statutes imposing liability on for mob violence,
553.
militia does not in cases of mob violence relieve damages against, 554.
not liable at common law for damages by mobs, 545.
not negligence to employ foreigners not speaking English, 548.
not relieved from liability in mob violence because tried to prevent,
554.
INDEX. , 845
[References are to Sections.]
Municipal Corporations, notice to be given of threatened mob violence,
549.
owner of property not required to maintain police force, 548.
participation by owner in mob violence bars recovery, 548.
party participating in riot, 546.
receiving checks for money due to, as extraditable offense, 317.
reputation of deceased in actions against for mob violence, 547.
statute of Louisiana does not render city liable for death caused by
mob violence, 530.
sufficient time to give notice of threatened mob violence, 551.
verbal notice of threatened mob violence, 549.
Murder, committed on high seas, on board British war vessel, extraditable,
318.
interpretation of accruing law of both countries, 320.
treaty denning, 319.
Muscat, treaties in force, Appendix, page 721.
Mutual Consent, termination of treaty by, 95.
Nassau, treaties in force, Appendix, page 722.
Native-born Citizen, aliens taking from, 258.
Naturalization, allegiance, American doctrine, 461.
allegiance perpetual, 460.
child born within the United States of alien parents, 471.
citizens in ceded territory, 295, 466.
collective by admission of state, 469.
naturalized citizens entitled to same protection as native born, 461.
no retroactive effect of, 569.
order admitting to citizenship has effect of judgment, 467.
setting aside certificate of citizenship, 468.
treaties of, 464, 465.
Navigable Waters, treaty applying to Porto Eico, 86.
bridge, when not a nuisance, 174.
power of state over, 172.
Neat Cattle, importation of prohibited, 79.
Nebraska, boundary line with South Dakota, 45.
constitution of superseded by treaty with France, 236.
Negligence, city not liable for death caused by, in absence of statute, 530.
property of foreign consul injured through government's, 473.
suits for death of Italians in Mafia riots, 530.
Netherlands, bribery, an extraditable offense, 368.
"effects," meaning in treaty with, 260.
international copyright, benefit of extended to, 72.
treaties in force, Appendix, page 722.
Neutrality, ambulances and hospitals, Appendix, page 775.
846 INDEX.
[References are to Sections.]
Neutrality Laws, claims for breach of not presented by government, 568.
New Granada, treaties in force, Appendix, page 636.
New Mexico, rights retained after cession, 273.
statutes as to public lands in, 293.
New Orleans, Mafia riots, 526-530.
mob riots in 1851, 500.
wounding of British subject at, 541.
New York, aliens have same rights as resident heirs, 259.
Declaration of Independence, immigration after, 256.
interest allowed to state for money borrowed from canal fund, 580.
limitation on time to sell, 257.
Kevolution did not forfeit vested rights, 256.
title, existence of at time of treaty, 258.
Nicaragua, protocol as to interoceanic canal, 71.
suspension of tariff act as to, 73, note.
treaties in force, Appendix, page 726.
Nonintercourse Act, modified by treaty with Indians, 171.
renewal of trade, 75.
North Carolina, confiscation acts of, annulled by treaty, 261.
grant under as basis of claim, 264.
interest not payable on bonds of, 579.
laws of overcome by treaty, 260.
North German Confederation, treaty of naturalization with, 464.
North German Union, treaties in force, Appendix, page 727.
Norway, international copyright, benefit of extended to, 72.
treaty of naturalization with, 464.
treaties in force, Appendix, page 727.
Notice, sufficient time to give in cases of mob violence, 551.
termination of treaties by, 98.
threatened mob violence, 549.
verbal, of threatened mob violence, 549.
Nuisance, bridge over navigable stream when not, 174.
Occupancy, Indian's title only, 383.
Office Found. See Aliens.
Kentucky, title vests in state without, 251.
necessary to devest alien of title, 221.
Officer, in extradition, not liable for expenses, 364.
Official Documents, convention for exchange of, Appendix, page 780.
Oklahoma, act creating superior to treaty exempting Indian lands, 171.
taxation of cattle in, 171.
Oldenburg, incorporated in North German Union, Appendix, page 728.
Operation, when treaties go into. See Effect.
Orange Free State, treaties in force, Appendix, page 728.
INDEX. 847
[References are to Sections.]
Ordinance of Secession a nullity, 31.
Ordinances of Municipal Corporation prohibiting laundries and washhouses,
213.
unequal administration of ordinance, 213.
Oregon, bridge over Willamette river, 174.
statute prohibiting employment of aliens in public works, 201.
Ottoman Empire, treaties in force, Appendix, page 729.
Panama, treaties in force, Appendix, page 730.
Panama Canal Zone, suit to prevent payment of money for, 144.
Paraguay, treaties in force, Appendix, page 732.
Parana River, treaty for free navigation of, Appendix, page 611.
Paris, treaty of, as to citizens of Porto Eico, 295.
Partition, alien friend may maintain, 228.
Passport, of consul as evidence, 401.
Patent, devesting title of United States to Indian lands, 381.
Mexican grant, collateral attack not permitted, 285.
protected under treaties of cession, 279.
surrender by United States of all land described therein, 292.
Paupers, power of state to exclude, 190.
Pennsylvania, laws of, overcome by treaty, 262.
Persia, treaties in force, Appendix, page 733.
Personal Property, alien has power to take, 229.
Persons. See Aliens; Citizens.
embraced by term "citizens," 324.
Peru, treaties in force, Appendix, page 733.
Philippine Islands, copyright in, protected by treaty, 279.
patents in, protected by treaty, 279.
resolution of Senate as to treaty with, 69.
treaty for cession of, Appendix, page 757.
Phrases and Words. See Words and Phrases.
Pilcomayo Mutineers, surrender of, 332.
Pilotage Laws, exemption of American coast vessels, 131.
monopoly not created by, 204.
treaty does not supersede, 204.
Pinkney, William, comments of, on treaty power, 137.
Piracy, extradition treaties, within meaning of, 330.
Pleading, Bowman Act, 585, 586.
cause of action depending on treaty to be stated, 114.
court of claims, 583, 584.
definite issue as to claim of right, 113.
detention of person on charge other than that for which he was ex-
tradited, 337.
848 INDEX.
[References are to Sections.]
Pleading, in extradition, no plea to be received except legal one, 359.
incapacity of alien to be raised by plea in abatement, 228.
irregularities in extradition, 311.
Tucker Act, 587-590.
Poisoning, administered in United States, death in Canada, extradition on
charge of, 310.
treaty with Salvador defining, 319.
Poles subjects of Prussia, 263.
Police, owner of property not required to maintain, to avert mobs, 548.
Police Power, prevention of intrusion on Indian lands, 216.
state may exclude dangerous foreigners, 190.
state supreme in, 213.
Political Offense, attempt against life of President, 334.
Belgium, treaty with, affecting, 334.
Brazil, treaty with as to attempt to take life of President, 334.
committing magistrate to determine whether offense is, 328.
definition of, 335.
Denmark, treaty with affecting, 334.
extradition not granted for, 328.
final decision as to what is, rests with government in which fugitive
has found refuge, 329.
Luxemburg, treaty with affecting, 334.
Pilcomayo mutineers, 332.
Kussia, treaty with, affecting, 334.
raid at San Ignacio, 331.
Political Question, power to make treaties, 93.
Population, views of not consulted in acquisition of territory, 270.
Portland, shipping commissioner of, requiring proof in cases of dissenting
seamen, 367.
Porto Kico, as foreign territory, 84.
ceasing to remain foreign territory, 185.
duties on products of, suspended, 80.
governor of, may issue requisition for fugitive criminal, 342.
inhabitants of as citizens, 295.
status of inhabitants of left to Congress, 294.
treaty applying to navigable waters of, 86.
Portugal, commercial agreements with, 73, note.
international copyright, benefit of, extended to, 72.
protocol for settlement of claims for destruction of railroad, 567.
seizure of railroad constructed by American citizens, 567.
treaties in force, Appendix, page 737.
Possession, abandonment of by Indians, 382.
purchaser from Indians acquires only, 382.
Possessory Rights, not protected by treaties, 255.
Postal Conventions concluded with certain countries, 72.
Postal Service, letter carriers suing in court of claims, 588.
INDEX. 849
[References are to Sections.]
Pratt, Calvin, Japan surrendering in absence of treaty, 304.
Pre-existing Treaties, included in constitution, 164.
President, attempt against life of, as a political offense, 334.
See Messages.
certificate of criminality before ordering extradition, 358.
Cleveland, message of, on killing of Italians in Colorado, 531.
counsel may be employed by, in suit against marshals in extradition
proceedings, 357.
executive agreements, 70.
objections to lodging power to make treaties with, 57.
power to make treaties, 54.
protocols within executive authority, 71.
ratification, may withhold treaty from, 64.
surrendering fugitive on charge different from that on which he was
extradited, 358.
surrender of fugitive refused, if evidence deemed insufficient, 357.
tariff act, suspension of, by, 73-80.
tariff acts, suspension of, by, 73.
President Arthur, proclamation of as to products of Cuba and Porto Eico,
80.
President Madison, proclamation by, as to action of France, 75.
President Monroe, proclamation of, concerning removal of discriminatory
duties, 77.
President Pierce, proclamation of as to action of Newfoundland, 78.
President Washington, declination to give facts as to Jay's treaty, 81.
special message of, on making treaties, 60.
suggestion of, as to oral communications in making treaties, 62.
Princess of Orange, jewels of, restored to, taken in extradition proceedings,
363.
Prior Charge, extradited prisoner cannot be arrested on prior judgment of
conviction, 340.
Proclamations. See Messages.
Prohibitions on States to Make Treaties. See Compacts Between States.
Confederacy an organized treason, 29.
Confederate states had no legal existence, 24.
contracts to aid the confederacy void, 30. «
executor, investing in Confederate bonds, discharge of, 28.
extradition, states cannot negotiate for, 36.
extradition, treaties now govern, 38.
investment by guardian in Confederate bonds, 29.
laws in aid of insurrection void, 33.
ordinance of secession a nullity, 31.
prohibitory clauses of Constitution, 22.
sale of property of loyal owners by Confederate states, 32.
surrender of treaty power to general government, 26.
Treaties — 54
850 INDEX.
[References are to Sections.]
Property, definition of, 276.
every species of title included by, 278.
includes right to labor, 200.
restoration of, in extradition proceedings, 363.
trademarks, included in term, 279.
Protocol, China, by allied powers, 71.
construction of interoceanic canal, Appendix, page 639.
construing provisions as to submarine cables, 68.
judicial procedure, concerning, 70.
interoceanic canal, 71.
Mexico, troops crossing frontier of, 71.
power of President to make, 70.
Provisional Arrest, extradition proceedings, treaty with Mexico, 349.
Provisional Detention. See Extradition.
of fugitives from justice, Appendix, pages 581-584.
Proviso, adopted by Senate, 66.
when directory, 65.
Prussia, alien taking from native-born citizen, 258.
embezzlement of public moneys under treaty with, 317.
Poles are subjects of, 263.
South Carolina, laws of, subject to, 263.
treaties in force, Appendix, page 738.
Waldeck, citizens affected by treaty with, 250.
Public Moneys, cashier of government savings bank embezzling funds, 317.
extradition for embezzlement of, 317.
false certification of invoices, 317.
recovering checks for money due to municipality, 317.
Public Policy, claims based on acts against will not be presented, 566.
courts, on ground of, may refuse to subject fund in state to payment
of debt due foreign corporation, 161.
Public Schools, colored children in separate schools, 160.
debate in United States as to Japanese children, 149, and note.
Japan, treaty with as affecting, 145, 146.
resolution excluding Japanese children from, 148.
right to attend based on treaty, 145-159.
suits by government in behalf of Japanese children, 159.
views of William Draper Lewis, 151-153.
views of Secretary Eoot, 155-157.
Public Works, employment of aliens on, 201.
Pueblo Indians, title of not defeated by change of sovereignty, 277.
Purchase, includes acquisition by devise, 223.
Purchaser from Indians acquires only right of possession, 382.
INDEX. 851
[References are to Sections.]
Railroad, claim of American citizens for destruction of by Portugal, 567.
Randolph, Governor, resolutions offered by in constitutional conven-
tion, 163.
Ratification, authority of person ratifying cannot be questioned, 128.
by Senate, 62.
exchange of has retroactive operation, 86.
President may withhold treaty from, 64.
treaty inchoate until ratified, 61.
treaty relates back to signature, 61.
treaty affecting individual rights does not take effect until, 91.
Rayner, Senator, resolution affecting Japanese attending public schools, 149.
Real Estate. See Aliens; Inheritance, etc.
Real Property, Mexican statute discriminating against citizens in conflict
with treaty, 581.
questions involving controlled by laws of state where situated, 580.
Receiver, claiming fund before court of claims, 584.
Reciprocal Agreements, suspension of tariff act, 73.
Reciprocal Concessions may be made, 169.
Reciprocity, extradition of Kratz for bribery, 321.
in foreign judgments, 435.
Reclamation Assessment, suits against consul for, 413.
Rents, alien heir enjoying, 259.
Repeal of Treaties, by acts admitting states, 170, 171.
by implication not favored, 178.
by subsequent act of Congress of, 167.
subject matter covered by another treaty, 99.
Replevin, logs not cut for improvement may be recovered by United States
by, 380.
Repugnant Clauses, rules for construction of, 126.
Requisition, application for in extradition proceedings, 342.
in extradition, regulations of State Department concerning, 369.
in extradition, two charges in two different states, 358.
must come from supreme political authority of state, 342.
Reservations of Indians, lands of taxed, 170.
Indian may be indicted for murder committed outside of, 216.
Residence, foreign corporations seeking to have fund sent to foreign country
for administration, 161.
foreign heirs may inherit, 250.
Residing in the State, words construed in statute, 243.
Resignation of political agent of foreign government as bar to certiorari,
400.
Restoration, property in extradition proceedings, 363.
Retroactive Effect of treaties, 92.
852 INDEX.
[References are to Sections.]
Retroactive Laws, statutes removing disability of alienage not, 227.
Retrospective Operation, Chinese exclusion acts not to have, 189.
of treaties to be avoided, 177.
Revolution, vested rights not forfeited by, 256.
Riparian Rights, lot owners buying in accordance with acts of Congress,
277.
Rio Grande, dam in, 297.
Riots. See Mob Violence; Municipal Corporations.
inability to suppress no bar to damages, 553.
party participating in cannot recover damages from city, 546.
reputation of deceased in actions against cities, 547.
responsibility of municipal corporations for, 545-554.
Rock Springs, attack on Chinese at, 514-523.
Roosevelt, President, recommendation of, for violation of treaty rights, 478,
479.
Root, Secretary, views of as to public schools, 155-157.
Roumania, treaties in force, Appendix, page 741.
Russia, attempt against life of head of government not a political offense,
334.
consul, administering on estates, 202.
treaty authorizing arrest of deserters, 117.
treaties in force, Appendix, page 742.
Sale, interest of heir in Virginia, 232.
time to sell under treaty with Wurttemberg, 247.
Salvador, extradition proceedings as to refugees from, 310.
killing of person by President of, not extraditable offense, 319.
murder in treaty with, defined, 319.
suspension of tariff act as to, 73, note.
treaties in force, Appendix, page 745.
Samoan Islands, acts providing for neutrality of, Appendix, page 747.
Germany's operations in, 272.
San Francisco, case of Dillon, French consul, 416.
Japanese children attending public schools, 145.
shipping commissioner of, requiring proof in case of deserting seamen,
367.
San Ignacio, raid at, 331.
Sardinia, treaties in force, Appendix, page 749.
Savannah, destruction of French privateers at by mob violence, 497.
Saxony, treaties in force, Appendix, page 749.
Schaumburg-Lippe, treaties in force, Appendix, page 749.
Schools. See Public Schools; Separate Schools.
Scotland, natives of, prior to Revolution, prima facie, not aliens, 264.
INDEX. 853
[References are to Sections.]
Seal, consul, judicial notice of, 457.
Seals, modus vivendi, as to, 70.
Seamen, American, not bound by treaty provisions, 453.
certificate of American consul of desertion by in suit for wages, 454.
consuls, jurisdiction of, over, 212.
consul, powers of, relating to, 453.
deserting, surrender of in absence of treaty, 367.
deserting from ships of war, Russian treaty, 117.
discharge of by consul not conclusive, 454.
federal courts have jurisdiction in case of malicious assault by cap-
tain on, 448.
Secession, confederacy an organized treason, 29.
laws in aid of void, 33.
loyal owners, sale of property of, 32.
ordinance of, a nullity, 31.
Secret Correspondence, committee on, under Continental Congress, 8.
Self -executing Treaties, appropriation of money, 185.
enforced by courts, 185.
legislation to make effective, 185.
Senate, amendments to treaties by, 63, 64.
debate in on Japanese children attending public schools, 148.
proviso adopted by, 66.
ratification of treaties by, 62.
rejection of treaties by, 63.
resolution controlling meaning of treaty, 69.
Separate Schools, controversy as to Japanese children, 145-159.
colored children may be sent to, 160.
for colored children, must have equal facilities, 161.
Servant, ambassador's, exempt from laws, 399.
Servia, treaties in force, Appendix, page 750.
Shipley, Dr., claim of for mob violence, 487.
Shipping, consuls' powers relative to, 453.
Shipping Commissioners, deserting seamen, requiring proof in cases of, 367.
Siam, treaties in force, Appendix, page 751.
Sicily, treaties relating to, Appendix, page 768.
Sick Persons, adding to prevalence of disease prevented from entering
state, 206.
power of state to exclude, 190.
Signature, consul, judicial knowledge of, 457.
treaty takes effect from date of, 86.
treaty, when ratified relates back to, 61.
Simoneski Indemnities, treaty for payment of, Appendix, page 699.
Sixth Amendment protects aliens, 196.
Slave Trade, amendment to treaty concerning, 64.
treaty for repression of, Appendix, page 781.
Slaves, treaty with Great Britain referring to, Appendix, page 668.
854 INDEX.
[References are to Sections.]
South African Republic, extradition from when allowed, 310.
South American Republics, resort to courts of for collection of claims, 574.
South Carolina, dispensary act not violative of treaty, 209.
laws of, overcome by treaty, 263.
South Dakota, boundary line with Nebraska, 45.
Sovereignty, passes by treaty of cession, 269.
transferred at date of treaty, 87.
Spain, cession of Porto Eico, ceasing to be foreign territory, 185.
concessions from, confirmed by Congress, 277.
copyrights respected by treaty with, 279.
Florida, as to lands in, 65.
grant from overcoming act of Congress, 277.
international copyright, benefit of extended to, 72.
monopoly patented by law of protected by treaty, 117.
patents, protected by treaty with, 279.
power to make grants on any consideration, 278.
Senate, resolution controlling meaning of treaty with, 69.
suspension of tariff act as to, 73, note.
treaty with applies to navigable waters of Porto Rico, 86.
treaties in force, Appendix, pages 753-763.
Tweed, delivery of as a matter of comity, 300.
United States successor to, as to titles in Louisiana, 283.
Special Arrangements, not prohibited by general clauses in treaty, 169.
State Constitutions, labor of aliens for corporations, 200, 201.
treaty in conflict with provisions of Nebraska constitution, 236.
State Department, not a court of error, 495.
rules of as to presentation of claims for mob violence, 482.
States. See Constitutions; Compacts Between States; Confederate States;
Prohibition on States.
act admitting as affecting treaty, 170.
act admitting affecting right to tax Indian lands, 170.
aliens cannot enjoin attorney general of from collecting taxes, 559.
compacts between, construed, 46.
consuls may, by permission of Congress, be sued in courts of, 411.
contract of to exempt property from taxation, 51.
in extradition, two charges by two different states, 358.
in extradition, expenses to be paid by, 364.
in extradition, payment of expenses by county, 366.
internal police, right to regulate, 170.
may refuse to subject fund to attachment for payment of debt to
foreign corporation, 161.
no remedy against for breach of contract, 559.
pilotage laws of not superseded by treaty, 204.
police power, excluding dangerous foreigners, 190.
power over navigable waters, 172.
refusal to observe treaty with Great Britain, 10.
INDEX. ( 855
[References are to Sections.]
States, regulating inheritance of property, 241.
suing other state as assignee of bonds, 573.
suit by, against other states, 559.
treaties, prohibited from making, 22-38.
Statutes. See Acts of Congress; Construction.
alienage, removing disability of not retroactive, 227.
attainder, treaty overcoming, 262.
authorizing governor in his discretion to deliver fugitives, unconsti-
tutional, 308.
bridge, authorizing building of, 174.
dispensary act of South Carolina not violative of treaty, 209.
escheat, law passed while proceedings pending constitutional, 225.
escheat, legislation when required, 225.
exempting foreign citizens from succession tax, 210.
imposing liability on municipal corporations for mobs, 546.
in absence of, city not liable for failure to protect life, 530.
liberal construction of, imposing liability on municipal corporations for
mob violence, 555
license on foreign miners, 239, 240.
prohibiting employment of aliens on public works, 201.
prohibiting persons adding to prevalence of disease entering state,
206.
property to one heir violating treaty, 256.
relating to escheat, method must be followed, 223.
repeal of by implication, 184.
Statutes of Limitation, claims before court of claims, 584.
Stockholders, aliens may become in corporations, 229.
Subjects, foreign corporations are not, 296.
Submarine Cables, protection of, Appendix, page 779.
protocol construing convention as to, 68.
Subpoena, American consuls as witnesses, 427-429.
consuls, in behalf of prosecution, 422.
consul as witness before state court, 425.
Succession Tax, treaty exempting foreigner from payment of, 210.
Sugar, Hawaiian Islands, admitted free of duty, 169.
Suits, against consuls, 411.
by relatives of Italians killed in Mafia riots, 530.
Sulu, agreement acknowledging sovereignty of United States, 72.
Supreme Law of Land, treaties are, 162, 163.
Surratt, John H., surrender of, for complicit}' in assassination of President
Lincoln, 334.
Surrender. See Extradition.
of fugitive, an executive function, 357.
of fugitive, upon different charge, 358.
Survey, Mexican grant unassailable until made, 282.
necessary when to specify grant, 285.
856 INDEX.
[References are to Sections.]
Suspension of Acts of Congress by the President, 73-80.
Sweden, "biens," construction of, 246.
" goods " not including " lands" in treaty with, 249.
treaties in force, Appendix, pages 759-762.
treaty of naturalization with, 464.
Swiss Confederation, disposition of property by treaty, 231.
treaty with paramount to state law, 252.
Switzerland, citizens of delivered under extradition treaties, 325.
international copyright, benefit of extended to, 72.
treaties in force, Appendix, page 763.
Tariff Acts, Cuba and Porto Eico, suspending duties, 80.
Porto Rico, foreign territory, 84.
sugar, admission of from Hawaiian Islands, 169.
suspension of by President, 73-80.
Tariff Laws, effect of upon treaty stipulations, 169.
Taxation, contract of state to exempt property from, 51, 52.
Indian lands, 387.
license of aliens for mining, 239.
Taxes, aliens cannot enjoin attorney general of a state from collecting,
559.
internal revenue taxes paid without protest, interest not allowed on,
580.
treaty devesting state of right to tax, 210.
upon Indian reservations when void, 170.
Tehuantepec, transit of isthmus of, Appendix, page 710.
Telegrams, arrest of fugitives from justice on, 348.
Tennessee, boundary line with Virginia established, 41, 127.
laws of subject to treaty, 264.
Termination of Treaties by notice, 98.
by subsequent treaty covering subject matter, 99.
how affected, 95.
renewal by tacit consent, 96.
violation by one of the parties, 96, 97.
Territory. See Acquisition of Territory.
in extradition, expenses to be paid by, 364.
Texas, aliens holding real estate, 221.
cession of did not devest titles, 273.
laws of subject to treaty, 264.
treaties relating to, Appendix, page 765.
Things Movable. See Words and Phrases.
effects include, 260.
Third Person, title in under treaty, 106.
INDEX. , 857
\
[References are to Sections.]
Tide Lands, title to, 274.
Timber, cutting by Indians, 380.
Title. See Aliens; Curtesy; Descent; Inheritance; Treaties.
arising under treaty may be decided by federal courts, 100.
cession, treaties of do not devest, 273.
existence of at time of treaty, 258.
of Indians but a right of occupancy, 383.
Tolls, property of the state as soon as collected, 317.
Tonga, treaties in force, Appendix, page 765.
Trademarks, loss of, by laches, 280.
" property" includes, 279.
protected under treaty of cession, 279.
public property in county of its origin, 205.
protected by treaty, 205.
Transit across United States in extradition, 362.
Transitory Actions, aliens suing in court, 219.
Translation, in extradition, payment for expenses of, 366.
Treason, attainder for, 262.
Treaties, abrogation must clearly appear, 182.
acts of admission affecting navigable waters, 172.
adoption of constitution enabled enforcement of, 14.
arrest on prior conviction, 179-181.
articles of confederation under, 6.
attainder, statute of, overcome by treaty, 262.
authority of courts, 93.
bridges across rivers, 174.
cession, 267-297.
China, no reciprocity in treatment of citizens, 520.
Chinese exclusion acts, 186-193.
chronological list of, Appendix, page 791.
committee of Continental Congress to prepare plans of, 4.
compacts are, 1.
confiscation acts annulled by, 261.
consuls, jurisdiction of by, 447.
construction of, 115-161.
construction of, province of courts, 94.
construction, absurd conclusion to be avoided, 177.
Continental Congress, under, 8.
Continental Congress unable to guarantee observance of obligations
of, 9.
Continental Congress proposing treaty to France, 8.
contract for services to set aside, cannot be recognized as a basis of a
claim, 566.
contract as well as law, 115, 168.
Delaware, paramount to statute, 242.
disability of aliens to inherit removed by, 230.
858 INDEX.
[References are to Sectionk.]
Treaties, doubtful construction extension by, 181.
equivalent to an act of Congress, 167.
existing before adoption of constitution, 164.
extradition, 298-369.
federal question arising under, 100-114.
France, power of consuls as to shipping and seamen, 453.
Guadalupe Hidalgo, statute of Texas as in conflict with, 265.
if consul has exclusive jurisdiction under, constable arresting liable
for false imprisonment, 448.
indemnity for attacks on Chinese, 524.
Iowa, superseding statutes in, 248.
judgments of condemnation annulled by, 234.
jurisdiction of admiralty courts as to American seamen not taken away
by, 455.
legislative action dependent on, 85.
making of, 54-85.
Maryland, laws of, overcome by treaty, 253.
Michigan laws of overcome by, 255.
mining, license for privilege of, 239.
mortgagee alien, title of protected by, 236.
naturalization, 464, 465.
New York, laws of overcome by, 256.
North Carolina, laws of, overcome by, 260.
nullifying laws sequestering property, 261.
peace with Great Britain, 12.
overruling act of Congress with, 176.
Porto Eico, status of inhabitants of left to Congress, 294.
postponement of operation of 'until approval of Congress, 88.
Prussia, treaty with affects citizens of Waldeck, 250.
repeal by implication, 178.
retroactive effect, 92.
self-executing, 185.
South Carolina, laws of subject to, 263.
sovereignty transferred at date, 87.
states prohibited from making, 22-38.
supreme law of land, 162.
surrender of deserting seamen in absence of, 367.
Swiss Confederation, provision relative to disposition of property, 231.
tariff laws, 169.
Tennessee, laws of subject to, 264.
Texas, laws of subject to, 265.
time when takes effect, 86.
title of heir once vested, not devested, 234.
two constructions, which preferred, 231.
violation of by one nation, 97.
Virginia, laws of subject to treaty, 266.
INDEX. ( 859
[References are to Sections.]
Treaties, Waldeck, citizens of affected by treaty with Prussia, 250.
want of judicial power to enforce under Continental Congress, 11.
with France affecting escheat, 235, 236.
with Great Britain affecting escheat, 236.
with Italy, involved in suits for damages in Mafia riots, 530.
Treaties in Force, Algiers, Appendix, page 610.
Argentine Eepublic, Appendix, page 611.
Austria-Hungary, Appendix, page 610.
Baden, Appendix, page 615.
Bavaria, Appendix, page 616.
Belgium, Appendix, page 617.
Bolivia, Appendix, page 623.
Borneo, Appendix, page 624.
Brazil, Appendix, page 624.
Bremen, Appendix, page 626.
Brunswick, Appendix, page 626.
Central America, Appendix, page 627.
Chile, Appendix, page 627.
China, Appendix, pages 629-635.
Colombia, Appendix, page 637.
Corea, Appendix, page 703.
Costa Eica, Appendix, page 638.
Cuba, Appendix, page 640.
Denmark, Appendix, page 643.
Dominican Eepublic, Appendix, page 647.
Ecuador, Appendix, page 647.
Egypt, Appendix, page 649.
Ethiopia, Appendix, page 649.
France, Appendix, pages 650-659.
German Empire, Appendix, pages 659, 660.
Great Britain, Appendix, pages 661-684.
Greece, Appendix, page 683.
Guatemala, Appendix, page 684.
Hayti, Appendix, page 686.
Hawaiian Islands, Appendix, page 690.
Hanover, Appendix, page 688.
Hanseatic Eepublics, Appendix, page 689.
Hesse, Appendix, page 692.
Italy, Appendix, page 693.
Japan, Appendix, pages 697-703.
Kongo, Appendix, page 702.
Lew Chew, Appendix, page 704.
Liberia, Appendix, page 704.
Liineburg, Appendix, page 626.
Luxemburg, Appendix, page 704.
Madagascar, Appendix, page 705.
860 INDEX.
[References are to Sections.]
Treaties in Force, Mecklenburg- Schwerin, Appendix, page 706.
Mecklenburg-Strelitz, Appendix, page 706.
Mexico, Appendix, pages 707-719.
Morocco, Appendix, page 719.
Muscat, Appendix, page 721.
Nassau, Appendix, page 722.
Netherlands, Appendix, page 722.
New Granada, Appendix, page 636.
Nicaragua, Appendix, page 726.
North German Union, Appendix, page 727.
Norway, Appendix, page 727.
Oldenburg, Appendix, page 728.
Orange Free State, Appendix, page 728.
Ottoman Empire, Appendix, page 729.
Panama, Appendix, page 730.
Paraguay, Appendix, page 732.
Persia, Appendix, page 733.
Peru, Appendix, page 733.
Portugal, Appendix, page 737.
Prussia, Appendix, page 738.
Eoumania, Appendix, page 741.
Eussia, Appendix, page 742.
Salvador, Appendix, page 745.
Samoan Islands, Appendix, page 747.
Sardinia, Appendix, page 749.
Saxony, Appendix, page 749.
Schaumburg-Lippe, Appendix, page 749.
Servia, Appendix, page 750.
Siam, Appendix, page 751.
Spain, Appendix, pages 753-763.
Sweden, Appendix, pages 759-762.
Switzerland, Appendix, page 763.
Tongo, Appendix, page 765.
Tripoli, Appendix, page 766.
Tunis, Appendix, page 659.
Two Sicilies, Appendix, page 768.
Venzuela, Appendix, page 770.
Wurttemberg, Appendix, page 772.
Zanzibar, Appendix, page 773.
Treaties with Indians. See Indians.
Indian nation not a foreign nation, 384.
legislation may control, 391.
liberal construction of, 390.
policy of the United States, 387.
power to make, 370.
prior to legislation, 376.
INDEX. 861
[References are to Sections.]
Treaties with Indians, right of occupation, 379.
technical meaning of not to be considered, 392.
tribe not a sovereign nation, 393.
Treaty Clauses of the Constitution, judicial power extends to treaties, 1.
power to make treaties, 1.
states prohibited from making treaties, 1.
treaties the supreme law of the land, 1.
Treaty-making Power, Butler's views, 142.
Calhoun's views, 138.
Justice Clifford's views, 139.
Cooley's views, 136.
difference between and legislative powers, 138.
distribution of governmental powers, 158.
England and United States, difference in, 58.
extends to all proper subjects of negotiation, 140.
extent of, 133-161.
implied limitations upon, 156.
Kent's views, 136.
Lewis' views, 151.
Panama canal zone, 144.
Pinkney's views, 137.
position of the United States, 150.
public schools, right to attend, 145.
Eawle's views, 138.
Secretary Boot's views, 155, 157.
Senate of United States, debate in, 149.
suits by the government, 159.
Trespasses, forcible, may become subject of diplomatic intervention, 581.
Trial, offense committed during, of person extradited for another offense,
341.
Tripoli, treaties in force, Appendix, page 766.
Trust, secret conveyance to aliens on, 225.
money received from foreign governments for American citizens, 578.
Tucker Act, appeals under, 590.
claimant cannot waive tort and sue on contract, 587.
concurrent jurisdiction of district and federal courts, 588.
demand before suit, not necessary, 587.
judgments under, 590.
liberal construction of, 587.
petition for equitable relief, 587.
procedure under, 589.
provisions of, 587.
reformation of contract, 587.
treaties in relation to, Appendix, pages 659, 767.
Tweed, delivered to United States by Spain, 300, 301.
Tunstall, John H., claim of against United States, 576.
862 INDEX.
[References are to Sections.]
Under the Authority of the United States, meaning of clause, 165, 166.
Undue Influence, courts cannot inquire whether treaty made by, 93, 128.
United States, transit across territory of in case of extradition, 362.
under the authority of, meaning of clause, 165, 166.
United States Attorney, extradition proceedings need not be conducted by,
344.
Uruguay River, treaty for free navigation of, Appendix, page 611.
Utah, statutes as to public lands in, 293.
Utes, treaty with repealed by act admitting Colorado, 171.
Vagabonds, power of state to exclude, 190.
Variances, extradition on one charge, indictment for another, 338.
Venezuela, treaties in force, Appendix, page 770.
Vessel, claims for capture of, 562.
consuls cannot require masters to carry persons accused of crime, 357.
consul cannot exempt from confiscation, 449.
consul having exclusive jurisdiction over controversies concening,
448.
in service of foreign power, renounces claim to protection of the United
States, 567.
launched, a ship of war, 117.
seamen maliciously assaulted by captain of, 448.
United States not liable for unlawful captures by its subjects, 472.
Vested Remainders, included by "lands" in treaty, 254.
Vested Rights, Eevolution did not forfeit, 256.
Vested Titles, cession under treaty does not affect, 288.
Vice-consul, appointment of, 397.
included by term "consul," 458.
Vice-consul General included by term ' ' consul, ' ' 458.
Violation of Treaty, courts cannot enforce treaty violated by government,
94.
injured party alone can complain, 96.
Violence, prisoner taken, by, from one state to another, 311.
Virginia, boundary line between and Tennessee, 41, 127.
escheat proceedings in, 231.
inheritance, statute as to, 228.
law sequestering property nullified by treaty, 166.
resolution for appointment of commissioners to form constitution, 18.
time for heir to sell estate, 232.
treaty supersedes laws of, 266.
Waiver, default, against consuls, 415.
failure of consul to plead exemption, 412, 415.
Waldeck, treaty between United States and Prussia affects, 250.
War Power, acquisition of territory by, 268.
INDEX. 863
[References are to Sections.]
Warrant, in extraditions, President may refuse if evidence insufficient, 357.
of Secretary of State for surrender of fugitive subject to trial on dif-
ferent charge, 358.
Warship, arrest of fugitive on, 348.
crime committed on within jurisdiction of nation to which ship belongs,
309.
exempt from jurisdiction of local courts, 333.
foreign, escape from as affecting extradition, 302.
murder, committed on British, an extraditable offense, 333.
Washington, attacks on Chinese in, 524.
Washington, George, declination to give facts as to Jay's treaty, 81.
elected president of constitutional convention, 19.
lack of power to effectuate treaties, 9.
special message of, on making treaties, 60.
suggestion of, as to oral communications in making treaties, 62.
weakness of confederation, 6.
Weights, treaty for international bureau of, Appendix, page 776.
Wharfage, public moneys, when collected, 317.
Wheelock, John E., redress for mob violence, 483.
Widow of alien may have protection of government in presentation of
claim, 568.
Willamette River, bridge over, 174.
Wilson, William, claim of for mob violence, 483.
Wisconsin, statute for damages for death of relative, 215.
Witnesses, American consuls as, 427-429.
consuls as, 416-425.
consul possessing information received in official capacity, 433.
consuls, subpoena of in behalf of prosecution, 422.
consuls subpoenaed before a state court, 425.
court-marshal, consul as, 432.
facts within personal knowledge of consul, 431.
Woman, marrying foreigner takes nationality of her husband, 471.
Words and Phrases, "assassination," under treaty with Salvador, 319.
"biens" and "effects," 246.
"citizens" embraced by term "persons," 324.
"consul" includes consul general, vice-consul general and vice-consul,
458.
"criminal by the law of both countries," 314.
deportations, 299.
"effects," meaning of, 260.
"extradition," 299.
"falsification" in Mexican treaty, 320.
"forgery" includes crime of uttering forged papers, 319.
"forgery in the third degree," 320.
f ' forgery ' ' in English law, not including false entries in books of
account, 318.
864 INDEX.
[References are to Sections.]
Words and Phrases, " goods " not including " lands," 249.
"homicide" under treaty with Salvador, 319.
"infanticide," under treaty with Salvador, 319.
in Germany words alone do not constitute trademark, 205.
jurisdiction, convertible with term "country," 309.
"laborer" used in popular sense, 191.
"lands" not included by goods, 249.
"lands" includes vested remainders, 254.
murder under treaty with Salvador, 319.
' ' patricide ' ' under treaty with Salvador, 319.
"poisoning" under treaty with Salvador, 319.
political offense, 335.
possessory rights not covered by treaties, 255.
"property," definition of, 276.
"property" includes trademarks, 279.
"property" includes right to labor, 200.
"property" includes every species of title, 278.
"purchase" includes acquisition by devise, 223.
"or be punished," omitted from treaty of extradition, 178.
"public moneys," 317.
' ' residing in the state, > ' 243.
"supreme law of land," history of, 163.
things movable, included by word ' ' effects, ' ' 260.
transportation, 299.
treaties, agreements and compacts, 40.
"under the authority of the United States," 165, 166.
vested remainders included in word "lands," 254.
Writ of Error, courts of claims, 590.
not allowable in place of appeal to review ruling on habeas corpus, 354.
Wiirtteniberg, heirs improving property, 259.
time to sell under treaty with, 247, 257.
treaty of naturalization with, 464.
treaties in force, Appendix, page 772.
Wyoming, statutes as to public lands in, 293.
Zambrano, claim of, for mob violence, 486.
Zanzibar, treaty as to light and harbor dues, Appendix, page 681.
treaties in force, Appendix, page 773.
^
OF THE
UNIVERSITY
RETURN TO the circulation desk of any
University of California Library
or to the
RS""1]^ REGIONAL LIBRARY FACILITY
Bldg. 400, Richmond Field Station
University of California
Richmond, CA 94804-4698
ALL BOOKS MAY BE RECALLED AFTER 7
DAYS
• Renewals and recharges may be made
4 days prior to due date
fJUL 1 5 2005
DD20 15M 4-02
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Books to Borrow
Open Library
TV News
Understanding 9/11