V • _. h--^r'%^:^i^w\ t* . . '\'*,i ■■],{■ "^: ^■:i ^'^ \ %^-- ■tf^:. VV-lt HARVARD UNIVERSITY. LIBRARY OF THE MUSEUM OF COMPARATIVE ZOOLOGY CiLoL' Y^CLQyll^' Qx^cTuJ; \\. |QA/—7)]a^Q, 191.2. . AMK siBKw. • MAY 9 1922 PROCEEDINGS OF THE American Pliilosopmcaf Society HELD AT PHILADELPHIA FOR PROMOTING USEFUL KNOWLEDGE VOLUME LX 1921 PHILADELPHL\ THE AMERICAN PHILOSOPHICAL SOCIETY 1921 PRESS OF THE NEW ERA PRINTING COMPANY LANCASTER, PA. CONTENTS PAGE The Origin and Distribution of the Genera of the Fishes of South America West of the Maracaibo, Orinoco, Amazon and Titicaca Basins. By Carl H. Eigenmann i Growth in Trees. By D. T. Macdougal 7 The Action of Bases and Salts on Biocolloids and Cell-Classes. By D. T. Macdougal 15 A Natural Group of Unusual Black Oaks. By William Tre- LEASE 31 The Fixed Glacial Anticyclone Compared to the Migrating Anti- cyclone. By William Herbert Hobbs 34 Discussion of a Kinetic Theory of Gravitation, and II, Some New Experiments in Gravitation. By Charles F. Brush . . 43 Rose Atoll, American Samoa. By Alfred Goldsborough Mayor 62 Tobit's Blindness and Sara's Hysteria. By Paul Haupt 71 A New Hoplophoneus from the Titanotherium Beds. By Wil- liam J. Sinclair 96 The Control of the Foreign Relations of the United States : The Relative Rights, Duties, and Responsibilities of the President, of the Senate and the House, and of the Judiciary, in Theory and in Practice. By Quincy Wright 99 The " Turtle-Oreodon Layer " or " Red Layer," a Contriljution to the Stratigraphy of the White River Oligocene (Results of the Princeton University 1920 Expedition to South Dakota). By William J. Sinclair 456 Entelodonts from the Big Badlands of South Dakota in the Geo- logical Museum of Princeton University. By William J, Sinclair 467 iii IV CONTENTS. On Mean Relative and Absolute Parallaxes. By Keivin Burns 496 The Nature and Origin of the Fishes of the Pacific Slope of Ecuador, Peru and Chili. By Carl H. Eigenmann 503 Measurement of Star Diameters by the Interferometer Method. By F. G. Pease 524 The Peopling of Asia. By Ales Hrdlicka 535 An Electro-Chemical Theory of Normal and Certain Pathological Processes. By G. W. Crile, M.D 546 The Coudersport Ice Mine. By Edwin Swift Balch 553 Obituary Notices of Members Deceased : Joseph George Rosengarten Hi Morris Jastrow, Jr x Minutes - iii Index XXV AUG 11 '^i^RocEEDINGS OF THE American Philosophical Society HELD AT PHILADELPHIA FOR PROMOTING USEFUL KNOWLEDGE Vol. LX. 1921. No. 1. CONTENTS PAGE The Origin and Distribution of the Genera of the Fishes of South America West of the Maracaibo, Orinoco, Amazon and Titicaca Basins. By Carl H. Eigenmann --------- i Growth in Trees. By D. T. Macdougal -------- 7 The Action of Bases and Salts on BiocoUoids and Cell-Masses. By D. T. Macdougal ------------- 15 A Natural Group of Unusual Black Oaks. By William Trelease 31 The Fixed Glacial Anticyclone Compared to the Migrating Anti- cyclone. By William Herbert Hobbs ------ 34 Obituary Notices of Members Deceased : Joseph George Rosen- GARTEN ----------------- iii PHILADELPHIA THE AMERICAN PHILOSOPHICAL SOCIETY 104 South Fifth Street 1921 Members who have not as yet sent their photographs to the Society will confer a favor by so doing ; cabinet size preferred. It is requested that all correspondence be addressed To THE Secretaries of the AMERICAN PHILOSOPHICAL SOCIETY T04 South Fifth Street Philadelphia, U. S. A. AUG 11 PROCEEDINGS OF THE AMERICAN PHILOSOPHICAL SOCIETY HELD AT PHILADELPHIA FOR PROMOTING USEFUL KNOWLEDGE THE ORIGIN AND DISTRIBUTION OF THE GENERA OF THE FISHES OF SOUTH AMERICA WEST OF THE MARACAIBO, ORINOCO, AMAZON, AND TITICACA BASINS.^ By carl H. EIGENMANN. (Read March 4, 19^1.) The territory defined in the title includes Panama, Colombia, west of the Cordillera de Bogota, and the Pacific slope of Ecuador and Peru. The area is bounded on the south by the desert of Atacama, on the west by the Pacific Ocean, on the north by the Isthmus of Panama and the Caribbean Sea, on the east by high mountains, the Sierra Nevada de Santa Marta, the Cordillera de Perija, and the Cordillera of Bogota in Colombia, in small part by the Cordillera Oriental in Ecuador, and by the Cordillera Occidental in the rest of Ecuador and the whole of Peru. The largest river basin in this area is that of the Magdalena. The Magdalena, Sinu, Atrato, and Chagres drain into the Atlantic ; the Chepo, Tuyra, San Juan, Dagua, Patia, Mira, Esmeraldas, Guayas, and many short turbulent rivers south of it drain into the Pacific. The coastal portion north of central Ecuador is very wet, with a heavy annual rainfall ; the lower portion south of Guayaquil is without rain. The rivers are supplied with water from the moun- tains only. In a faunal volume recently finished, 388 species of fresh-water fishes are recognized from this area. They are referred to 108 ^ Contribution from the Zoological Laboratory of Indiana University, No. 180. PROC. AMER. PHIL. SOC, VOL. LX, A, JULY 25, I921 2 EIGENMANN— FISHES OF SOUTH AMERICA. strictly fresh-water genera.- What is the origin of this fauna? The solution to this problem is given by the distribution and relation- ship of the io8 genera. We find : 1. Sixty-five of the genera are also found east of the Andes where they are for the most part widely distributed. They are marked with the — in the second column of the table below. The ancestors of the species of these 65 genera (66 if we include Rivulus, which is in part marine) had a common origin with the species foiuid in the Atlantic slope rivers. They constitute about 60 per cent, of the total. 2. Twenty-eight of the genera are modifications of some of the above 65 or of other genera widely distributed east of the Andes. The derivation is in many cases quite evident and direct. For in- stance : XUipJiins is a modified Bunoceplialiis ; Cctopsorhamdla and Nan- norhaindia are modified Rhamdia; Ercmophilns is a modified Pyg'i- dium; Cheiridodus is a modified Plecostomus; Lebiasina is a modi- fied Piahuc'ma and a per cent, of individuals of Lebiasina still revert to Piabucina; Compsura and Pseudocheirodon are modified Cheiro- don; Orthonophancs is a modified Brycon; Argopleura, Microgenes, and Plicuacobrycon are modifications of Bryconamericus ; Landonia is a modified Astyanax; Accstrorhynchns is a modified Accstro- ccphalus; Ctcnolucinus is a modified Xiphostoma; and so on. In a number of other cases the immediate origin is not so evident : Para- stremnia and Rhoadsia form a distinct subfamily. Their young are in all technical respects members of the Cheirodontinae, from which they no doubt evolved. Gilbcrtolus is allied to the Characinxe; Genycharax to Astyanax or Charax ; Gritndulus and Phanagoniatcs are of the CJieirodontincc, Pterobrycon and Microbrycon of the Glandidicaudincu . All are marked A in the first column. They con- stitute nearly 26 per cent, of the total. Ten of the genera have either come from Central America or 2 Exclusive of the marine or brackish water genera, Pristis, Hexa- nematichthys, Sardinella, Stolcpliorus, Anchovia, Tylostirus, Mugil, Quert- mana, Agonostomits. Joturus, Centropomus, Pomadasys, Tarpon, Dormita- tor, Eleotris, Philypiius, Guavina, Gobiiis, Gohioncllns, Awaous, Gobioides, Thalassophrync, Batrachoidcs, Cithariclitliys, Achirus. EIGENMANN— FISHES OF SOUTH AMERICA. 3 are modifications of immigrants from Central America, marked x. They constitute 9.2 per cent, of the total. Five of the genera are modifications of immigrants from the ocean, marked O. They constitute 4.6 per cent of the total. There is no genus in the entire area whose derivation is in doubt. The fauna is largely a part of the general South American fauna which has been pinched off by the formation of the Andes and has gone its own way since the Andes have become high enough to form an eft'ective barrier against the ready intermigration be- tween the cisandean and transandean parts of the continent. The relation of the faunas of the different rivers in the area to each other is receiving consideration in separate papers.^ Table of the Distribution of Genera. In the column " Origin " A =: Genera which are evidently modifications of present-day Orinoco or Amazon genera. C = Genera of the Pacific slope some of which are also in the Chagres, others in the Atrato. X = Genera of Northern, Central American origin. O = Genera of brackish water origin. *:= Pacific slope genera found only in the Atrato or Chagres of the Atlantic slope drainage. The dash ( — ) indicates that the genus occurs in the particular river. The addition mark (-|-) indicates that within the area the genus is limited to the one river. Columns 4 to 7 in sequence give a line of migration, 11, 12, 13. 14, 15 give a different line, 11 being a duplicate of 4; columns 8, 9, 10 represent a fauna distinct from that in the Magdalena-Atrato-San Juan system shown in columns 3 to 7. The second column indicates the Maracaibo, Orinoco, or Amazon basins. ^ I regret to say, that so far, I have not been able to give consideration to the Santa river nor to the lower courses of the Rio Loa and to those of southern Peru. I hope that I may be able to visit these rivers in the near future. EIGENMANN— FISHES OF SOUTH AMERICA. s 0 N c C •0 c < a m a c u a S 15 0 < a ta = c n a 3 W) a Q c" rt sa .3 Oh c" 1 m '3 D* rt >< a 3 0 Oh 0 « i a. « 0 ■< n pa 2 _3 0 c V 0 "2 n 0 a _o in ? PYGIDIID.E 19. Pygidium ? ? 20. Eremophilus A + Callichthyid^ 21. Cory dor as + LORICARIID.'E 22. Plecostomus - + ? - ? - = ? " ? 23. Hemiancistrus 24. Pterygoplichthys 25. Lasiancistrus AC - — - ? + 26. Psendancistriis 27. Leptancistrus 28. Panaque + + 29. Cheiridodus A — ? - ? _p ? - - - 30. Chcetostomus _ 31. Ancistrus 32. Loricaria _ 33. Sturisoma 34. Farlowella Characid.^ 35. Curimatiis - - - " " - ~ 36. Parodon 37. Apareiodon 38. Saccodon AC + EIGENMANN— FISHES OF SOUTH AMERICA. 39. Prochilodus 40. Characidium . . . . 41. Pyrrhulina 42. Lebiasina 43. Piahucina 44. Grundulus 45. Phanagoniales . . 46. Compsura 47. Odontostilbe 48. Pseudocheirodon . 49. Cheirodon 50. Brycon 51. Othonophanes . . . 52. Pseudochalceus . , 53. Hyphessobrycon . 54. Astyanax 55. Genycharax . . . . 56. Creagrutus 57. Argopleura. ... 58. Phenacobrycon . . 59. Microgenys .... 60. Bryconamericus . 61. Landonia 62. Hemibrycon . . . . 63. N etnatobrycon . . 64. Parastremma . . . 65. Rhoadsia 66. Pterobrycon .... 67. Microbrycon . . . 68. Gephyrocharax . . 69. Chalcinus 70. Thoracocharax . . ji. Char ax 72. Roeboides 73. Aceslrocephalus . 74. Gilbertolus 75. Clenolucinus . . . 76. Hoplias Gymnotid.« 77. Gymnotus 78. Slernopygus . . . 79. Eigenmannia. . 80. Hypopomus . . . 81. Sternarchus . . . . Synbranchid.^ 82. Synhranchus . . . AC A AC* A A AC A AC A AC AC* AC* AC A A Q a. + — ? ? — + EIGENMANN— FISHES OF SOUTH AMERICA. Anguillid.e 83. Anguilla j X Ptciliid^ 84. Gambusia I X 85. Priapichthys | X 86. 87. 88. 90. Mollienisia Rivultis Pseudopacilia X Diphyacanlhus X Neohelerandria X Atherinid^ 91. Thyrina o 92. Menidia SCI.ENID/E 93. Plagioscion ClCHLID^ 94. Geophagus i 95. Aequidens ! 96. Neelroplus ! X 97. Cichlasoma GOBIID.E 98. Hetnieleotris 0 Lepto phyli pniis Microeleoiris loi. Sicydium 102. PimAodus* 103. Hoplosternum 104. Leporinodus 105. Ahramilcs 106. Leporimis 107. Salminus 108. PcBciliopsis Totals Number of genera not in the Magdalena Per cent of the genera not in the Magdalena Per cent of its genera peculiar to the river 99. 100. + + + : 65 74 52 45 17,26 ' 8 10 ;I5I 22 33-8t! fi' 2.2 i| 4 6ji5 0 o 52 37 8 21 + 2.7 + + 26 31 6 10 27j 32 0*6 + * Numbers 102 to 108 are out of their regular places. 102 should go after 9, 103 should go after 21, 104-106 should go after 40, 107 should go after 72, and 108 should go after 90. t This includes many genera widely distributed in the region east of the Cordillera of Bogota which west of them are found only in the Magdalena. GROWTH IN TREES.i By D. T. MACDOUGAL. (Read April 21, /p-'/.) (Plate I.) My studies of the course and physical conditions of growth were extended to inckide the changes in circumference and diameter of tree trunks as well as the elongation of growing branches in 1918, and a new technique with specially designed instruments was found necessary for the analytical study of the changes in volume of these massive organs. The records are now continuous for a large num- ber of trees for many months, one tree having been under continu- ous measurement since September, 1919.- Two new instruments were designed for obtaining measure- ments of growing trees. The dendrograph, an instrument for mak- ing continuous records of the variation of tree trunks, is an instru- ment consisting of a floating frame of metal of low temperature coefficient, such as invar or bario, which may be placed around a tree trunk, and the variation in distance between a contact rod on one side of the trunk and of one end of a rod or lever on the other side is traced by a pen on the free end of a lever on a sheet of paper car- ried by a recording cylinder. Such measurements are in terms of the diameter. In an earlier form of the instrument two levers were employed. One end of a bearing lever was placed in contact with the tree, the free end being linked to the short arm of the recording lever. The results previous to October, 1920, were obtained by 1 The full paper of wliich this is a synopsis will be published by the Carnegie Institution of Washington as prospective No. — of its series. 2 MacDougal, D. T., " The Dendrograph ; a New Instrument for Record- ing Growth and Other Variations in the Dimensions of Trees," Carnegie Inst. Wash. Year Book for 1918, pp. 59-60. " The Dendograph." xhid., for 1919. PP- 1^-1^- " The Coure of Growth in Trees as Measured by the Den- drograph," ibid., for 1920, pp. 51-52. " Measurement of a Season's Growth of Trees by the Newly Designed Dendrometer," ibid., for 1920, p. 52. 7 8 MACDOUGAL— GROWTH IN TREES. this type of instrument. The older and the improved lever sets are illustrated in Plate I, Figs, i and 2. A dendrometer of simple design has been perfected which may be placed around the trunk of a tree and the size of the trunk read on a dial from time to time. The essential parts of this instrument are an encircling wire engaged with a number of bearing levers. One end of the wire is anchored and the other is attached to the short end of a lever, the free end of which moves over a scale giving readings of the size of the trunk in terms of several radii, or of the circumference. By the assistance of collaborators measurements of a number of evergreen and deciduous trees in various habitats from the Atlantic seaboard to the Pacific coast were made in 1919 and 1920. Beech, ash, walnut, sycamore, pines, spruce, fir, poplar and oak trees were included in the list. The principal generalizations supported by the information ob- tained may be briefly summarized as follows : The period in which enlargement of trunks takes place is com- paratively brief even in places in which the season is of indeter- minate duration. Growth is an activity of an embryogenic tract of tissue, the activity of which depends upon environmental conditions, and no part of the observations suggested a seasonal rhythmic action. The Chihuahua pine which exhibits growth of the trunk with that of the branches on the dry mountain slopes with the ad- vance of the temperatures in May and June, is brought to rest coin- cident with the desiccation of the soil in the dry fore-summer. Re- awakening ensues consequent upon the summer rains and enlarge- ment continues until checked by the decreasing temperatures and increased soil desiccation in the autumn. The Monterey pine (Pinns radiata) shows beginning growth of the trunks with the advance of temperatures January to April, and comes to rest in July with the desiccation of the soil. Quercus agri- folia in the same region begins earlier and ceases to grow in June or July. Both may be awakened in July or August by deep irrigation of the soil (Fig. 3). The trunks of all the trees measured show a daily variation in size, by which the maximum is reached shortly after sunrise and MACDOUGAL— GROWTH IN TREES. 9 the minimum at a time after noon, dependent upon external agen- cies. These variations appear to depend upon the water-balance in the woody cylinder, are greatest in the seasons in which water-loss APRIL 5 I9Z0 6PM fi&H 6PM 6AH 6PM 6An 6PM 6Ari 6PM BAM 6PM 6AM 6 PM 6AH ~| _ U ■ ^ _ _ — — 6 PM 6AM- 6PM 6AM 6PM 6AM 6 PM 6AM 6 PM 6 PM 6AM 6PM 6AM 6 >ri ~ _ , - . , . — ^ - ~~ 1 _J L Fig. 3. A, dendrographic record of variations in diameter of Monterey pine tree i meter from the ground for week beginning April 5, 1920. B, record from instrument attached to the trunk 9 meters from the ground. Daily equalizing variations with actual enlargement' beginning mid-week X 8, on a scale of 10 mm. intervals. from the crown is greatest, are least in the cooler or damper sea- sons, and are to be detected in the records even in the period of most rapid enlargement of the trunk (Fig. 4). FEB l-IO-K 6PM 6AM )20 6PM 6AM 6 'M 6AM 6 PM 6AM 6PM 6AM 6PM 6AM 6 PM 6AM 7n 1 S — -• 4 ^ 7n ^ -- '^-^ ?n ^ ^- -^ -^ I'n ^ — -^ Fig. 4. Auxographic record of elongation of terminal internode of young pine tree showing cessation of growth and shrinkage during the mid- day period, coincident with the decrease in diameter of trunks of larger trees, X 3, on a scale of 10 mm. intervals. The trunk of a tree may in fact be compared to the supply hose of a fire engine coupled to a hydrant. When the pressure from the mains is enough to supply water faster than it can be pumped out the hose is distended. When the engine tends to take water faster than it would be delivered by the system, the hose would tend to 10 MACDOUGAL— GROWTH IN TREES. collapse. Something of this sort takes place in many trees which have been kept under observation. The conduit in this case however is not a simple pipe or a set of pipes, but is made up of vessels through which water may pass under capillary conditions, and en- closed box-like tracheids which may be only partially filled with water. When water is withdrawn from such a system faster than it is taken in the resulting changes in form and size are complex in character, but are expressed by the well-defined daily equalizing variations which are of a characteristic type for. each kind of tree (Fig. 5)- JULY 5-12-1920 6AM 12 6PM I? 6AM.g 6PM IZ. SAM 12. 6PM 12. BAM 12, 6PM,.IZ 6AM 12.6PM \1 BAM IZ 6PM IZ BAM 12 6PM 12 6AM IZ 7b fin ^ -^ _^ — ' --V _^ — -v^ \ ^ /- -^ V /^ ^ An ^ xn in — — T in Fig. S. Dendrographic record of Arizona ash near the end of the grow- ing season. The daily equalizing variation is large, but the diameter shows an increase on each successive day. Variations X lo on a scale of lo mm. intervals. The greatest daily equalizing variations were shown by Fraxinus, Pinus, Picea, Pseudotsuga and Juglans, and lesser variations were displayed by Populus, Platanus, Fagus, Quercus and Citrus. No available facts furnish the basis of an adequate explanation of such differences. Estimates of the range of daily equalizing variations in a Mon- terey pine taken from bearings on a thin layer of cork external to the bast of a trunk which had ceased to grow for the season shows that the diameter might vary one part in 1,750. That a large share of this variation is due to changes in the hydration of the living cells is proved by the fact that when bearings are taken on the woody cylinder of the trunk internal to the growing layer the variation drops to one part in 8,750 of the diameter. The actual change in volume in the first instance calculated on the basis of a conical trunk 18 meters high and 35 cm. in diameter at the base would amount to MACDOUGAL— GROWTH IN TREES. 11 about 400 cu. cm. of which not more than one-fifth or 80 cu. cm. is attributable to variations in the wood. It is to be noted however that the change in the voUnne of the wood may by no means be taken to represent the water deficit in the wood. The woody mass is made up of box-hke cells, which may include a bubble of gas, the water forming no more than a thin film on the wall of the cell and enclos- ing the gas bubble in the condition of extreme water deficit. The withdrawal of water through the walls of the cells which are semi- rigid, increases the surface tension of the gas bubble, which results in a slight lessening of volume of the whole mass, but in an amount that would constitute no more than a small fraction of the total of the water loss. Awakening and growth of the terminal buds with resultant elon- gation of leaders and branches generally begins some time before enlargement of the trunk takes place in many trees. The period separating the two may be no more than a week in Quercus agri- folia and has been seen to be as much as ten or twelve weeks in Piiiits radiata. Observations on the Parry spruce and Douglas fir show that the trunks of these trees are enlarging at a time when the buds are in a very early stage of enlargement. In the single case in which dendrographs were attached to a pine tree i meter and 8 meters above the ground growth began co- incidently at the two places in 1920. In the following year, however, the dendrograph at the higher point on the trunk recorded enlarge- ment a few days before any action near the ground was made vis- ible. In February, 1921, an auxograph was brought into bearing on the internode of a pine tree five or six years old which had been formed in 1919. The buds had made a growth of 4 or 5 cm. but no action had yet begun in the internode. A second instrument was brought into bearing on the middle of the internode formed in 1920 on another young tree. Steady enlargement was in progress. The embryonic layer of a tree is in the form of an enclosing sheath terminating in the cones of the growing points. Activation of this tract is generally initiated in the growing points. Swelling in the cambium layer may be practically coincident with this awak- ening in some trees. Cases are recorded in the following paper in which weeks elapsed between the awakening of the buds and the 12 MACDOUGAL— GROWTH IN TREES. enlargement of the base of the trunk. Activation of the growing cells may be taken to depend upon the localized food-supply, tem- perature, moisture or other factors. The fact that growth depends upon physical conditions largely external instead of being a manifestation of a rhythm on the part of the tree is well evidenced by tests in which trees which had ceased to grow with the seasonal drying out of the soil were awak- ened by a renewed water supply. Irrigation of the soil which had a moisture content of less than 6 per cent, around the roots of a Monterey pine was followed by progressive enlargement constituting growth at the base of the tree, and at a point 8 meters higher within 24 hours. The distance from the absorbing surfaces of the roots through which the added water supply must enter could not be less than 3 meters from the lower instrument and the influence of the added supply was felt at the upper instrument 11 meters from the absorbing surfaces within the day. It does not seem possible that water could have been conducted through the tracheids this distance within the given length of time. An irrigation test similar to the above was made with a small California live oak {Quercus agrifolia). The results were even more startling than those described for the pine. Within two hours the dendrograph which had its contacts with the tree at least 3 meters from the absorbing surfaces showed some enlargement, an action which may be directly connected with the fact that the vessels in this oak are numerous and large. The irrigation experiments might be held to simulate the effects of stream overflow, which if due to melting snows would not be ac- companied by any marked higher humidity. It is seen to result in the formation of a tapering shell of wood which was as thick as the seasonal formation at the base of the trunk, but which had but half this thickness 8 meters higher up on the trunk. The layer of normal formation was of practically identical thickness at the two places. One of the earliest series of measurements which would enable the forester to follow the seasonal variations of trunks was that made by C. E. Hall at San Jorge, Uruguay, in 1 885-1 890, by com- monly used methods of calibration.^ Friedrich perfected a device for 2 Hall, C. E., " Notes on Tree Measurements ]Made ]\Ionthly at San MACDOUGAL— GROWTH IN TREES. 13 automatic registration of changes in circumference taken up by a steel band in 1905/ but I have been unable to find any description of re- sults obtained. Such results would include the errors due to the high temperature coefficient of steel. Some measurements of expan- sions of trunks as solid columns were made by Trowbridge and Weil in 1918,^ but the most serious efifort with accurate methods was that of Mallock in 19 18, who used an arrangement including a tape of invar passed around the trunk and two superposed plates of glass by which changes in circumference caused displacements in interference bands of light. Direct and continuous observation yielded accurate results of value with regard to daily equalizing variations as well as of actual growth. ° The trunk of a tree is largely composed of dead cells, but enclos- ing it is a thin sheet of spindle form cambium cells'^ in 2 to 10 or more layers which in the growing season enlarge in thickness and divide lengthwise, those on the outside becoming transformed into phloem cells and those on the inner into wood cells or tracheids. Extending from the center of the trunk are thin sheets or rays of the medulla or pith of the young stem. The most recently formed cells of these elements are still living and in Come trees the medullary cells remain alive for several years, so that the woody cylinder of the tree may comprise wood-cells or tracheids, vessels and thin-wall ray cells, some of which are alive. Externally to the cambium are sieve cells, bast fibers, etc., and cork cells, enclosed in a bark which varies widely as to structure in different species. The greatest amount of increase or change in volume is that which results from the multiplication by fission of the cambium ele- ments, and the following enlargement of the derivatives. The facts Jorge, Uruguay, from Jan. 12, 1885, to Jan. 12, 1890," Trans. Bot. Soc. Edinhurg, 18: 456, 1891. 4 Friedrich, J., " Zuwachsautograpli," Centralh. fiir das gasamnite Forst- wasen, 31. Nov., 1905, pp. 456-461. 5 Trowbridge and Weil, " The Coefficient of Expansion of Living Tree Trunks," Science^ 48: 348, 350, 1918. ^ Malloch, A., " Growth of Tree*- with a Note on Interference Bands Formed by Rays at Small Angles," Proc. Roy. Soc, 90, B, 186-191, 1918. Submitted Dec. i, 1917. ■^ Bailey, I. W., " Phenomena of Cell-division in the Cambium of Arbor- escent Gymnosperms and their Cytological Significance," Proc. Nat. Acad. Sc, 5: 283-285, 1919. 14 MACDOUGAL— GROWTH IN TREES. are not yet available for a definite determination of the part t\'hich growth in the phloem may play in the variations as recorded by the dendrograph. Much however is known as to the cytological pro- gram of the growing elements in cambium and phloem. A correla- tion of facts of this kind and of the seasonal changes in food supply will be necessary to interpret the " growth-impulses " lasting for a few days late in the season, displayed by many trees. ^ Dendrographic data, especially records of experimental settings, may be expected to afford further necessary corrections as to the time element in the interpretation of seasonal layers or " annual rings " upon which much reliance is placed as offering corroborative evidence as to climatic periods and solar cycles. Illustrations. Plate I. Fig. I. Earlier form of dendrograph which takes a bearing from a pre- pared area on the bark of the tree by one end of a small lever, the other end of which is connected with the short arm of a recording lever. An encirc- ling" belt of wooden blocks serves as a base and support. Flexible wire stand- ards with a base of thin sheet metal are clamped in position on the wooden blocks and screw clamps which slide up and down on the wire standards serve to hold the floating frame in a horizontal position. The entire appara- tus is so adjusted that a contact rod of the floating frame on the opposite side of the tree is held with gentle pressure against the tree and any varia- tion in diameter is then expressed by movements in the lever set. Fig. 2. Improved dendrograph lever set. A, inner end of quartz rod in contact with prepared surface on the bark of the tree. The outer end of the quartz rod is fitted with a metal guide which engages the short arm of the recording lever at B. The long arm of the recording lever D carries a pen which makes a tracing on ruled paper on a revolving drum. The hori- zontal member of the frame C which carries the recording lever may be toward or away from the tree to adjust the pen at any point on the paper record sheet. s Knudson, L., " Observations on the Inception, Season and Duration of Cambium Development in the American Larch (Larix laricina Du Roi Koch)," Bull. Torr. Bot. Cluh, 40: 271-293. June, 1913. Brown, H. P., " Growth Studies in Forest Trees. I. Pinits rigida IMill.," Bot. Gaz., 54: 386-402, 1912. "II. Pinus sirobus L.," ibid., 59: 198-240, 1915. Bailey, I. W., " Phenomena of Cell-division in the Cambium of Arbor- escent Gymnosperms and their Cj'tological Significance," Proc. Nat. Acad. Sci., 5 : 283-285, 1919. " The Cambium and Its Derivative Tissues. II. Size variations of Cambium Initials in Gymnosperms and Angiosperms," Ainer. Jour. Bot., 7: 335-367, 1920. "II. A Reconnaissance of Cytological Phe- nomena," Amcr. Jour. Bot., 7: 417-434, 1920. Proceedings Am. Philos. Soc. Vol. LX. 1921, IPlate I Fig. I. Fig. 2. THE ACTION OF BASES AND SALTS ON BIOCOLLOIDS AND CELL-MASSES. By D. T. MACDOUGAL. (Read April 21, 192 1.) The suggestion was made in an earlier paper that the common metals which enter into nutrient solutions might find their chief importance in restricting, limiting or defining hydration of the cell- colloids.^ MacDougal and Spoehr carried out a series of tests upon this matter and found in fact that the strong metallic bases when used at concentrations of 0.0 1 A'^ do limit or restrict the hydration of agar according to their place in the electromotive series, the least swelling taking place under the action of the strongest base, with rubidium unplaced. Beginning with the strongest the series runs K(Rb)NaLi, and if calcium were added to the series the swelling under its action was less than that in potassium. - When the concentrations were reduced however to o.ooi A^ it was found that hydroxides of all of the metals increased the hydra- tion capacity of agar. This was of importance as a review of all of the available data seems to show that the range of the H^-OH" bal- ance in the plant cell lies between the values expressed by Ph3 and Ph II, or between about o.oi M aspartic, succinic or propionic acid and under o.ooi N KOH. The reversal of efifects at great attenuations in the hydroxides led to the extension of auxographic measurements upon the efifects of low concentrations of the salts which are of such interest and im- portance in cultures, and the action of chlorides, nitrates and sul- fates of potassium, calcium, sodium and magnesium upon agar, gelatine and mixtures was made at Carmel in the summer of 1920. 1 MacDougal, D. T., "Growth in Organisms," Science, 49: 599-605. 1919. (See page 11 of reprint.) 2 MacDougal, D. T., and H. A. Spoehr, " The Components and Colloidal Behavior of Plant Protoplasm," Proc. Amer. Phil. Soc, 59: 154, No. i, 1920. 15 PROC. AMER. PHIL. SOC, VOL. LX, B, JULY 25, I92I. 16 MACDOUGAL— ACTION OF BASES AND SALTS A preliminary announcement of the fact that excessive hydra- tion vakies in agar and biocolloids were obtained when these sub- stances were swelled in dilute salt solutions was made before the Physiological Section of the Botanical Society of America at Chi- cago, December 28, 1920, which is in press in the American Journal of Botany for June, 1921. Also of interest in this connection is the announcement of Loeb of the reversals of specific effects of salts above and below M/16 on the swelling, osmotic pressure, and vis- cosity of gelatine.^ S. C. J. Jochems measured the effects of a number of acids, bases and salts upon stems of Laminaria, Fucus, agar, carrageen and upon a number of seeds in 1919. The wealth of results include a num- ber of important generalizations as to the behavior of the plant mucilages and organs when swelled in a number of solutions with a wide range of concentrations. Jochems found that no rule could be formulated for the influ- ence of the basicity of the acid radicals in the sweUing of agar and that the eft'ect of the valency of the base was very small. Still more surprising is the conclusion reached by Jochems that while nearly all of the salts tested, NaCl, NaBr, Nal, NaNo,, Na.So,, Na,HPO„ CaClo, lessened swelling at o.oi M, at 0.05 M the imbibition was greater than in water. The agar was commercial material and some of the diff'erences between these conclusions and the facts discussed in the present paper are to be attributed in part to my use of a spe- cially purified agar.* My own experiments were planned to test the action of salts of interest in connection with nutritive solutions within the range of biological interest, which would lie between o.oi M and o.oooi M. Single series of swellings in KOH and HCl were included for pur- poses of comparison. The first series of tests were made with two plates of agar a year old. Plate A swelled 1,800 per cent, in thickness and 3 to 4 per cent, in length when freshly made, and Plate B, 3,000 per cent, in ^ Loeb, J., " The Action of Salts in Low Concentration," Jour. Gen. Physiol., 3: 391-414, 1921. * Jochems, S. C. J., " De imbibite van plantaardige celwanden in oplos- singen van electrolyten." Published by A. H. Kruyt, Amsterdam, 1919. See pages 35-46. ON BICOLLOIDS AND CELL MASSES. 17 thickness and 3 per cent, in length. Increases in thickness and vol- ume of sections of the two plates at 14-15° C. are given below. The agar used was of a specially purified lot which had been freed from salts and diffusible carbohydrates by dialysis, and a thin solution was sprayed into 10 times its volume of neutral acetone. The re- sulting fine shreds were subsequently extracted with hot absolute acetone, absolute alcohol and absolute ether. TABLE L Th. Vol. Th. Vol. ; Th. Vol. Th. Vol Water KOH HCl . KCl . NaCl MgCb CaCh 1,460 71S 1,140 1,000 750 640 1,610 1,740 635! 55"^ — j 760 1,30s 1,420 1,14s 1,160 824! 7S0 705i 725 1.990 6os|i,570 88oj — 1.56S1I.570 1.32s 1.355 824 1,100 S3O1 900 1,7001 — ji.630 1,730.2,500 I,S2o'2,300 i,34o[i,470 94511,100 1,800 2,800 2,680 1,590 o.oooi M. Th. I Vol. Th. Vol — 2,260 2,540 1,720 2,000 2,400 2,64s 1,750 2,040 2,700 2,975 1,630 1,925:2,10012,315 1, 19O1 1, 500,1,75 1 1,95012,160 The accelerating effect of the potassium hydroxide in its weak- est, and its retarding effect at its strongest concentrations, confirms previous results by Spoehr and MacDougal. This maximum effect is in a o.ooi M solution with a Ph value of 11. A lesser swelling takes place in either a weaker or a stronger solution. If we now pass to the acid reactions it will be seen that in HCl at O.OOI A^ with a Ph value of 3 the swelling of the agar is little short of that in water. At some point between this concentration and 0.0001 A'' swelling becomes equivalent to that which might take place in water and at the last named concentration with a Ph value of 4.2 the hydration is much in excess of that in water, being as 128 with that in water taken as 100. The purified agar used has a Ph value of 6.5 when made up at 0.75 per cent., which is near the limit of its gelation at 15° C. in the 5 MacDougal, D. T., and H. A. Spoehr, " Hydration Effects of Amino- compounds," Proc. Soc. Exp. Biol, and Med.. 17: 33-36, 1919. "The Com- ponents and Colloidal Behavior of Plant' Protoplasm," Proc. Amer. Phil. Soc, 59, No. I, 150, 1920. " Swelling of Agar in Solutions of Amino Acids and Related Compounds," Bot. Gac, 70: 268-278, 1920. 18 MACDOUGAL— ACTION OF BASES AND SALTS making of the plates which furnished the sections used in the swell- ing tests. It is seen therefore that the swelling of agar shows a maximum in a hydrogen ion concentration greater than its own as well as in the hydroxide solution at Ph ii. The above results are to be applied in correction of statements made in many previous publications as to the retarding action of the hydrogen ion on the swelling of pentosans. This mistaken con- clusion has been most recently made in the Report of the Depart- ment of Botanical Research of the Carnegie Institution of Wash- ington for 1920, pp. 54 and 55, in which it is said that " The pentosans are weak acids and in general their hydration capacity is lessened by hydrogen ions. Hydroxyl ions and compounds contain- ing the amino-groups, such as may be in solutions of phenylalanin, alanin, asparagin and glycocoll, may exert an effect by which hydra- tion capacity is increased above that in pure water. Tvlucilages de- rived from various sources show some differences in reactions to the solutions named while conforming to the generalizations given. Their hydration is but little affected by the presence of the common sugars in the water of suspension or dispersion." Some dift'erences in the reactions of the different plant muci- lages to the action of hydrogen and hydroxyl ions might reasonably be attributed to the varying acidity of these substances. Thus com- mercial acacia gum (gum arabic) and purified cherry gum in a 1 per cent, solution have a Ph value of 5.1, which is not far from that of a sample of " Bacto " gelatine in an 8 per cent, solution. The mucilage of Opuniia, which is taken to form an actual part of the plasmatic mass in the cells of this cactus has a Ph value of 5.8 as determined by the indicator method. The data presented in the foregoing table show that the chlo- rides of the four metals at o.oooi M w'ith a Ph value ranging from 5.6 to 6, cause an excessive hydration, which in terms of water as 100, would be CaClo, no; MgCL, 116; KCl, 113; NaCl, 150. At o.ooi M KCl which has a Ph value of 5.8 as compared with a value of 5.7 at 0.0001 M also causes an excessive hydration. Marked dif- ferences are shown by the sections from the two plates in solutions in this concentration, the swelling of one in the sodium being ex- cessive and that of the other lessened. It is to be noted that in the ON BICOLLOIDS AND CELL xMASSES. 19 hydroxides at o.oi A^ the metals exert a lessening effect on hydra- tion in a series which runs Ca, K, Na with the least swelling in the calcium. In the chlorides at o.oi M the scries runs Ca, K, Na, a coincidence strongly suggestive of the specific action of the bases or cations, which has eluded many experimenters. Sections of the agar Plate B were also swelled in nitrates and sulfates of sodium and potassium at 14-15° C. with increases as noted in Table II. TABLE IL Sod ium. Potassium. O.OI M. 0.000 1 M. O.OI M. o.oooi M. Sulphates Nitrates 695-740 905-990 2,170-2,400 2,110-2,215 2,470-2,720 and 670-710 780-827 2,440-2,560 2,280-2,515 2,640-2,910 Water It is to be seen that swelling in the sulfates does not exceed the amount possible in water even in the dilute solution, while at 0.0001 M the swelling in the nitrates of both sodium and potassium is in excess of that possible in water. The eft'ect of the salts on gelatine is one which has received at- tention at the hands of many investigators, but the recently pub- lished results of Loeb on the action of these substances at the low concentrations which may be of biological interest are the most de- cisive yet available.^ However, it was deemed important to carry out swellings of sections of this substance by the auxographic method in order to secure data strictly comparable with those ob- tained from the tests with agar. The gelatine was of a sample which, made up in an 8 per cent, solution, had a Ph value of 5.2 Sections 0.27 mm. in thickness were swelled at 14-15° C. and in- creases were noted in Table III. The hydration of gelatine as illustrated by the action of the HCl is increased by H or OH ions, the effect rising with the departure from the isoelectric point. Thus the swelling in the acid at o.oooi M Ph value of 4.2 is scarcely more than in water, while at o.oi M with a Ph value of 2.01 the swelling is over four times as great as ^ Loeb, J., "The Action of Salts in Low Concentrations,"' Jour. Gen. Physiol., 3: 391, 1921. 20 MACDOUGAL— ACTION OF BASES AND SALTS in water alone. The swelling in KCl at o.oooi M with a PH value of 5.7 is not much greater than in water, and the accelerating effect does not rise so rapidly as in the acid solution, the swelling at o.ooi M with a PH value of 5.8 being not much more than double that in water. Still another effect of interest is that of the calcium chloride solutions, which induce a maximum sv/elling at o.ooi M but de- press hydration as the concentration rises, and as it falls away from this point. TABLE in. o.oi M. Th. Vol Th. Vol. 0.0001 M. Th. Vol. KCl CaCl HCl Salt solution (see p, ii) Water 1,080 2,100 800 600 670 1.350 1,620 4,680 1,600 1,400 1,596 2,200 640 830 730 780 1,160 1,000 1.080 1,300 910 The chief interest in all of the foregoing results lies in their pos- sible use in interpretation of the action of living matter. Varied and extensive series of tests have proved that mixtures of pentosans or mucilages and of albumin or gelatine formed a biocolloid in which many of the reactions of living and dead cell-masses to hydra- tion agencies might be exemplified. It was therefore believed to be of importance that the action of salts upon these mixtures should be tested in connection with a measurement of their action upon liv- ing material. As has been discussed in many previous papers the behavior of a biocolloid to a hydrating solution depends in many important features upon the proportions of the two main constitu- ents. The action of salts was therefore tested upon two types of biocolloids, one in which the pentosan agar formed the greater pro- portion and another in which gelatine was the dominant component. The swelling increases of two such mixtures are given in Table IV. It is notable that in the agar-gelatine mixture the eft'ect of the potassium chloride is essentially identical with that produced on agar alone, except that the limiting effect at the higher concentra- tion is less marked, being at o.oi M but little short of the swelling in water. Sensitiveness to hydrogen ion concentration as shown in reactions to the acid was much more marked than in the agrar ON BICOLLOIDS AND CELL MASSES. 21 alone, and the swelling even in the greatest attenuation of the acid was much less than in water. The limiting effect of the calcium chloride was also very marked. TABLE IV. Hydration of Mixtures of Agar 3 Parts, Gelatine 2 Parts at 14° C. Plates 0.18 mm. in thickness; swelling of sections given in thickness and in volume. Th. Vol Th. Vol. Vol. Th. HCl 550 KCl I, goo CaCl: 920 Water 600 2,015 960 930 2,270 1,220 1,025 2.530 1.345 1.430 2,440 2,030 2,200 I..S7S 2,640 2,268 2.330 TABLE V. Hydration of Mixtures of Gelatine 3 Parts, Agar 2 Parts at 14° C. Plates 0.18 to 0.19 mm. in thickness; swellings given in thickness and in volume. o.oi M. Th. Vol. Th. M. Th. Vol, HCl. . KCl. . CaCh Water 1,200 800 710 1.320 880 740 650 900 870 690 1,010 940 860 1,620 1.300 1.275 920 1.850 1.430 1,420 The gelatine-agar mixture being a dominantly albuminous mix- ture, swelling in acid increased with the concentration which was carried to a PH value of 2.01. On the other hand potassium chlo- ride exerted an effect parallel to that shown by its action on agar, the greatest swelling taking place at the lowest concentration with a PH value of 5.7, the increase being much greater than in the acid at the higher concentration. In general the living cell masses taken from growing organs are dominantly pentosan, but some material has been examined in which the hydration reaction is that of a dominantly albuminous biocol- loid. No conception of living matter in plants not including some of the all-pervading common salts is possible, and any attempt to make a complete picture of the colloidal material of the cell must 22 MACDOUGAL— ACTION OF BASES AND SALTS take into account the compounds of the fatty acids with the com- mon bases, the soaps which as McBain and Salmon have recently shown may exist as both electrolytes and colloids in colloidal masses.'^ These soaps are an almost inevitable component of protoplasm, and some studies of their possible action in the cell will be taken up in a paper now in preparation. Preliminary to any profitable con- sideration of the soaps it is necessary to have some definition of the parts which salts may play in the biocolloidal machine. The meas- urements of swellings given in earlier papers showed that the in- corporation of nutritive salts in colloidal masses lessened the hydra- iton capacity. It is now apparent from the results given on the following pages that such restrictive action was due to the high concentrations employed. This however cannot be said of the amino-compounds, which used as hydrating solutions accelerated swellings, but which incorporated in colloidal masses uniformly reduced hydration capacity in whatever concentration used. In the tests which are to be described it was planned to include the salts which are of importance in nutrition, which induce accel- erated swelling in agar and agar-gelatine mixtures in implied con- centrations, the calcium and sodium furthermore being used in ap- proximately balancing proportions. These salts were first used with purified agar and hydration values as in Table VI were obtained. TABLE VL Hydration of Agar and Salts in Salt Solutions. 5 g. agar, loo c.c. KCl o.ooi^l/, 60 c.c. NaCl at o.oooiM, and 10 c.c. CaCl at o.oooiil/. Sections 0.2 mm. to 0.27 mm. in thickness swelled at 14° C. Th. Vol. KCl o.oooiil/ 2,220 2,780 NaCl o.oooiM 1,800 MgCU o.oooiM 1,380 CaCls o.oooiA/ 1,400 HCl o.oooiiV 2,230 Salt solution as above 2,600 Water 1,760 The total swelling in the present instance is one which is equiva- lent to that shown by many preparations including that of agar "Jour. Amcr. CJieiii. Soc, 42: 426, 1920. ON BICOLLOIDS AND CELL MASSES. 23 Plate A with which the salt tests described in the previous pages were made. With reference to the hydrogen ion concentration the solution of salts added to the agar had a PH value of about 5.8 to 6, the agar alone being about 6.5. The salted agar showed a swelling in even the attenuated solu- tions of calcium and magnesium chloride less than in water. Such solutions accelerate swelling in pure agar. The swelling of the salted agar in sodium solution was as 102 with water at 100, while that in the potassium solution was 132. That this inequality is not simply a matter of hydrogen ion concentration is evinced by the fact that the sv/elling in the acid at PH 4.2 was practically equiva- lent to that of the potassium chloride at 5.7. The incorporated solution may be regarded as approximately balanced and when the sections were swelled in a similar solution the maximum of the series was reached, the increase being as 150 to water as 100. An identical solution was used in making up " Bacto-gelatine "' and the results of the hydration of sections of the dried plates are as in Table VH. Hydration of gelatine plate made up gelatine 5 g., 10 c.c. KCI at 0.01 M, 6 c.c. NaCl at o.ooi M, and CaCU 10 c.c. at o.oooi M, and water 25 c.c. at 14° C. Sections 0.24 to 0.26 mm. in thickness. TABLE VIL 0.01 M. O.OOI M. 0.0001 M. Th. 1 Vol. Th. Vol. Th. • Vol. KCI CaCh HCI Salt solution Water 1,300 750 1,760 1,690 1,000 940 860 5,750 1 1,580 1,300 1,000 2,025 970 970 700 650 1,120 1,200 1,220 815 725 It is to be recalled that this gelatine had a Ph value of 5.2 and that the incorporated salts a Pli of about 5.8 to 6, so that when the dried sections were placed in a salt solution of this constitution the swelling was less than in water and that a similar decrease was noted in the calcium and potassium solutions in 0.0001 M and o.ooi M solutions and in the calcium solution at o.oi M also. Increases 24 MACDOUGAL— ACTION OF BASES AND SALTS took place in the potassium solution at PH of 6.6 and in the acid at PH of 3 and 2. It is evident, without a detailed analysis of these results, that many features beside hydrogen ion conc;ntratio.-i are involved. All of the foregoing tests had as their chief purpose the deter- mination of the reactions of plasmatic constituents and the experi- ments were extended to include the swellings of a biocolloid includ- ing both pentosans and gelatine with the addition of salis, but without the third colloidal component, the soaps, which we now have ample reason to believe play a very important part in the mechanism of living matter. A mixture of gelatine 3 parts and agar 2 parts was made in the usual manner with the addition of salts as in the preparations of agar and of gelatine separately. The increases when h^'drated in various solutions were as noted in Table VIIL TABLE VIIL o.oi M. o.ooi M. o.oooi M. Th. Vol. Th. Vol. Th. Vol. KCl 900 1,030 1,240 i.Azn 1,500 1,240 820 700 1,780 1,450 940 745 1,240 1,600 1,060 1,140 900 1,250 1,500 1,970 1,190 1,260 1,030 1,500 NaCl CaCl2 HCl Salt solution Water 800 1.735 855 2,070 The more prominent reactions are those of the gelatine element as would be expected in accordance with which the highest concen- tration is in the most concentrated solution of the acid. It is notable that as in the gelatine-agar salt-free plate depression occurred in acid at PH 3 and that at PH 4.2 the swelling was still below that of water. Practically applied to the living cell this would mean that hydration lessened with increasing acidity to the region of PH 3 beyond which the active cell would rarely go. Sodium and calcium exerted similar effects, but the swelling in potassium at o.oooi M was equivalent to that in water while at o.ooi M it was greater. A review of the results presented in this paper would show many special results from the action of this salt. The recently published results of experiments upon the coagu- ON BICOLLOIDS AND CELL MASSES. v5 lating action of neutral salts upon plasmatic colloids by Tadokoro furnish' some important collateral conclusions. Tadokoi'o found that all chlorides of aluminium, barium, strontium, calcium and magnesium cause coagulation of plasmatic colloids in an increasing series in the order given in concentrations from AV200 to N, 10, and that KCl exerted a stronger action than NaCl. Many profitable comparisons may be made between the results of his tests of the action of salts upon crushed galls and of the swelling reactions of biocoUoids given in the present paper.^ Furthermore both afford many parallels with the swelling reactions which were obtained by the extension of my experiments to include the measurement of the action of the salts, particularly the chlorides, upon living and dead cell-masses. The first material tested was taken from the large " prop " roots of corn plants a meter in height growing in the garden at Carmel. Root-hairs were only sparingly developed on a terminal section 3 to 5 cm. long, and sections 4 or 5 mm. in length including the tip were taken and freed as completely as possible from particles adherent from the loose sandy soil in which they grew. The average thick- ness of trios placed under the auxograph ranged from 2 to 2.5 cm. Such sections dried down to thickness of 0.3 to 0.4 mm. when placed between sheets of blotting paper. Such sections of living material made practically all of the changes in volume indicated within eight to fifteen minutes, the speediest action taking place in the acid and the slowest recorded being in the potassium solution, although this matter is partly a function of the size or length of the sections. In illustration of the swelling and shrinkage it may be cited that in the acid the sections return to normal size in about 2 hours. Shrinkage to original thick- ness may in some cases take place within a day, although twice this period elapses in other instances. The results of the auxographic measurements are given as aver- age percentages of original thickness in Table IX. If the facts in this table are taken for comparison with those ^ Tadokoro, T., '' Kolloidchemische Forschungen ueber das Pflanzen- plasma," Jour. Coll. of Agric, Hokkaido Imp. Univ., Sapporo, Japan, 7: part 5, 144-182. 1919. 26 MACDOUGAL— ACTION OF BASES AND SALTS obtained from the salted biocolloid, disregarding- possible osmotic effects, it will be seen that hydration in both potassium and sodium is greater than in water, magnesium equivalent, the swelling less in calcium and acid, indicating that the cell-colloids are dominantly TABLE IX. Hydration of Roots of Zca ma'is, Living and Dried, at 15° C. Living. Dried. o.oi M Per Cent. 0.0002 M Per Cent. ■ 0.01 M Per Cent. 0.0002 M Her Cent. NaCl 4-5 3 -.5 0 I 2.1 4 3-4 4. 4. 4 94 112 100 • 88 65 MgCh CaCl2 120 Balanced solution HCl KCl '. Water pentosans. The dried and dead material showed increased hydra- tion capacity over water in all solutions except that of calcium, measurements which may be taken to be free from the major part of the errors introduced by the osmotic and plasmolytic effects in the living material. It is notable also that when calcium was bal- anced with sodium the swelling was at a minimum in the living material but it rose above that in water in the dried cell-masses, but did not attain the maximum value for the series which was shown by the calcium solution at 0.0002 M. The dried material presents a series of hydration reactions which suggest those of an agar-gelatine mixture. The smaller actively growing roots of the same maize plants were subjected to comparative tests in a living condition only. Swelling was most in acid and least in water, the series being water = NaCl, balanced solution, CaClo = KCl, HCl, as contrasted with the larger roots in which the series was CaCl.,, balanced solution, HCl, KCl, and NaCl as given in Table X. Seeds furnished by Dr. Fawcett, of the Citrus Experiment Sta- tion at Riverside, California, were sprouted in a chamber at 23° to 25° C, by being placed in a moist sand bed. When the roots had attained a length of i to 3 cm. the apical portions 3 or 4 mm. in ON BICOLLOIDS AND CELL MASSES. 27 TABLE X. Hydration of Small ]\L-\ize Roots in Various Solutions at 15° C. 0,01 M. NaCl 10 Balanced solution 18 CaCl, 20 HCl 30 KCl 20 Water 10 length were cut off, placed in trios in glass dishes, covered with a triangular sheet of glass from which bearings were taken by auxo- graphs in a room at 15° C. The swellings in percentages of orig- inal thickness were as in Table XI. TABLE XL o.oi M. 0.0002 M. o.oooi M. NaCl 0.7 I I O.S 1-5 0.9 0.8 2.2 CaCh KCl HCl I 0.7 2 Water 2 The series at o.oi M was HCl, NaCl, KCl = balanced solution, sea-water, water. In the more attenuated solutions the series was HCl, NaCl, CaClo, KCl, sea-water, water, balanced solution, only the last named producing a hydration greater than in water. The series is suggestive of the action of a dominantly pentosan bio- colloid. Some plants of Fragai'ia (strawberry) which were growing in an injuriously saline soil were transferred to a sand bed and roots grown in both sub-strata were available for testing. The differences which might be induced by these divergent factors are well illus- trated by the measurements given in Table XII. TABLE XH. Grown in Sand. Grown in Soil. NaCI o.oiM 50 ID Balanced solution o.ouU 45 5 HCl o.oiA^ 15 8 Sea-water o.oiM 20 5 Water 30 10 2S MACDOUGAL— ACTION OF BASES AND SALTS The hydration capacity of the roots grown in saHne soil was less throughout than that of the roots grown in sand in which the salts introduced by the water of irrigation were much attenuated. Other differences suggest that the roots in the saline soli were more highly proteinaceous and also had a higher incorporated salt content. Still another test was made with sections taken from the joints of Opuntia growing near the Desert Laboratory in February, 1921. The course of change in the chemical composition of this material is known in some detail. The pentosan constituent of the cell- colloids reaches a maximum earlier in the winter and was lessening at the time of the experiments but would still be so large as to make for a dominantly pentosan colloid. Swellings as in Table XIII were exhibited by two samples which are given in separate columns. TABLE XIIL Water 164 168 KOH o.oiiV 177 17s KOH o.ooiAT 152 158 KOH o.oooi# 169 153 HCl o.oiA'^ 146 136 HCl o.ooiN 172 161 HCl o.oooiA^ 150 150 KCl o.oiM ISO 153 KCl o.ooiM 146 KCI o.ocx)iM 179 Swellings greater than in water are induced by KOH with a PH value of 12, in KCl with a PH value of 5.7 and by HCl at o.ooi A'' with a PH value of 5.7. Here as in all tests of living material the measurements are com- plicated by osmotic effects, although it is to be noted that the final swellings in Opuntia are reached after immersion for a day and the results are more clearly imbibitional than in any of the other ma- terial used. General Considerations. The following generalizations may be made upon the basis of the experimental results described in the foregoing paper. I. The strong metallic bases which were found to lessen the swelling of agar to a degree corresponding to their relative posi- ON BICOLLOIDS AND CELL MASSES. 29 tions in the electromotive series when used as hydroxides, give the same relative action when used as chlorides. The series runs Ca, K, Na, the greatest retardation being effected by the calcium and the least by sodium, when used at concentrations of o.oi M. 2. Reversed effects by which hydration of agar is increased are shown by the hydroxides at o.ooi A'', as described in a previous con- tribution, but no well-defined dift'erences among the bases used could be made out. Similar reversed effects were exhibited by the chlorides of calcium, magnesium, potassium and sodium at o.oooi M and by potassium and sodium in concentrations as great as o.ooi M. 3. Purified agar used in the experiments has a PH value of 6.5, also swells more in HCl at a PH value of 4.2 than in water, a state- ment to be applied in correction of various conclusions in previous papers. 4. Purified agar shows exaggerated swellings in a series of acid, salt and hydroxide solutions in which the hydrogen ion concentration ranges from PH 4.2 to 11. 5. Purified agar also shows exaggerated swellings in sodium and potassium nitrates at o.oooi M but not in the sulphates. 6. Of the chlorides of calcium and potassium and hydrochloric acid at concentrations from o.oi M to o.oooi M only KCl at o.ooi and O.OOOI M increase the swelling of an agar-gelatine mixture. In a similar series only KCl at o.oooi M increases swelling in a gela- tine-agar mixture. 7. Agar plates with included chlorides at concentrations increas- ing swelling, when applied as hydrating solutions showed exag- gerated swelling in HCl, NaCl, KCl at 0.0001 M, but a lessened swelling in CaCL and MgCU at this concentration. 8. Gelatine plates with incorporated salts as above showed swelling in HCl increasing with the concentration beginning with the O.OOI M solution, in reverse of the action of the CaCL solution which was greatest but still less than in water until at o.oooi M. Swelling in KCl did not exceed that in water until a concentration of O.OI M was reached. 9. The maximum swelling of a gelatine (3 parts) -agar (2 parts) plate is greatest in HCl o.oi A^, KCl o.ooi M and CaCU at O.OOOI M. 30 MACDOUGAL— ACTION OF BASES AND SALTS 10. Different ecological types of roots of maize show different hydration reactions to the solutions used in hydration tests of col- loids as noted in the foregoing paragraphs. 11. Roots of strawberry show differing hydration reactions when grown in saline soils and in sand. 12. Roots of orange seedlings show lessened hydration in acid solutions and their hydration was lessened in all solutions except balanced solutions of sea-water and of sodium and calcium chloride. 13. Swellings of sections of joints of Opuntia were greatest in KOH at o.oi A^, HCl at o.ooi N and KCl at o.oooi M, all produc- ing effects in excess of the swelling in water. 14. The changes in volume of living cell-masses in hydrating solutions include osmotic-plasmolytic eft"ects in the alterations of the volume of the included cells. The hydration of dead cell-masses includes possible osmotic action of cell-walls. 15. The hydration reactions described in this paper may include coagulation effects when the higher concentrations were applied to the biocolloids, similar to those of the plasmatic colloids. Actual effects of balanced solutions are clearly defined in the hydration of agar, and some suggestions of similar action in the biocolloids arise from the measurements of swelling of the biocolloids described. A NATURAL GROUP OF UNUSUAL BLACK OAKS. (Plates II to IV.) By WILLIAM TRELEASE. {Read Jpril 21, 1921.) Though most oaks bear only one or two acorns in a leaf axil, it is recognized generally that even when essentially sessile these fruits and the flowers that produce them really pertain to a reduced pis- tillate catkin which is comparable with the staminate catkin. Some- times the fertile flowers, though close together, are raised on a rather long peduncle, a condition well shown by our swamp white oak {Oitcrcits hicolor) and the English oak (Q. pcdnnculata, or Q. Rohitr pcdnnculata). Several groups of Mexican and Central Amer- ican white oaks have similarly long-peduncled acorns, e.g., those centering about Q. macrophylla, Q. peditncularis and Q. reticulata. In some of these, as in an exceptional ally of our own southern live oak 0. z'irginiana, occasional acorns occur along the peduncle; and in Q. dccipicns of the eastern Sierra Madre these are frequent enough and the rachis is long enough to make the inflorescence in fact a sort of loose spike or catkin. All of these belong to the section of white oaks, Leucobalanus, which are characterized technically by their short broad stigmas, basal abortive ovules, and the glabrate interior of the acorn shell. The purpose of this paper is to make known three black oaks of the southern Mexican mountains which are quite unique in their section of the genus in bearing their fruit in racemes — or more properly spike-like clusters. They possess the technical characters of the black or red oak section, Erythrobalanus: elongated spatulate stigmas, subapical abortive ovules, and acorn shells tomentose within ; but they dififer from most black oaks and agree with all white oaks in maturing their fruit in the course of the season of 31 PROC. AMER. PHIL. SOC, VOL. LX, C, JULY 2$, I92I. 32 TRELEASE— UNUSUAL BLACK OAKS. flowering instead of deferring fertilization and maturation of fruit for a year. The first of these species was collected by Dr. J. N. Rose of the United States National Herbarium in the mountains of Tepic in 1897; the second, by Monsieur E. Langlasse in the Sierra of Alicho- acan or Guerrero in 1899; and the third, by Professor C. Conzatti of Oaxaca in the southern Cordillera in 1907. They constitute a natural group which in some respects suggests relationship with that embracing Q. crassifoUa, 0. fiilva and Q. stipitlaris, which likewise mature their fruit in the first season though differing greatly in some other respects. The common and differential characters of these new species may be stated thus : Raceniiflorae. — Moderateh^ large trees with stout tomentose twigs, rounded buds, large cordate pandurate-obovate or orbicular concave aristately dentate petioled leaves impressed-veiny above and tomentose beneath, and small annual fruit in elongated raceme- or spike-like catkins, the thin cupules with tomentose scales. — Western Sierra Madre and southern Cordillera of Mexico. Petioles long (20-30 mm.). Leaves longer than broad, somewhat repand Q. Urbani. Leaves isodiametric. aristate from the nerves Q. radiata Petioles short (scarcely 15 mm.): leaves isodiametric Q. Conzattii. Quercus (Erythrobalanns) Urbani n. sp. A tree 8-10 m. high, with tortuous trunk. Twigs stout, with dense yellowish tomentum persisting through the second season. Buds rounded, somewhat tomentose. Leaves large (15x16 cm.), deciduous, pandurate-subobovate, shortly acuminate, cordate-auricu- late, lightly hollowed between the aristate ends of the veins, con- vex, glossy and glabrous except for the impressed veins above, densely creamy-tomcntose beneath; petiole yellow-tomentose, 3x25 mm. Flowers unknown. Fruit annual, small, in yellow-tomentose spikes 80-110 mm. long, densely flowered toward the end; cup small (10 mm.), hemispherical, with thin appressed blunt fulvous-tomen- tose scales ; acorn ovoid, 10 mm. long, canescent. Called encino cucharilla, from its deeply spoon-shaped leaves. Western Sierra Madre of ]\Iexico. at 1,800 m. {Langlasse. 1066, June 20, 1899), from Michoacan or Guerrero, — the type in the her- barium at Dahlem, for the privilege of studying which I am indebted to Professor Ignaz Urban, of that institution. Proceedings Am. Philos. Soc. Vol. LX. 1921, Plate II Qucrcus Urbani. Proceedings Am. Philos. Soc. Vol. LX. 1921, Plate III Qncrcus radiata. TRELEASE— UNUSUAL BLACK OAKS. 33 Quercus {Erythrohalanus) radiata n. sp. Twigs stout, densely yellowish-tomentose, remaining somewhat velvety for several seasons. Buds rounded, small (2-3 mm. in diam- eter), somewhat tomentose. Leaves large (9-13 cm. long and broad), deciduous, pandurate-orbicular, at most deltoid-pointed, cordate-auriculate, not hollowed between the radiate aristate ends of the veins, dull and glabrous except for the impressed veins above, detachably rusty-tomentose beneath with the denuded surface some- what bullulate ; petiole yellow-tomentose, 3x10-15 mm. Flowers unknown. Fruit annual, very small, in somewhat loosely yellow- stellate spikes 60-80 mm. long, densely fruited above the middle ; cup very small (7-8 mm.), hemispherical, with thin appressed blunt f ulvous-tomentose scales ; acorn elongated ovoid, 8 mm. long, cane scent. Western Sierra ]\Iadre of IMexico {Rose, 22^0, Aug. 13, 1897), from the top of the range near Santa Teresa, Tepic, — the type in the United States National Herbarium, for the privilege of study- ing which I am indebted to Dr. Rose, of that institution. Quercus {Erythrohalanus) Conzattii n. sp. Twigs stout, gray-tomentose even through the second year. Buds ovoid, rather small (3x5 mm. or more), somewhat hairy. Leaves large (8-10x9-12 cm.), deciduous, orbicular, very obtuse to short-acuminate, cordate, very slightly hollowed between the tips of the aristate veins, glossy, glabrous except for the impressed veins and convex above, densely grayish-woolly beneath ; petiole gray- tomentose, 3 x 5—15 mm. Flowers unknown. Fruit annual, small, in woolly spikes 40-50 mm. long, densely fruited throughout ; cup small (scarcely 10 mm.), hemispherical, with thin appressed blunt glabrate scales; acorn ovoid, scarcely 10 mm. long, canescent. Southern Cordillera of IMexico, at 2,000 m. {Conzatti, igoo, June 29, 1907), from the Cuesta de Huauchillo, Nochixtlan, Oaxaca, — the type in the herbarium of the Field Museum at Chicago, for the privilege of studying which I am indebted to Dr. C. F. Alills- paugh, of that institution. Explanation of Plates. Illustrations, reduced one half, of the types of Quercus Urbani, Quercus- radiata and Quercus Coticattii; from photographs by the author. THE FIXED GLACIAL ANTICYCLONE COMPARED TO THE MIGRATING ANTICYCLONE. By WILLIAM HERBERT HOBBS. (Read April 24, 1920.) The discussion upon the " General Air Circulation over the Antarctic " contained in Dr. Simpson's final report upon the meteor- ological observations made in connection with Captain Scott's last expedition/ is devoted especially to my theory of the glacial anti- cyclone and the opposite conception of the glacial cyclone as set forth by Meinardus, the meteorologist of the German South-Pole Expedition. Simpson's summing up of his conclusions is, however, a trifle difficult to evaluate, for he says : " On considering the whole of Hobbs' paper one cannot help feeling that in spite of his failing to explain the origin of the precipitation and the mechanism of blizzards he has made out a very strong case for the existence of an anticyclone over all extensive masses of inland ice and over the Ant- arctic in particular. Therefore one would be inclined to agree with the generally accepted idea that there is an intense anticyclone concentric with the Pole and covering the whole of the Antarctic Continent. " On the other hand, however, Meinardus in his discussion of the results of the Gauss Expedition attacks the theory of the Antarctic anticyclone with great vigour and one must admit with most convincing success.- We will therefore now examine the problem from Meinardus' point of view." From these paragraphs one is unable to decide whether Dr. Simpson favors the one or the other theory. The following cita- tions from his monograph will indicate that he has failed to grasp the fundamental physical fact which is the raison d'etre of the anti- cyclone, namely, the domed surface of the continental glacier : " Hobbs . . . contends that an anticyclone exists over every extensive snow-covered land and takes the Antarctic and Greenland as the two most ^ George C. Simpson, D.Sc, P\R.S., Meteorology, British Antarctic Ex- pedition 1910-1913, Vol. I, discussion (pp. 326, pis. 5) and Vol. 2, Weather Maps, Calcutta, 1919. 34 I HOBBS— THE FIXED GLACIAL ANTICYCLONE. 35 pronounced examples. To the anticyclones which owe their origin to a snow-covered land Hobbs has given the name ' glacial anticyclone ' and he has worked out at considerable length the meteorological features of such anticyclones" (page 248). " In my opinion . . . the descending air in the anticyclones is very poor in vapour." (Citation from Meinardus on page 249.) " One must agree with Meinardus in this matter and there can be little doubt that Hobbs has left unsolved what we shall see in the next section is the greatest problem of the Antarctic anticyclone, namely, the origin of the precipitation within the anticyclone." On page 250 of his report several statements are made by Dr. Simpson in summarizing' my views (such, for example, as that the air moves inward along the surface to replace the surface outflow of air) which are without warrant and in common with the entire chapter reveal a very careless reading. I have therefore no re- course but to restate some of the more essential elements in my con- ception of the glacial anticyclone and to call attention to the several papers in which I have dealt with the subject.^ Among later ones I would note especially a paper in the Proceedings of this society.^ In all my writings upon the glacial anticyclone I have been at much pains to explain that the domed surface of the ice is essential to the development both of the anticyclone and of the alternating calms and blizzards which record its strophic action. In my " Char- acteristics of Existing Glaciers" it is stated (p. 149) : "It is due to the peculiar shield-like form of this ice-mass that the heavier cooled bottom layer (of air) is able to slide off radially as would a film of oil from a model of similar form. The centrifugal nature of this - " The Ice Masses on and about the Antarctic Continent," Zcitsch. f. Gletschcrk. Vol. V., 1910, pp. 107-20. " Characteristics of the Inland-ice of the Arctic Regions," Proc. Am. Pliilos. Soc, Vol. XLIX., 1910, pp. 96-109. "Characteristics of Existing Glaciers" (Macmillan, 1911), Chaps. IX. and XVI. and Afterword. " The Pleistocene Glaciation of North America Viewed in the Light of our Knowledge of Existing Continental Glaciers," Bull. Am. Gcogr. Soc, Vol. XLIIL, 191 1, pp. 641-59. "Earth Features and their Meaning" (Macmillan, 1912), pp. 283-86. "The Ferrel Doctrine of Polar Calms and its Disproof in Recent Observations," Proc. Second Pan- American Scientific Congress, Vol. II., Sec. II., Washington, 1917, pp. 179- 89. " The Mechanics of the Glacial Anticyclone Illustrated by Experiment," Nature, July 22, 1920. 3 " The Role of the Glacial Anticyclone in the Air Circulation of the Globe," Proc. Am. Phil. Soc, Vol. 54, 1915, pp. 185-225. 36 HOBBS— THE FIXED GLACIAL ANTICYCLONE. motion tends to produce a vacuum above the central area of the ice-mass, and the air must be drawn down from the upper layers of the atmosphere in order to supply the void. It is here that is located the 'eye' of the anticyclone." Again (p. 266) : "This anticyclonic circulation of the air is not determined in any sense by latitudes but is the consequence of air refrigeration through contact with the elevated snow-ice dome, thus causing air to slide ofif in all directions along the steepest gradients." In my monograph published in the Proceedings of this society it is stated (Vol. 54, p. 188) : "It is because the inland-ice masses have a domed surface that they permit the air which is cooled by contact to flow outward centrifugally, and so develop at an ever- accelerating rate a vortex of exceptional strength." Despite the statements of Meinardus that the descending air within the anticyclone would be very poor in vapor, a statement which is approved by Simpson, we now know from the records of several Polar expeditions that within the eye of the glacial anti- cyclone there is found an area of calm with shifting light, variable winds and excessively high humidity which results in mist or fog or even showers of ice needles, whereas all about are outwardly directed air currents associated with relative low humidity. From the Antarctic glacier we have the record of Amundsen made in the vicinity of the southern pole and that of Captain Robert Scott, who entered the same region about a month later. From the Greenland glacier we have the scientific reports of two professional and highly experienced meteorologists, de Oueiwain and Wegener, that of the former from about the median line of the ice-dome near latitude 68° N., and that of the latter from near the very center. Captain Amundsen entered the central area of the Antarctic ice- dome near the 88th southern parallel, finding there what he believed to be a region of permanent calm or of light winds and of generally clear weather. The snow surface was smooth with no drifts. For a fortnight the sky was clear except on two days when there were snow flurries. Insolation was so intense that perspiration poured from the bodies of the men even when most of their clothing had been removed. HOBBS— THE FIXED GLACIAL ANTICYCLONE. 37 A month later Captain Scott entered the same general region and remained within it for about three weeks to report generally similar conditions. After passing the parallel of 8/^/4° scarcely a day passed that he did not jot down in his diary the observation of variable light winds and of a soft snow surface. He appeared to be puzzled by the clouds " which don't seem to come from anywhere, form and disperse without reason." ..." Coming and going over- head all day, drifting from the southeast and constantly altering shape, snow crystals falling all the time." Again and again he refers to the dampness and chill of the air and that when the ther- mometer was examined all were surprised that it recorded so high a temperature. In Greenland de Quervain found the air over the ice within the central area moved by light variable winds and highly charged with mosture, the mist hiding members of the party at only moderate distances and the beards, caps, chins, etc., frozen into a solid mass of ice. In their report on the Swiss Greenland Expedition, de Quervain and Mercanton,^ after giving in tabular form the data for humidity above the inland-ice along the route of the expedition, sum up as follows : We find, therefore, a quite high average relative humidity, 82 per cent, as well for the whole distance as for the central region, and a quite small daily variation of the relative humidity : this varies on the average for the entire time between the values of 88 per cent, and "]"/ per cent. ; for the cen- tral zone the variation is somewhat greater, namely, between about 92 per cent, and Ti per cent. Near the border of the ice the relative humidity is less by about 5 per cent. (p. 136). Koch and Wegener encountered farther north when crossing the central area of the ice-dome a region of atmospheric calm with much mist, which in the morning was so dense as to obscure the sun. Clothing was constantly wet and could be dried only with the greatest difficulty. The most striking departures of ice-dome anticyclones from the ordinary tjavelling anticyclones are : ( i ) the fixed, as opposed to the migrating, position of the air whirl; (2) the location of this whirl * Prof. Dr. Alfred de Quervain and Prof. Dr. P. L. Mercanton, Er- gebnisse der Schweitzerischen Gronland Expedition, 1912-1913, Dcnkschr. d. schweiz., Natnrf. GcselL, vol. 53, 1920, pp. 402, pis. 4. 38 HOBBS— THE FIXED GLACIAL ANTICYCLONE. above a glacier of domed surface; (3) the pronounced strophic character of the circulation (calms alternating with blizzards), and (4) the notably different distribution of humidity. These attributes being all either connected directly with or depending upon the form and the location of the continental glacier, the expression glacial anticyclone adequately expresses both the resemblances to and the dififerences from the common type of migrating anticyclone. Dr. Simpson has raised the point that the snow surface must during the summer season be warmer than the air above it, and in support he cites the effect of insolation upon snow of the ice-barrier. Over the glacier outlets such as the Beardmore, within which at the conclusion of a blizzard the f oehn effect is enormously intensified ; over the flat central areas of the ice dome ; and, in Greenland, over the western marginal zone extending inwards some tens of miles, within which during the calms of the anticyclonic stroph the in- coming whirls from the westward invade the ice-dome and scatter dust over its surface, similar effects have been observed. Over the vast area of the continental glaciers, however, and especially upon the slopes which induce the circulation, such effects have not, so far as I am aware, been recorded ; and it is in point that during the summer season practically all our data have been gathered. From widely separated regions, on Greenland and over the Antarctic alike, we now possess a wealth of amazingly consistent testimony that, except for the brief interval at the conclusion of a blizzard when the anticyclone literally " turns itself inside out " and becomes mo- mentarily a cyclo'ue, the wind blows dozen slope though deviated to accord with the deflection from earth rotation (see Proc. Am. Phil. Soc, Vol. 54, 191 5, pp. 193-203). In the report recently issued by de Ouervain and ]Mercanton is supplied this significant statement : According to the experiences on the crossing and from our knowledge of the distribution of air pressure at the time, we were compelled to remain under the impression, which any worker must gain from our meteorological tables, that the most strongly marked, highly regular connection exists be- tween the summer wind conditions of the central Greenland inland-ice and its topography. On the west side of the gigantic ice-shield regular south- cast winds varying from strong to tempestuous ; on the east slope, likewise, HOBBS— THE FIXED GLACIAL ANTICYCLONE. 39 somewhat less strongly marked it or t Incest winds. Strongly stated, it appears indeed as if the air was streaming out after the manner of a liquid from the interior down the inclined slopes toward both coasts, but turned 45° to the right through the action of earth rotation. Such a determination, even for summer conditions, gives support to the assumption of very marked inland-ice anticyclones in the sense of the inter- esting demonstrations of W. Hobbs (in "The Existing Glaciers"). Our advance results have therefore given added value to these views. Barrier-ice is as regards its areas wholly subordinate to inland- ice within the Antarctic, and. so far as is yet known, it is peripheral and contained within enibayments, yet the stations where meteor- ological observations have been continuously made in the Antarctic have generally been located off the inland-ice, upon the barrier, and always within the zone marginal to the glacier where the control of local circulation falls periodically under the domination of the glacial anticyclone as it passes through its strophic changes. This fact was recognized by David for the winter station of the Shackle- ton Expedition. Framheim, where the station of Amundsen was located, is somewhat less under the domination of the anticyclone from the neighboring King Edward Land than are the British sta- tions under that of South Victoria Land, but the evidence of fre- quent control is not lacking. Upon the borders of the Greenland ice dome, where quite similar conditions exist, though generally without the presence of barrier- ice, account of the periodical overwhelming of local circulation by the glacial anticyclone has been taken by the meteorologists who have established stations there. Brand and Wegener in Northeast Greenland in positions where topography especially favored such studies, and for the express purpose of evaluating the degree of domination by anticyclonic conditions, established a second station (Pustervig) close to the margin of the inland-ice and some forty miles distant from the main meteorological station at Danmarks- Havn. As a consequence it was learned that " in spite of the short distance of only 60 km. from Danmarks-Havn . . . this influence is verv^ noticeable." ^ L'ntil meteorological stations can be estab- lished upon the inland ice our best knowledge of circulatory condi- ^ W. Brand and A. Wegener, Meddelelscr 0m Gronland, Vol. 42, 1912, pp. 451-562. 40 HOBBS— THE FIXED GLACIAL ANTICYCLONE. tions over continental glaciers will be obtained through assembling the observations recorded in the journals of sledging parties, notably the wind direction, the orientation of sastrugi, temperature condi- tions, snow surface and humidity. Dr. Simpson's discussion of the Antarctic blizzard suffers espe- cially because in his evaluation of the available moisture content of the air over the Antarctic region he has taken account, not of the water content in all states of aggregation within the unit of space, but of that portion only which is uncongealed and therefore regis- tered by the usual hygrometric apparatus. Adiabatic changes readily transform the ice needles of the cirri into moisture, which until again congealed or crystallized is duly registered upon the hygro- metric record, and if the congealed material is not to be entered in the accounting the proper equating of available moisture before and after an adiabatic meteorological change will be impossible. This is obviously the reason why Dr. Simpson says of my theory of the glacial anticyclone that it fails "to explain the origin of the pre- cipitation and the mechanism of blizzards," and "Hobbs has left un- solved . . . the greatest problem of the Antarctic anticyclone, namely, the origin of the precipitation Vv^ithin the anticyclone." As a matter of fact, in all my papers upon the subject this process of precipitation and its origin in the blizzard itself has been elaborated, not as an additional feature of the anticyclone, hut as a necessary in- herent quality zvhich can in no zvise be omitted. The continental glacier in its evolution must be conceived to have developed from enlargement of an ice-cap which is nourished like the mountain glaciers by ascending moist air currents. Ice-cap glaciers exist today on Iceland, in Norway, and as isolated masses on the borders of continental glaciers. Though in form they resemble continental glaciers, they are: (i) much smaller, (2) they are nourished by a wholly different process, (3) they owe their exist- ence to their location upon a pedestal-like base which is relatively flat and extends above the snow line of the region. An interesting question arises, " At what stage of their develop- ment will this type of glacier take on the auto-circulation of a con- tinental glacier and by reaching up draw down the ice needles of the HOBBS— THE FIXED GLACIAL ANTICYCLONE. 41 cirri for its nourishment? " When will it first make its own weather instead of taking- that which is brought to it by travelling whirls? A partial answer seems to be aft'orded by two glaciers, the Vatna- jokull of Iceland and the inland-ice of Northeast Land, Spitzbergen. Some years ago Dr. Thoroddsen, who of all scientists was best ac- quainted with the Vatnajokull, informed me that it possessed no auto-circulation but appeared to be entirely dominated by the vigor- ous cyclonic whirls which sunmier and winter are located over the sea to the southwestward. This mass of ice is roughly elliptical in shape with major and minor axes of about eighty and fifty miles respectively and has an area of 8,500 square km. Subsequent ob- servations by other observers lead me, however, to hold this as perhaps doubtful. A larger ice mass which is more nearly circular and with corresponding axes of one hundred and eighty miles is the inland-ice over Northeast Land, Spitzbergen. The narrative of Baron Nordenskiold, who crossed it in 1873, clearly reveals the evidence of anticyclonic conditions. The great glacial antic3'clones of Greenland and the xA.ntarctic can hardly be considered apart from their important role as parts of the earth's planetary system of winds — they perform an important service in turning backward toward the tropics those high level cur- rents which have passed the horse latitudes and have not yet been brought down to the surface, in doing which they remove the moisture which had been locked up in the ice needles of the cirri. They undoubtedly lend vigor to the entire circulatory system and thus accentuate the climatic zones. When in the Pleistocene age far greater continental glaciers lay over North America and Northern Europe, the climatic zones must have been still more strongly marked. There appears to be in this an explanation of the fact, now generally recognized,'' that in the geologic past climatic barriers have prevented the poleward or equatorvvard migrations of sensitive organisms only during such geologic periods as were characterized by extensive glaciation and presumably by correspondingly strong 6 See F. H. Knowlton, " Evolution of Geologic Climate," Bull. Geol. Soc. Am., Vol. 30, 1919, pp. 499-566. 42 HOBBS— THE FIXED GLACIAL ANTICYCLONE. climatic zonation, as I pointed out in 1916.' We are living today in the waning hemicycle of one of these abnormal glacial periods, and as a consequence have reconstructed much of the past geologic his- tory, not upon the standard or typical pattern of the earth, but upon a markedly abnormal, short-lived and seldom occurring set of condi- tions which happens to be the one in which we are living. University of Michigan, September 14, 1920. ■^ W. H. 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JAN 7 1922 'jS'i-f PROCEEDINGS OF THE American Philosoplikal Society HELD AT PHILADELPHIA FOR PROMOTING USEFUL KNOWLEDGE IVol. LX. 1921. No. 2. CONTENTS PAGB Discussion of a Kinetic Theory of Gravitation, and II, Some New- Experiments in Gravitation. By Charles F. Brush - - - 43 'I Rose Atoll, American Samoa. By Alfred Goldsborough M.4Y0R ------------------ 62 Tobit's Blindness and Sara's Hysteria. By Paul Haupt - - - 71 A New Hoplophoneus from the Titanotheruim Beds. By William J, Sinclair ---------------- 96 PHILADELPHIA THE AMERICAN PHILOSOPHICAL SOCIETY 104 South Fifth Street 1921 Members who have not as yet sent their photographs to the Society will confer a favor by so doing ; cabinet size preferred. It is requested that all correspondence be addressed To THE Secretaries of the AMERICAN PHILOSOPHICAL SOCIETY 104 South Fifth Street Philadelphia, U. S. A. jrii' DISCUSSION OF A KINETIC THEORY OF GRAVITATION, II, AND SOAIE NEW EXPERIMENTS IN GRAVITATION. (Plates V. and VI.) By CHARLES F. BRUSH. (Read April 22, 192 t.) At the Minneapolis meeting of the American Association for the Advancement of Science I had the honor to outhne " A Kinetic Theory of Gravitation,"^ which is in substance briefly as follows: The ether is assumed to be endowed with vast intrinsic kinetic energy in wave form of some sort capable of motive action on parti- cles, atoms or molecules of matter, and propagated in every con- ceivable direction so that the wave energy is isotropic. The waves are of such frequency, or otherwise of such character, that they pass through all bodies without obstruction other than that concerned in gravitation. Distribution of the ether's energy is uniform through- out the universe except as modified by the presence of matter. Atoms or particles are imagined to be continually bufifeted in all directions by the ether waves like particles of a precipitate suspended in turbulent water. Each particle or atom of matter is regarded as a center of activity due to its energy of translation initially derived from the ether. There is continual absorption and restitution of the ether's energy, normally equal in amount ; but the ether is permanently robbed of as much of its energy as is represented by the mean kinetic energy of the particle or atom. The particle or atom thus has a field of influence extending in all directions, or casts a spheri- cal energy shadow, so to speak, the depth or density of the shadow varying with the inverse square of distance. The energy shadow of a body of matter is regarded as the sum of the shadows of its ^Science, March 10, 1911; Nature, March 23, 1911. PROG. AMER. PHIL., SOC. , VOL. LX, D, DEC. 20, I92I. 43 44 BRUSH— KINETIC THEORY OF GRAVITATION. constituent parts. The energy shadows of two gravitating bodies interblend, so that the energy density between them is less than else- where, and they are pushed toward each other by the superior energy density, or wave pressure, on the sides turned away from each other. At the April meeting of the American Philosophical Society in 19142 I presented a discussion of above theory which I commend to the attention of those interested in the general subject of gravita- tion— the greatest of all outstanding physical problems. While it is easy to picture the formation of the initial energy shadow of a single body of matter, I have always found it difficult to account for the maintenance of such a shadow. But when we con- sider two or more bodies (and there can be no manifestation of gravitation without involving two or more bodies), there is no trouble in picturing the interblending energy shadows between them, and this is the essence of the theory under discussion. That the ether really is endowed with vast intrinsic energy in some form or forms is the belief of many eminent physicists, and it seems to me highly probable that all energy has its source and destination in the ether ; that is to say, that energy in all the various forms in which we observe it comes in some way from the ether and is energy of the ether. In this connection I beg to propose the hypothesis that the ether is abstract energy — energy pure and simple, quite apart from any- thing else. If the quantum theory of energy is tenable, then we may perhaps regard the ether as a vast atmosphere of energy quanta in violent agitation possibly somewhat like the molecules of a hot gas, though almost infinitely finer grained. In support of my contention that ethereal energy is the cause and essence of gravitation, I wish to emphasize particularly, what seems to me an obvious fact, that the energy acquired by a falling body comes from the ether, and is restored to the ether when the body undergoes negative gravitational acceleration. (See Discus- sion above referred to.) For many years I have sought for some experimental method of attacking the gravitation problem, but without success until a few 2 Proc. Amer. Phil. Soc, Vol. LIIL, No. 213, Jan.-May, 1914. BRUSH— KINETIC THEORY OF GRAVITATION. 45 months ago. Study of the nature of gravitation is beset with un- usual difficulties, because gravitation is ever with us and about us ; it is the one universal phenomenon, and we can not escape from its influence — can not obtain any outside point of view. In this connection I have endeavored to study the nature of a magnetic field in the hope of finding something common to it and gravitation; because we can largely localize a magnetic field and study it. Have long regarded a magnetic field not as a static affair, but alive with pulsating ethereal energy possibly akin to that of a gravitation field. This view finally led to the thought that the very minute nega- tive permeability of many substances, known as diamagnetism, may also oflfer some appreciable resistance or obstacle to the gravitational energy flux through such substances, and thus affect their gravita- tion field. But what will be the nature of such modification, if any? It seems highly improbable' that there can be any absorption of ethereal energy by a diamagnetic substance, because this would almost cer- tainly generate heat in it — it would normally be warmer than its surroundings. I have carefully tested bismuth for this effect and found no generation of heat. But there may be a very slight reflec- tion of the ethereal wave energy from each atom or ultimate particle of a diamagnetic substance, which may perhaps be regarded as a scattering effect, possibly analogous to the scattering of light by a faint opalescence in an otherwise transparent body. This I thought should weaken the gravitation field between a diamagnetic substance and a small neighboring body, whereby the attraction bet ween, them would be less than between the same neighboring body and a non- diamagnetic or less diamagnetic substance of the same mass as the first diamagnetic substance. I realize that there may be no real foundation for the specula- tions detailed above, though I now have much experimental evidence which appears to support them ; but, if for no other reason, they are important because they prompted the following experiments and brought to light their surprising results. The first experiments were planned to detect, if possible, a dif- 46 BRUSH— KINETIC THEORY OF GRAVITATION. ference between the gravitation field of a comparatively large mass of the metal bismuth, which is the most diamagnetic substance known, and the gravitation field of a similar mass of lead and of zinc, which are very much less diamagnetic than bismuth, and also of tin which is slightly paramagnetic. To this end it was proposed to measure the minute gravitational attraction between each of the above masses and a very much smaller nearby mass of some metal, the same small attracted mass to be used in all cases. In such a scheme the large masses would do nearly all the attracting, and their several gravitational pulls per unit of mass would be comparable. To carry out this scheme Professor Dayton C. Miller very kindly provided, from his large collection of physical apparatus, a beautiful instrument designed for class-room demonstration of gravitational attraction between two small silver balls and two large lead spheres in the usual manner of such apparatus. It is a modification of the apparatus designed and used by Professor C. V. Boys for determin- ing the gravitation constant and the mean density of the earth. Each small silver ball weighs three fourths of a gramme, and the pair are mounted at the ends of a horizontal small straight metal rod, with their centers 2-^ cm. apart. Rising from the center of this connecting rod is a small vertical rod carrying, at a distance of 6 cm. above the silver balls, the usual small mirror for scale reading, set at an angle of 45° with the ball-carrying rod. These parts con- stitute the oscillating system, and are suspended by a long quartz filament in a brass tube, the balls only projecting below the tube into a narrow glass-walled chamber, made shallow in order to mini- mize convection currents inside. ]\Ieans are provided for leveling the whole apparatus, for orienting the free-hanging system and for clamping the balls when not in use. The apparatus is permanently grounded through one of its leveling screws. The large lead spheres and their carriages were discarded and replaced by a light reversible wooden carriage. The photograph, Plate V., shows the apparatus as set up in my basement laboratory. The delicate part first described is mounted on a heavy marble slab firmly bracketed in the angle of two twenty-inch brick walls. These are inside walls, and hence not liable to sudden Proceedings Am. Philos. Soc. Vol. LX. 1921, Plate V BRUSH— KINETIC THEORY OF GRAVITATION. 47 temperature changes due to outside weather conditions. The whole lay-out is thirty feet from the nearest window, and the temperature of the laboratory is very uniform and steady. The room selected is an inside one and contains no heating apparatus. The floor is thick concrete. The reading telescope shown in front and the car- riage referred to are mounted on a massive table with thick marble top, nowhere touching the bracketed slab or the walls to which it is attached. The illuminated millimeter scale is two meters to the right of the oscillating system and does not show in the picture. It will be noted that the tall brass tube containing the quartz filament is loaded at the top with a hollow cone of metal. This is found to increase the stability of the suspension apparatus very greatly by so lengthening the period of free vibration of the upper end of the tube that it can not respond to vibrations of the building due to street traffic or other causes. Although the nearest street is 300 feet away, traffic vibrations often can be felt. The whole apparatus is protected from radiant heat of the scale lamp, and one other more distant lamp used to light the room, also from the heat and breath of the observer, by screens of cellular paper (not shown). All air drafts in the room are avoided as care- fully as possible. The rheostat on the wall in the upper part of the picture has nothing to do with the apparatus, and never is used durino; observations. Fig. I is a plan diagram of the essential parts. The suspended silver balls are seen at A. B and C are cylinders of different metals, 48 BRUSH— KINETIC THEORY OF GRAVITATION. such as bismuth and zinc for instance, whose attractions for the nearer silver ball are to be compared. The cylinders are carried on the ends of a thin strip of wood D, which is pivoted at its center to, and supported by, a thick disc of cast iron E whose upper face is dressed flat and leveled. The height of E is such that a horizontal plane midway between the upper and lower ends of cylinders B and C is in the center plane of the balls A. The carriage D is covered with tin-foil kept in metallic contact with £ by a brass-wire spring. E is permanently grounded ; thus B and C are always grounded. The cylinders B and C are very carefully so placed on the carrier D that when the latter is revolved i8o° and brought against a re- movable stop-pin F , C will occupy exactly the same position in re- spect to the balls A as did B before the reversal. All the metals experimented with are in the form of cylinders of the same size, 4.9 cm. high and 6.1 cm. diameter. When in position, the surface of a cylinder is 1.3 cm. from the center of the nearer silver ball. The zinc cylinder weighs 1.014 kg., and the other cylinders weigh more or less than this according to their several specific gravities. The zinc cylinder attracts the nearer silver ball with a force of about one three hundred thousandth part of a dyne, and as the oscillating system is very sensitive, having a free period of seven and a half minutes, the excess of this attraction over that for the more distant ball gives a scale deflection of about 4.2 cm., which is ample for observation, because deflections are easily read to o.i mm. As the mirror doubles the real deflection, the latter is 2.1 cm. at a dis- tance of 2 meters. Hence the silver ball moves about 0.2 mm. toward the attracting cylinder, where the attraction is about i per cent, greater. This change in attracting force is approximately cor- rected by so locating the cylinder B that the angle a h c \s slightly obtijse at the start, and becoming more so as the ball advances causes the attractive efifort to be less effective. Hence the deflection as read by the telescope may be taken as a closely approximate measure of the attraction of the cylinder for the ball. Of course, the center of attraction in the cylinder does not lie in its axis, though near it. But this does not matter, because its location is the same in all the cylinders. BRUSH— KINETIC THEORY OE GRAVITATION. 49 The attraction of B on the silver balls must draw the oscillating system out of plumb; but as this effect amounts to only about a millionth of a millimeter, it is entirely negligible. Prior to using the apparatus the cylinders are swung into a posi- tion at right angles to that shown, all lights are extinguished except those to be used in making observations, and the room is closed against all draft. After two or three hours of repose, to equalize temperatures, one of the cylinders is moved into operative position a minute or two only, to start a definite movement of the oscillating balls. Then the diminishing oscillation limits are read 6 or 8 times to establish the zero point. Next, one of the cylinders is moved into operative position and left there until 6 or 8 oscillation limits have been read ; then the cylinders are exchanged by reversing the carrier, and 6 or 8 more deflection readings are made. Twice again the cylinders are exchanged and similar readings taken, so that two sets of readings are had for each cylinder. Usually they agree very well indeed, and their mean is taken as the true value. Finally, both cylinders are swung out of position as at first, and another set of readings taken to redetermine the zero point. Although such a series of readings occupies about four hours, the zero drift rarely exceeds two scale divisions (2 mm.) and, as- sumed to have been progressive, is apportioned among the several sets of readings. In the above manner many comparisons have been made of lead and bismuth ; lead and zinc ; bismuth and tin ; bismuth and zinc ; silver and zinc; and lastly of aluminum and bismuth and aluminum and zinc. The interlacing observations support each other very satisfac- torily. In every case the observed deflection is divided by the weight of metal causing it, so as to reduce all to a common standard of attrac- tion per kilogram. Table I embodies the results thus far obtained, taking zinc for a standard and calling its attraction per kg. 100. 50 BRUSH— KINETIC THEORY OF GRAVITATION. TABLE I. Aluminum 130 Zinc 100 Tin 100 Lead 93 Silver 80 Bismuth ^2, Each of the above values is the nearest whole number to the mean of many observations except in the case of silver, which is based on one set only. Occasionally, though not often, deflections were observed which were considerably less than usual for the metal used, and sometimes unequally less for the two metals being compared, thus showing less or more contrast between them — usually less. But in no case was the contrast even nearly obliterated, nor its sign changed. The cause or causes of these occasional irregularities have not yet been ascertained, but are diligently sought. In view of them, however, the values given in the table must be regarded as fairly good first approximation only. Pure iron was tried because, magnetically, it is the antithesis of bismuth. But while it caused deflections neither very large nor very small, they were quite irregular, doubtless due to local disturbance of the earth's magnetic field. The slight residual magnetism after the iron cylinder was subsequently magnetized horizontally caused it to give widely different deflections when differently oriented. But from certain pendulum experiments next to be described it is thought that iron should have a place in Table I, somewhat nearer zinc than bismuth, say about 87. The zinc and tin used in these experiments are of commercial purity only ; the bismuth, silver and lead are almost chemically pure, and the aluminum contains traces of silicon and iron. It is interesting to note that bismuth exhibits much the smallest attraction per unit of weight, as was hopefully predicted ; and al- though this may not be due to its exceptional diamagnetic qualities, the possibility that it is so due promises a fruitful field for future exploration. If further experimentation seems to warrant it, I shall, in a future paper, endeavor to expand the idea that diamag- BRUSH— KINETIC THEORY OF GRAVITATION. 51 netism is not simply a manifestation of negative magnetism (and this view is supported by the fact that diamagnetism is not affected by varying strength of magnetic field), but is an inherent attribute, in varying degree, of many kinds of matter, often more or less masked by paramagnetic qualities. It is also interesting to note the low atomic weight and small density of aluminum at one end of the scale of attractions, and bismuth with its very high atomic weight and large density at the other end. It seems needless to say that the line of investigation indicated by the foregoing experiments is but barely begun. It is proposed to try many other metals, as well as alloys and chemical compounds, in the hope of finding some general law embracing all. If such further experimentation confirms, in general, the findings already made, and I have yet found no reason to doubt that this will be the case, the scientific possibilities of the discovery are rather bewildering. It may mean, among many things, that we shall have to revise our notions of atomic weight values ; that the second part of Newton's law of gravitation is not general in its application, and that if Professor Boys and others had used zinc or tin or bismuth for their large attracting spheres, instead of lead, their findings for the gravitation constant and mean density of the earth would have been materially dififerent, though still erroneous. As soon as the above-described experiments had proceeded far enough to afiford reasonable assurance that the eiifects observed were not spurious, though very much larger than looked for, I planned and began work on some pendulum experiments in the hope of again showing that weight and mass are not related in so simple a manner as heretofore supposed. Of course weight is only an accidental attribute of mass and varies enormously in different localities, as on the sun, the earth, the moon and in interstellar space; while mass remains constant everywhere. But relative weight has always been taken as a true measure of relative mass in the same locality. The foregoing experiments seem to refute this ; hence the pendulum experiments were undertaken for proof or further refutation. 52 BRUSH— KINETIC THEORY OF GRAVITATION. Undoubtedly the commonly accepted measure of mass, viz., its resistance to a definite accelerating force, positive or negative, is reliable and safe. If, then, we have two pendulums of exactly the same real length, one with a zinc bob and the other with a bismuth bob, and find that their periods are not the same, we may reasonably infer that the accelerating force of gravity acts more strongly per unit of mass on the one having the shorter period than on the other. This is the principle, though not exactly the method, of the pendulum experi- ments next described. It was realized from the start that the difiference, if any exists, must be very small, and not easy to detect, because the earth's field is so enormously preponderating that it does virtually all the attract- ing; and the supposed differences in the extremely weak fields of the zinc and bismuth may be so nearly lost in the immensity of the earth's field as to be undetectable. Nevertheless, it was thought worth while to try the experiment in view of the importance of the subject. The photograph, Plate VI., shows the pendulum apparatus as originally installed, together with driving clocks at the top, added later for long-continued observations. A starting cradle, moving in guides on the low table just below the cylindrical zinc and bismuth bobs, serves to start the pendulums swinging exactly together in any desired amplitude. After pushing the bobs sufficiently to the left, the cradle is suddenly withdrawn to the right, leaving the bobs free. This device is entirely satisfactory ■ in performance. A horizontal thick plate of hardened steel is very firmly bolted to the lower flange of a heavy iron I beam imbedded in the masonry of the ceiling and walls of the room. The plate is dropped 6.5 cm. below the beam by cylindrical iron spacers through which the bolts pass and is carefully leveled. Near one edge of the upper face of the plate is a long shallow V grove of 90° angle, with a slightly rounded bottom carefully ground straight and polished after the plate was hardened. From this plate hang two exactly similar pendulums of about Proceedings Am. Philos. Soc. Vol. LX. 1921. Plate VI BRUSH— KINETIC THEORY OF GRAVITATION. 53 2.284 m. effective length and 15.2 cm. apart. Each pendulum rod, except for a few cm. at each end, is of mild steel, perfectly straight and 1.6 mm. diam. Both rods were cut from the same specimen, so as to have the same temperature coefficient. The upper 20 cm. of each rod is 0.4 cm. diam. round steel with fine screw thread and thumb nut on its upper part. The thumb nut has eight radial holes for a long brass pin, the whole adapted to effect very fine adjustment of pendulum length. The thumb-nut rests on the horizontal face of a 60° triangular " knife-edge " of hardened steel through which the rod passes. The upper part of the rod is slightly flattened on one side by grinding, and a thumb-screw in one end of the knife-edge block bears against the flattened side of the rod and clamps it firmly in the block after each length adjustment is made. The knife-edge, ground true and sharp, rests in the plate groove above described, while the rod passes downward through an opening in the side of the plate. Each pendulum rod terminates at its lower end in a straight brass rod 13 cm. long and 0.4 cm. diam. A perfectly straight hori- zontal steel pin passes loosely through the brass rod near its lower end, and on this pin the cylindrical bob, or weight as I shall here- after call it, rests. 'Fig. 2 shows the upper and lower parts of one pendulum in detail, with the bismuth weight in place. The brass rod at the lower end passes just freely through the weight, and accurately in its axis. A weight is easily removed from either pendulum by lowering it after the pin is withdrawn, and an- other weight may be substituted by reversing the procedure. While this is being done the pendulum rod is kept taut by another tem- porary, radially slotted, lead weight applied just above, and resting on the upper end of the brass rod. Thus the weights forming the bobs of the two pendulums may readily be exchanged without dis- turbing anything else. The weights to be compared, bismuth and zinc in the first in- stance, were made very accurately the same in height, and with upper and lower ends as nearly plane and parallel as possible, by careful grinding on a perfectly flat surface. 54 BRUSH— KINETIC THEORY OF GRAVITATION. It is essential that the centers of gravity of the weights be exactly the same distance above their supporting pins. To assure this, each weight was adjusted to have its center of gravity exactly midway between its upper and lower ends by the following procedure : The pendulums having been started swinging with a definite amplitude Fig. 2. and brought to synchronism by length adjustment, one of the weights was turned over ; this at first resulted in loss of synchronism at the same amplitude. Then, as indicated, the upper or lower cylindrical portion was slightly reduced in diameter by turning off or sandpapering in the lathe. Again the pendulums were synchron- ized, and again the same weight was turned over and synchronism tested. This process was repeated again and again with each weight until either could be turned over without affecting synchronism in the slightest observable degree. In making these adjustments very minute departure from synchronism could be detected in half an BRUSH— KINETIC THEORY OF GRAVITATION. 55 hour at the turning points of the swing. For certain reasons all tests were made with the same initial amplitude. Instead of making the cylinders the same in diameter, they were made approximately the same in weight, about 1.377 kg., so that when they were exchanged the length of the pendulum rods would not be affected. Otherwise it would have been necessary to apply corrections for the elastic modulus of the rods and for their weight with every exchange. The latter correction would have been very important, but liable to error. Finally, the zinc and bismuth pendulums were adjusted to syn- chronism as perfectly as possible in 40-minute runs with initial amplitude of 35 cm. As it turned out, the bismuth pendulum was then materially longer than the zinc one. It was the whole aim of the pendulum experiments to detect and measure this difference if it existed. Next the weights were exchanged, so that, in effect, the bismuth pendulum was now the shorter one by double the former difference. On again starting the pendulums, at the former amplitude, loss of synchronism was easily observable in 2 minutes — the bismuth gain- ing. In 40 minutes the bismuth gain was very large. In the same and other forms this experiment was repeated many times, and always with the same unequivocal result. Equality of air resistance was effected by attaching small paper projections to opposite sides of the bismuth normal to the line of swing, of such size as to produce air damping equal to that of the zinc as shown by equal time loss of amplitude. It appears from this experiment that the earth's gravitation field, which is here the accelerating force, grips the bismuth more strongly per unit of mass than it grips the zinc per unit of mass ; in other words, a given mass of bismuth appears to weigh more than the same mass of zinc. Apparently the length of a seconds pendulum depends on the material of which it is made. The greater diameter of the zinc cylinder slightly lowers its center of oscillation, and this accounts for about 10 per cent, of the effect above described, as determined by elaborate experimentation which need not be detailed here, and which was verified by com- putation. 56 BRUSH— KINETIC THEORY OF GRAVITATION. A pair of high-grade, weight-driven clock movements were next added to the apparatus, as shown in the upper part of Plate VI., and adapted to drive the pendulums continuously at an amplitude of 13 cm. After synchronizing the zinc and bismuth pendulums at this amplitude, the zinc and bismuth weights were exchanged as hereto- fore described. Then they were started exactly together and al- lowed to run until they were again exactly together, the bismuth having thus gained two full beats. Half the elapsed time was taken as the value of one beat gain. Again the pendulums were synchronized, the zinc weight now being on the pendulum formerly occupied by the bismuth weight ; then the weights were exchanged as before, the pendulums started together, and allowed to run until the bismuth had gained two beats as formerly. This procedure was for the purpose of verifying the first finding and to expose any considerable difiference there might be in the performance of the driving clocks. No such difference was found ; yet for verification the same procedure was followed in the next experiments. A cylinder of very pure iron was next prepared, of exactly the same height, and approximately the same weight as the zinc and bismuth cylinders, and adjusted for center of gravity with the same care. The iron weight or cylinder was then compared with the zinc weight and with the bismuth weight, with the same care used in comparing the zinc and bismuth as above described. The iron gave results intermediate between those of zinc and bismuth, rather nearer the zinc. Table II. shows the performance of the zinc-iron, the iron-bis- muth and the zinc-bismuth combinations. The measurements of time required to gain one beat check and confirm each other re- markably well. As the pendulums make about 2,388 oscillations per hour, the bismuth gains one beat, or oscillation, in about 17.432; but as before pointed out, the real zinc-bismuth effect is only half of this, say one part in 35.000. This weight-mass difference effect, though not large, appears fairly well established and is impressive. BRUSH— KINETIC THEORY OF GRAVITATION. 57 TABLE II. Zinc-Iron 15^/^ hrs. "1 g,/ .< r Mean 17 hrs. Iron-Bismuth 13 hrs. 121/2 " y Mean 13 hrs. 3/2 " V Mean 7.2, hrs. Zinc Iron Bismuth Zinc-Bismuth 7 hrs. 20 min. 7 " 16 " 17 hrs. 13 hrs. Reciprocals : 7-2> hrs. I I I 17 13 7-36 Various further pendulum experiments are contemplated ; and an apparatus adapted to compare the velocities of freely falling masses of zinc and bismuth, and perhaps even measure their differ- ence, if any, has been designed. In the foregoing pendulum experiments the only force involved for both weight and acceleration was gravity. In the following ex- periments the accelerating force of a flexed spring was substituted for that of gravity. Everybody is familiar with the so-called " anniversary " clock, a s'.ow motion, torsion-pendulum clock adapted to run at least a year Vvithout rewinding. One of these clock movements of the best quality was used, and its regular disc pendulum was replaced by the arrangement shown in Fig. 3. a is a very narrow ribbon of tempered steel about 11 cm. long, from which depends the brass member b. Rigidly clamped into the lower end of h is the horizontal brass rod c, carrying at its ends two bismuth cylinders Bl. e e are brass sleeves of equal length, just loosely fitting the rod c, to aid in the first rough adjustment of the cylinders. The bismuth cylinders, and a similar pair of zinc cylinders, one of which is shown at the upper left, are all accurately cylindrical, 58 BRUSH— KINETIC THEORY OF GRAVITATION. and accurately the same in diameter — about 2.8 cm. Each cyhnder has its ends ground as flat and parallel as possible and at right angles with its axis. The members of each pair of cylinders have very closely the same weight, and the combined weight of the bis- muths differs from the combined weight of the zincs by a fraction of a milligram only. The weight of each pair is 304.541 -f- grms. Of course, the zinc cylinders are considerably higher than the bis- muths on account of their lower specific gravity. Zn m K Fig. 3. It is essential that the axes of the cylinders be equi-distant from, and parallel with, the axis of the member b. This adjustment is first approximately made by means of a jig in which all the parts are placed. At the left of the figure one of the cylinders is shown in section, which also shows the rod c ground wedge-shaped for a considerable part of its length within the cylinder. Into the wedge- shaped spaces thus left long thin wedges of soft wood are driven, the upper or lower one more than the other, until the axis of the cylinder is parallel with the axis of b. The wedges also serve to fasten the cylinder tightly onto the rod. After the final adjustments the protruding parts of the wedges are broken off. The weight of the wedges is small, and being virtually the same for each cylinder, is negligible. The most important adjustment of all is the radii of gyration, because an error here of only 0.03 mm. in both radii would double or obliterate the whole difference found in the behavior of the zinc and bismuth, though this difference, as will be seen, is very consider- able. The aim is to make the double radius as accurately as possible BE USH— KINETIC THEORY OF GRAVITATION. 59 the same always when the zincs and bismuths are exchanged. This adjustment is made by gently tapping with a very small hammer one or both projecting ends of the rod c, or driving either cylinder, as indicated, further onto its rod with a block of soft wood until the desired over-all dimension is obtained, indicating a standard (though much smaller) double radius. In making this adjustment for the following experiments the most patient care was exercised, and a micrometer caliper of high precision was used. The driving clock had been running about two months since winding when the experiments hereafter detailed were made, yet the amplitude of the new pendulums was much greater than necessary to unlock the escapement. One tooth of the " scape-wheel " was marked, and this came round to a certain definite position every five minutes by the face hands of the clock, indicating 40 gyrations of the pendulum. Thus the clock was used as an accurate and de- pendable counter of pendulum gyrations. A good watch was kept always in the same position beside the clock to measure elapsed time, and always wound at the beginning of an experiment. Room tem- perature remained nearly constant throughout the experiments. A glass hood always covered the clock to keep out air drafts. Runs of 22 to 24 hours were usually made, to average up irregularities in watch and clock rates. Total elapsed time in seconds was divided by the counted number of gyrations to get the periods in seconds of a single gyration. Many preliminary experiments were made to detect lack of homogeneity in any cylinder, if such existed. To this end each cylinder was separately turned about — its inner element made the outer — or its upper end the lower. In no case was there any ob- servable change of period. The matter of unequal air resistance of the two pairs of cylinders was gone into quite extensively. Of several attempts to equalize this, the following was found the most trustworthy. A pair of short hollow cylinders of thin firm paper, closed at one end, and of such diameter as to slip snugly on the upper ends of the bismuth cylinders were prepared. These cylinders or caps were pushed just far enough down on the bismuth cylinders to make them equal the zinc cylinders in height, plus thickness of PROC. AMER. PHIL. SOC. VOL. LX, E, DEC. 20, I921. 60 BRUSH— KINETIC THEORY OF GRAVITATION. the paper cylinder ends. The performance of the bismuth cyhnders thus equipped was carefully compared with that of the zinc cylinders wearing the same paper caps pushed down to contact. Of course, the paper caps, because of their weight, slightly increased the periods of both zinc and bismuth cylinders. But, within the limits of ex- perimental error, it increased them equally, thus showing no effect from the equalization of air resistances. Hence the paper caps, apparently serving no useful purpose, were not used in the following experiments. TABLE III. Bismuth Zinc Period r 8".9232 Period f 8".9299 j .9231 8".93i8 ->. .9329 8" .9228 1 .9226 t .9326 .9223 ^■'■'^'-' I '"tf9 8".9232 8".9302 ^".9247 I 8".9255 8".9295 .924 Mean 8" 9228 .9218 .9232 .9247 8".9298 .9231 I 8" .9318 .9279 .9302 ■9295 8".923i 8".9298 Difiference 0 .0067 8 .9298 1333 Table III. embodies the results of a series of experiments with the zinc and bismuth cylinders on the torsion pendulum. Each period is computed from a run of 22 to 24 hours. All the observed periods are given — not those selected from a larger number. All bracketed periods were obtained with one setting of the cyl- inders. After one period or set of periods was observed with either pair of cylinders, these were removed from the pendulum frame and the other ]:)air substituted. This involved each time a new and very careful adjustment of the radii of gyration as before explained. BRUSH— KINETIC THEORY OF GRAVITATION. 61 It is seen that the bismuth pendulum had the shorter period by one part in 1333. This is a very gratifying confirmation in kind of the earher gravity pendulum findings. It is also extremely interesting to note that the wcigJit-viass dif- ference between bismuth and zinc appears to be many times greater (''^''^^/isss) when the mass is measured by the accelerating force of a steel spring than when it is measured by the accelerating force of gravity as in the former pendulum experiments. This is very suggestive and will be discussed in a future paper. Of course, these relative values are only rough first approximations ; but their difference is very much too large to be attributed to experimental errors. More torsion-pendulum experiments are in progress, and all, thus far, confirm the above findings. A pair of pure silver cylinders are being prepared to compare both with the zinc and with the bismuth ones. Although the three distinctly different lines of experiment de- tailed herein loyally support each other, I hesitate to draw general conclusions from their (to me) astonishing results until after much further experimentation for additional data, and much more time for reflection. I am greatly indebted to Charles F. Brush, Jr., for efficient aid in preparing the apparatus described, in reducing observation data and in making computations. Cleveland, April, 1921. ROSE ATOLL, AMERICAN SAMOA. By ALFRED GOLDSBOROUGH MAYOR. (Read April 23, 1921.) His Excellency the late Commander Warren Jay Terhune, U. S. N., then Governor of Samoa, was so kind as to invite me to accompany him on the U. S. S. Fortune to visit the little known Rose Atoll in S. Lat. 14° 32', W. Long. 168° 12', and we spent twenty-four hours upon this island from June 5 to 6, 1920. There has been no scientific account of the island since 1839. The island is an atoll, the lagoon being encircled by a narrow ring of limestone composed chiefly of lithothamnium, which is every- where nearly awash at low tide, excepting on the northeast side, where there is a narrow entrance about six to nine feet in depth, out of which a current constantly flows. The ring of limestone which surrounds the lagoon is quite uniformly about 500 yards in width, while the central lagoon is about two miles wide and appears to have a maximum depth of not more than eight fathoms. There are only two small islets upon the atoll rim, Sand Islet and Rose Islet. The only map of the atoll is U. S. Hydrographic Chart of the Samoan Islands No. 90, based on the survey of the U. S. Exploring Expedition in 1839. This shows Rose Islet as occupying the entire width of the atoll rim, whereas at present it is confined to the inner half of the width of the reef rim. Moreover, this chart shows trees covering the entire area of the islet, whereas at present only the southern half of the islet bears trees. The chart states that Rose Islet is 33 feet high, but at present the land of the islet is 11 feet above high tide, and the tallest trees, as measured by means of a sextant, are about 80 feet high, and thus the total height of the land- fall as seen from the ocean is about 90 feet. Rose Islet is at present about 240 yards S.S.W.-N.N.E., and about 200 yards wide. The southern and southeastern half of the islet is densely covered with a forest composed exclusively of 62 MAYOR— ROSE ATOLL, AMERICAN SAMOA. 63 Pisonia grand is trees, casting so complete a shade that no other plants grow beneath them, save only a single cocoanut i)alm, which was probably planted by Governor Tilly's party about fifteen years ago. This forest forms a nearly symmetrical dome, the leaves and branches on its confines extending quite to the ground. The largest trees are near the southern end of the grove, and about three feet above the ground one of these trees had a girth of 25 feet 7 inches, and was about 80 feet high. The ground under these trees is cov- ered with a rich chocolate-colored humus, which is of considerable depth near the southern end of the grove. Apart from this grove of pisonia trees and a half dozen cocoanuts planted by Governors Tilly and Terhune in 1902 and 1920, there are only two other species of plants upon the islet. These have been identified by Professor William A. Setchell and are a pink-flowered creeping Boerlmaz'ea diffusa with stems rarely more than 3 feet long; and a thick-stemmed succulent Portulaca n. sp. with small yellow flowers. Both of these plants grow fully exposed to the sun on the coral breccia and calcareous sand which surrounds the pisonia grove, and none are found under the shade of the trees. On the south side of Rose Islet the sand beach is reduced to from I to 5 feet in width at low tide, and clififs of coquina from 5 to 8 feet high front the sea. A few feet inland this rocky ledge rises to a height of about 11 feet above high tide level. The pisonia grove appears to be confined to this region of coquina rock and does not appreciably extend out over the loose calcareous breccia which has been washed in upon the islet in time of storm. The tree-covered rocky center of the islet is composed of a coquina consisting chiefly of wave-worn fragments of lithotham- nium, and also rare and occasional pieces of broken coral such as Favites, Porites, SympJiyllia, Pocillopora, and still more rarely Acropora. Imbedded in it are many wave-worn half-valves of Tridacna, and Gasteropod shells, and spines of Echini such as Cidaris were found, as was also the much-corroded ulna and part of the skull of a small Cetacean about the size of a black-fish, the latter being embedded in the coquina al)out 8 feet above high tide level. A lars:e amount of orijanic matter dark brown in color and derived 64 MAYOR— ROSE ATOLL, AMERICAN SAMOA. from the decomposed roots of the pisonia trees permeated this coquina to a depth of several feet. All of the fossils found im- bedded in the coquina are forms now living on the reef flat. Pro- fessor C. B. Lipman found that the coquina in contact with the soil contains 12.05 per cent, of phosphoric acid. On the wave-washed southeastern shore of Rose Islet some modern beachrock has been formed and projects a few inches above high tide level ; but this is more recent than the rocky matrix of the islet, which is now elevated about 11 feet above high tide level. Sand Islet, which lies north of Rose Islet, is a mere accumula- tion of fragments of lithothamnium, shells, and broken coral, and is devoid of vegetation, and only about five feet above high tide level. The sea must wash completely over it in time of storm. Several hundred boobies (Sula), most of which had half-grown young, were nesting on the coral breccia of Rose Islet, while others had constructed nests of sticks high among the branches of the pisonia trees. A few boatswain birds with eggs were also nesting in the trees, and several nearly grown young of the noddy (Anous) were running over the ground, while adult noddies and sooty terns visited the island at night. Frigate birds were hovering over the island, but none were nesting. Wilkes states that the noddies and sooty terns were nesting on Rose Islet on October 7, 1839, and these species were still nesting when Governor Terhune visited the island on January 10, 1920. A small brown-gray rat was abundant and specimens of it were presented to the Bishop Museum in Honolulu, where they were identified by Mr. J. F. G. Stokes as being a Malayan form which appears to have become widely spread over Polynesia, being prob- ably introduced by the early Polynesians themselves, who esteemed them for food, and took much delight in hunting them for sport. Apart from these very tame and abundant rats, the only other ani- mals we observed were a small brown short-tailed lizard, identified by Dr. Thomas Barbour as Lcpidodactylus lugubris, which is abundant in Polynesia, and the larva of a sphynx moth {Celerio Oken) feeding upon the portulaca. A few gnats and an occasional house fly, which may have been introduced from the U. S. S. I MAYOR— ROSE ATOLL, AMERICAN SAMOA. 65 Fortune, which cruised continuously around the island, there being no anchorage, were the only insects we observed. The upper surface of the atoll rim which encircles the lagoon is a hard smooth-floored flat, with but little loose sand upon it, and in most places it is awash at low tide, although in others it projects as a ledge about a foot above low tide of the reef tides. This hard, smooth surface of the atoll rim is veneered every- where by a layer of Hthothamnium, as is characteristic of the wave- washed surface of offshore and barrier reefs. The condition over the fringing reefs of the Pacific is quite different, for here loose fragments are washed inward from the seaward edge and backed up against the shore. Thus the whole surface, excepting only the wave-washed outer edge, is covered with small loose fragments which could not remain upon an atoll rim or a barrier reef, for they would soon be washed off into the lagoon. This loose nature of the material forming the shoreward parts of fringing reefs at once dis- tinguishes them from offshore reefs. Professor W. M. Davis's attempt, following Darwin, 1842, to institute a class of " offshore fringing reefs" is not justified, the structure of the two forms of reefs being widely different. As a matter of fact, reefs along shores are either barrier reefs or fringing reefs, and one is never in any doubt in distinguishing the one from the other. Hundreds of large blocks of limestone, of the sort called "negro heads " on the barrier reef of Australia, lie scattered over the flat wave-washed rim of Rose Atoll. These loose boulders are quite uniformly about 5^ feet high, and only when tilted are they any higher. In addition to the loose boulders there are a few others which are mushroom-shaped and still remain attached to the floor of the atoll rim, of which, indeed, they form an integral part. One of the most remarkable of these mushroom-rocks lies to the east- ward of Rose Islet, and is supported upon so slender a pedicel that it would seem as if the next storm must cause it to topple over. In many places over the flat wave-washed floor of the atoll rim one finds remnants of pedicels which once supported " mushrooms.'' In addition, some of the boulders have become secondarily cemented to the floor of the flat by the growth of hthothamnium around their 66 MAYOR— ROSE ATOLL, AMERICAN SAMOA. bases. The largest boulder we observed lay loosely upon the reef flat east of Rose Islet and was somewhat tilted by being jammed against another rock. It was 12 feet 5 inches long, 8 feet wide, and 7 feet 6 inches high, and as its specific gravity was 2.3, it apparently weighs 46 tons. The appearance of these boulders supports the view that the atoll rim was once about 6 to 8 feet higher than at present, and has been cut down to present sea level in recent times ; most of the mushroom- rocks having been completely undercut so that they now lie loosely upon the floor of the flat. It can be seen that the surface of the present reef flat consists chiefly of lithothamnium, a beautiful bright pink variety of which forms a veritable veneer over its surface. Professor Alexander H. Phillips made an analysis of this lithothamnium and found it to con- tain 74.4 per cent, of calcium carbonate and 19.47 per cent, mag- nesium carbonate. Also rock from the solid floor of the atoll rim west of the main entrance to the lagoon gave 83.86 per cent, of calcium carbonate and 14.36 per cent, of magnesium carbonate ; while a large loose boulder from the same region consisted of 77.28 per cent, of calcium carbonate and 18.3 per cent, of magnesium carbonate. Also, Professor C. B. Lipman found that the largest loose boulder on the reef flat east of Rose Islet contained 79.5 per cent, calcium carbonate and 14.54 per cent, magnesium carbonate. It will be recalled that Hogbom found the magnesium carbonate in various species of lithothamnium to range from 3.76 to 13.19 per cent., and Clarke and Wheeler'- found from 10.93 to 25.17 in 15 species, and thus the Rose Island species seems to be peculiar in possessing a fairly high magnesium content." It thus appears that the loose boulders lying upon the atoll rim have the same general chemical composition as the solid rock of the rim itself and are remarkable in that they contain a large amount of magnesium. In fact, these boulders are only remnants of the old rim which was once about 6 or 8 feet higher than at present, but has been almost entirely planed down to the lowered level of the 1 U. S. Geol. Survey, Prof. Paper No. 102, 1917. - See J. W. Judd, Funefuti Report, 1904, 1904, p. 377. MAYOR— ROSE ATOLL, AMERICAN SAMOA. 67 present surface of the ocean, leaving only an occasional mushroom- rock on a pedicel as a vestigial remnant of the old rim. Inspection shows that the solid rock of the atoll rim and also the boulders lying upon it consist chiefly of lithothamnium com- pacted into a dense mass of chalky whiteness superficially resembling dolomite, and having a specific gravity of about 2.3, thus being higher than that of pure coral limestone, the specific gravity of which would range from 1.85 to 2. A pure dolomite containing 45.65 per cent, of magnesium carbonate should have a specific gravity of about 2.9. There are a few fossil corals, chiefly Pocillopora, imbedded in the rock of the atoll rim and the boulders, but the whole visible rock of the atoll consists so largely of lithothamnium that we may call it a "lithothamnium atoll" rather than a "coral atoll." The flat upper surface of the atoll rim is in most places planed ofif nearly to low tide level, but it is veneered with a vigorous growth of a beautiful pink lithothamnium which has been provisionally de- termined by Professor W. A. Setchell as Porolithon related to P. craspcdium. In most places this lithothamnium forms irregular, more or less connected, patches growing on the smooth hard floor of the flat. West of the main entrance to the lagoon it grows in long nearly parallel, flat-topped, over-arching ridges all parallel with the line of the wave fronts of the breakers as they surge over the reef. These ridges are about 6 inches high and from 6 inches to several feet in width, and w^ith channels of similar width be- tween them. Lithothamnium grows in greater profusion over the reef rim of Rose Atoll than in any other Pacific reef I have seen ; but apart from the single species of pink lithothamnium there are remarkably few organisms growing in the shallows of the reef flat. Occasion- ally we find a pale-olive-green Poriies, allied to P. solida, and there are a few small stocks of Favitcs or Symphyllia; but Acropora and Pocillopora, which are the dominant forms in most breaker-washed reef flats of the Pacific, are practically absent from Rose Atoll, except at the extreme edges of the atoll rim fronting the lagoon on the sea, where a few stunted specimens of these genera occur. 68 MAYOR— ROSE ATOLL, AMERICAN SA^IOA. 1 did not find upon the Rose Atoll reef rim a single specimen of branched Acropora related to A. miiricata, nor did I see Acropora arena fa or A. leptocyathus, which are dominant forms on the sea- washed edges of reefs elsewhere in Samoa. Holothviria were fairly common, as were also small specimens of the giant clam Tridacna, and among echini a few Cidaris and black long-spined Diadciiia were seen; and the bright green seaweed Caulcrpa was here and there found in the troughs between the ridges of lithothamnium ; yet apart from the pink lithothamnium all other organisms were a negligible factor on the upper surface of the atoll rim. It is important to observe that among the hundreds of loose boulders, or " negro heads," scattered over the fiat upper surface of the atoll rim there are a few which still retain their connection with the floor and project above it as "mushroom" rocks, thus indicating either that the atoll rim has risen 6 to 8 feet or that sea level has sunken to this extent. The evidence, however, supports the view that sea level has become lowered, and not that the atoll rim has arisen ; for there is no visible tilting of the rim, and, moreover, all the volcanic islands of American Samoa are surrounded by a bench of volcanic rock which is uniformly about lo feet above present high tide level and is backed by volcanic sea cliffs, thus indicating that these islands have remained stationary while sea level has become lowered. In this connection it may be of interest to observe that with the exception of Mangareva, which is volcanic, and Alakatea, which is elevated, coral limestone, all of the atolls of the Paumotus exhibit a bench of old limestone now several feet above present high tide level. It will also be recalled that David and Sweet in their account of the Geology of Funafuti^ conclude that in this atoll there must have been either a land-elevation or a sea-sinking of at least 9 to lo feet. In 191 3 we observed a sea bench of about 3 feet around both the volcanic and continental islands of Torres Straits. As there are fossil corals and lithothamnium in the highest parts of the boulders and mushroom-rocks on the rim of Rose Atoll, it 2 Funafuti Report, 1904, p. 84. MAYOR— ROSE ATOLL, AMERICAN SAMOA. 69 appears that the cHmate was tropical when the sea stood at least 8 feet higher than at present and cut the bench around all the volcanic islands of American Samoa. In the Funafuti boring the percentage of magnesium in the core ranged from 4 per cent, at a depth of 4 feet to 16 per cent, at 15 and 26 feet, below which it declined to 3 per cent, at a depth of 60 feet. Judd attributes this high percentage of magnesivmi to the supposed leaching out of calcium by the sea water, but we now know that the surface waters of the tropical Pacific are super- saturated in respect to calcium carbonate, and that calcium car- bonate is therefore practically insoluble in this surface water. Judd admits that there is much lithothamnium in this upper part of the core of the boring, but unfortunately he made no analysis of the magnesium contents of any lithothamnia at present growing upon the Funafuti reef ; and. judging from the conditions at Rose Atoll, I am inclined to believe that the magnesiiun in this upper part of the Funafuti boring is due solely to its being largely composed of litho- thamnium, and not to any leaching out of calcium carbonate. This conclusion is supported also by the fact that in the Funafuti boring between 100 feet and 637 feet in depth the magnesium carbonate was nowhere greater than 5.4 per cent.; yet if calcium leached out in water about 26 feet deep, why did it not leach out at these greater depths where conditions of temperature and carbon dioxide are more favorable for solution than on the surface? Wilkes, 1852, Narrative of the U. S. Exploring Expedition, Vol. I, p. 155, states : Some boulders of vesicular lava were seen on the coral reef (of Rose Atoll) they were from 20 to 200 pounds in weight and were found among blocks of coral conglomerate. (See also Couthouy, 1844, Boston Journal of Nat. Hist., vol. 4, p. 138.) I was unable to find any volcanic rock upon Rose Atoll, and it seems probable that Wilkes or Couthouy mistook some dark-col- ored scoreaceous-looking, weather-worn limestone boulders for lava. Summary. The visible parts of the rim of Rose Atoll is composed of litho- thamnium rather than of coral, and is apparently chiefly constituted 70 MAYOR— ROSE ATOLL, AMERICAN SAMOA. of the same pink-colored species of lithothamnium (Porolithon) now found growing over the shallows of the reef fiat. The atoll rim was once at least 8 feet higher than at present, and has been cut down to present sea level by the lowered ocean of modern times. In common with Rose Atoll, all the volcanic islands of American Samoa indicate that sea level was once at least 8 feet higher than at present. The rock of the atoll rim contains from about 14 to 19 per cent. of magnesium carbonate, due to its being composed largely of litho- thamnium, but not due to any appreciable dolomitization of the limestone after its formation. As fossil corals and lithothamnium are found in the highest parts of the remnants of the old atoll rim, it appears that the climate of American Samoa was tropical at the time when the rim stood at least 8 feet higher than at present. TOBIT'S BLINDNESS AND SARA'S HYSTERIA. By PAUL HAUPT. (Read April 23, igsi.) In the apocryphal book of Tobit, which seems to have been written by a Persian Jew for the encouragement of his coreligionists in Palestine at the beginning of the Maccabean rebellion about b.c. 167, we read that Tobit's son, Tobias, cured his father's blindness with the gall of a fish he had caught in the Tigris, while the liver and the heart of that fish, burned on embers of incense, expelled the demon Asmodeus who had tormented Tobias's bride, Sara, for years. This demoniacal possession may have been hystero-epilepsy : hysterics and epileptics were supposed to be possessed by demons (cf. Mark 9, 17-26). The " New Standard Dictionary" says that in Lesage's opera( !) " Le Diable Boiteux " Asmodeus is the name of the demon who conducts Don Cleofas in his nightly adventures. In this satirical novel, which appeared in 1707, Asmodeus is identified with the capricious god of sexual passion, Cupid, and his lameness is said to be due to the fact that he had an encounter in France with the demon of selfishness, Pillardoc. The fight was fought in the aerial regions, and Asmodeus was hurled to earth. Cupido is a personi- fication of desire, passion, concupiscence which is symbolized in the Biblical story of the Fall of Man by the Serpent (PAPS 50, 505).^ 1 AAJ = Haupt, " The Aryan Ancestry of Jesus " (Chicago. loog) = The Open Court, vol. 23, pp. 193-209. — A'^'P =^ American Journal of Philology. — A.]Sl^ = American Journal of Semitic Languages. — ASKT = Haupt, " Ak- kadische und Sumerische Keilschrifttexte." — BA = " Beitriige zur Assyrio- logie." — AV^Authorized Version. — BK = Brockhaus's " Konversations-Lexi- kon, Neue revidierte Jubilaums-Ausgabe." — BL = Haupt, " Biblische Liebes- lieder " (1907). — BT^ Lazarus Goldschmidt, " Der babylonische Talmud." — CD = Century Dictionary. — DB =: Hastings, " Dictionary of the Bible." — EB ^ Cheyne-Black, "Encyclopaedia Biblica." — EB^i = " Encyclopaedia Britan- nica," eleventh edition. — ET = Expository Times. — GJV = Schiirer, " Ge- schichte des jiidischen Volkes." — JAOS = Journal of the American Oriental 71 72 HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. The common opinion that Asmodeus is depicted in the Tahnud as lustful and sensual is unfounded. Nor does the Book of Tobit state that Asmodeus was enamored of Sara. Also in the twelfth canto (1. 6600) of Wieland's romantic epic " Oberon," which was published in 1780, Asmodi is identified with Cupid. The libretto of Weber's famous opera " Oberon " was adapted by the English dramatist and antiquary, James Robinson Planche, from Wieland's " Oberon." Wieland's poetic masterpiece is based on the old French chanson de geste of " Huon de Bor- deaux," which we have in a beautiful illustrated adaptation in mod- ern French by Gaston Paris (1898). The old French text was edited by Guessard and Grandmaison in i860. The fairy dwarf Oberon (Old French "Alberon") is identical with Alberich in Wagner's " Nibelungen " and the " Erlkonig " of Herder, Goethe, and Schubert. Alberich means king of the elves, and Herder's " Erlkonig " is due to a misunderstanding of the Danish ellerkonge, which does not mean king of the alder-trees, but king of the elves. Dan. ellerkonge stands for elverkonge, with progressive assimilation of the V. In Jewish legends the lameness of Asmodeus is explained dif- ferently. Asmodeus is said to have been captured by Solomon's captain of the host, Benaiah ben-Jehoiadah. On the way to Solo- mon the demon brushed against a palm-tree and uprooted it ; he knocked against a house and overturned it. When, at the request of a poor woman,, he turned aside from her hut, he broke a bone. He wept when a bridal procession passed by, and laughed at a man who Society. — ^JBL = Journal of Biblical Literature. — JE = " Jewish Encj^lopae- dia." — JHUC = /o/n;.y Hopkins University Circular. — ]QR = J ezvish Quar- terly Review. — ]SOR^= J our)ial of the Society of Oriental Research. — MK = Meyer''s " Konversations-Lexikon."— OLZ = " Orientalistische Literaturzei- tung."- — FAPS ^= Proceedings of the American Philosophical Society. — RB = Riehm-Bsethgen, " Handworterbuch des biblischen Altertums." — RE^ = " Real- encyklopadie fiir protestantische Theologie und Kirche." — RV = Revised Ver- sion.— WZKM = " Wiener Zeitschrift fiir die Kunde des INIorgenlandes." — ZDMG = " Zeitschrift der Deutschen Morgenlandischen Gesellschaft." — Cant.=z'H.aupt, "The Book of Canticles" (Chicago, 1902) = AJSL 18, 193- 245; 19, 1-32.— £.?/. = Haupf, " The Book of Esther " (Chicago, 1908) = AJSL 24. 97-186. — Nah.= Haupt. "The Book of Nahum " (BaUimore, 1907) =JBL 26, 1-53. — Pur. = Haupt, " Purim " (Leipsic, 1906) = BA 6, part 2. HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. 73 asked his shoemaker to make him a pair of shoes which would last for seven years, also at a magician who was exhibiting his skill. When Solomon questioned him about his strange conduct on the journey, he replied that he judged persons and things according to their real character, and not according to their appearance in the eyes of men. He cried when he saw the bridal procession, because he knew the bridegroom had not a month to live ; and he laughed at the man who wanted shoes which would last for seven years, be- cause he knew the man would not wear them for seven days. In this respect he corresponds to Asmodce in Lesage's " Le Diable Boiteux." Asmodeus dwelt on a mountain. He went to heaven every day to take part in the discussions at the celestial house of study. Then he descended again to earth to be present, invisibly, at the debates in the earthly seats of learning. This may explain the malice we often notice in learned discussions. In the Christian pseudepigraph, " The Testament of Solomon " (translated by Conybeare in JQR ii, 1-45), Asmodeus answers Solomon's question concerning his name and functions as follows : I am called Asmodeus among mortals, and my business is to plot against the newly-wedded, so that they may not know one another. I sever them utterly by many calamities. In this respect Asmodeus corresponds to Oberon in Wieland's poem, but the calamities which befall Huon and his spouse are merely disciplinary trials, just as Job's suffering is but a test of his faith in God. Asmodeus tells Solomon : I waste away the beauty of virgins and estrange their hearts ... I transport men into fits of madness and desire when they have wives of their own, so that they leave them, and go off by night and day to others that belong to other men, with the result that they commit sin and fall into murderous deeds (JE 2, 217-220). The first mention of Asmodeus is found in the Book of Tobit — i.e., about 167 B.C. Sennacherib in the Book of Tobit represents Antiochus Epiphanes of Syria (175-164 B.C.), who appears in the Book of Daniel, which originated about the same time, as Nebuchad- nezzar. The Second Book of the jNIaccabees (9, 15) says that Antiochus Ephiphanes had judged the Jews not worthy so much as 74 HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. to be buried, but to be cast out with their children to be devoured by the birds and wild beasts. In connection with the account of the murder in one day of sixty Assideans (i.e., orthodox Jews) at the hands of the Hellenizing high priest Alcimus (i6i B.C.), i Mac. 7, 17 quotes some lines of Ps. 79: The flesh of Thy saints and their blood have they shed round about Jerusalem, and there was none to bury them. This Maccabean poem, which consists of four triplets with 3 + 3 beats, may be translated as follows : Psalm 79. 1 "^ Thy estate has been entered by heathen who defiled Thy holy Temple "^ 2 And gave Thy servants' bodies as food to the birds of the air; ^ *^' 3 They shed their blood like water round about Jerusalem. " 4 We became a scofif to our neighbors, the ^ butt of those round about us. 5 How long, O Jhvh, wilt Thou rage,'^ and Thy passion burn like fire? 6 Pour out Thy wrath ^ over realms that do not invoke Thy name. 8 Our father's sins charge not to us, may Thy mercy soon come to meet us ! ^ 9 Aid us, O God, our Help, for the sake of the glory of Thy name ! ' 10 Why should the heathen say : where is that God of theirs? In our sight manifest on the heathen revenge for Thy servants' blood shed by them ; "'" 12 Into their bosom sevenfold render " the insults wherewith they insulted Thee.P 13 Then we,i the flock of Thy pasture, will thank Thee for ever and ay.'' (a) I Asaphic Psalm (b) O God (c) and laid Jerusalem in ruins (d) 7 They devoured Jacob, laid waste his homestead. (c) 2 The flesh of Thy saint's to the beasts of the land. (/) 3 and there is none to bury them (g) 4 derision and HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. 75 (/i) 5 for ever? (i) over the heathen who do not acknowledge Thee and (/c) 8 for we are very wretched (/) 9 Save us and forgive us our sins for the sake of Thy name. (ni) II Let the moan of the prisoners come before Thee. (n) With Thy great power preserve those doomed to death. (o) 12 to our neighbors (p) O Lord (q) Thy people and (r) IS And to all generations rehearse Thy glory. Into their bosom in v. I2 means into their lap; cf. Luke 6, 38; Is. 65, 7; 2 K 4, 39; Ruth 3, 15 ; see my paper " Abraham's Bosom " in AJP 42, 163 ; Lazarus was not carried by the angels into Abra- ham's bosom, but into Abraham's lap; Michel Angelo's famous marble group Pieta at St. Peter's in Rome shows the Virgin with the body of the dead Christ on her lap (see pi. ix, no. 13, at the end of MK'' 2). The best English translation of the Book of Tobit is given in " The Apocrypha and Pseudepigrapha of the Old Testament in English," with introductions and critical and explanatory notes to the several books, edited in conjunction with many scholars by R. H. Charles (Oxford, 1913). Tobit has been contributed by D. C. Simpson, of Manchester College, Oxford. He gives an elaborate critical apparatus, but hardly any explanatory notes. In his learned introduction he states (p. 183) that the book is certainly pre- Maccabean, and that it probably emanated from orthodox Jewish circles in Egypt. Although this view is endorsed by a number of distinguished Biblical scholars, I believe that the book was written by a Persian Jew for the encouragement of his coreligionists in Palestine at the beginning of the Maccabean rebellion, about B.C. 167, just as I pointed out six years ago (OLZ 18, 71 ; JSOR 2, yy) that Gen. 14 was written by a Babylonian Jew for the inspiration of the followers of the Davidic prince Zerubbabel who rebelled against the Persians at the beginning of the year 519 B.C. {cf. JBL 37, 210; contrast E. Naville, "The Text of the Old Testament," London, 1916, p. 30). We need not suppose that the story of Tobit was brought to Egypt by Persian soldiers of Cambyses (Simpson, p. 194, n. 3). If Tobit had been written in Egypt, the author would not have said that when Asmodeus smelled the liver and the heart of the fish, which Tobias had put on the embers of the incense, he fled into the upper parts of Egypt (Tob. 8, 3). PRQC. AMER. PHIL. SOC, VOL. LX, F, DEC. 20, I92I. 76 HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. The Syrian persecution was regarded as a chastisement for the sins of the chosen people.^ Tobit says in 13, 9: O Jerusalem, thou holy city, He will chastise thee for the work of thy hands, and will again have mercy on the sons of the righteous ; and in v. 12 : Cursed shall be all they that shall speak a hard word ; cursed shall be all they that demolish thee, and throw down thy walls, and all they that overthrow thy towers and set fire on thy habitations. This is di- rected against the Syrians: in 168 b.c. Antiochus Epiphanes's chief collector of tribute plundered Jerusalem, set it on fire, pulled down the houses and the walls on every side. Tobit (13, 14) says: Blessed shall be all the men that shall sorrow for thee for all thy chastisements, because they shall rejoice in thee and shall see all thy joy forever. Jerusalem shall be built again as His house unto all the ages. In Tobit's last words to his son (14, 4) : I believe the word of God upon Nineveh, which Nahum spake, that all those things will be, and will befall Assyria and Nineveh, Assyria stands for Syria, and NineveJi for Antioch. The Book of Nahum is a liturgical compilation for the celebration of Judas Maccabseus's glorious victory over Nicanor on the 13"^ of Adar, 161 B.C. The first two poems are Maccabean, but the last two were written by an Israelitish poet who saw the fall of Nineveh in 606 b.c. (Nah. i). Grotius (1644) had correctly conjectured that Jonah had been in- serted in place of NaJiuni in Tob. 14, 4 under the influence of Jon. 3, 4 (Simpson 239, 4). The Sinaiticus reads Nahum instead of Jonah. In the abstract of a paper. " The Site of Nineveh in the Book of Tobit," which Professor Torrey, of Yale, intended to present at the meeting of the American Oriental Society held at Cornell University in 1920, it was pointed out that in the longer (and older) version of Tobit, Tobias and the angel, as they come near to Nineveh on their return from Ecbatana, passed through another city lying just across the river ; several converging lines of evidence indicate that the Nineveh of the story is Seleucia with its sister city Ctesiphon lying opposite ; the actual site of Nineveh was not known at that time. As stated above, Assyria is used in Maccabean texts for Syria, and 2 Cf. Tob. 13, 5. 9 and 2 Mac. i, 27-29; 6, 12-16; also Tob. 13, 12 in Simp- son's translation and I Mac. i, 31; finally Tob. i, 17-19; 2, 7; 12, 12, 13 and 2 Mac. 9, 15; I Mac. 7, 17. I HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. 77 Nineveh for Antioch on the Orontes, which was founded as his chief seat of government by Seleiicus Xicator after the battle of Ipsus in 301 B.C. Also Seleucia on the Tigris, opposite Ctesiphon on the left' bank, c. 50 miles north of Bab3ion, and 15 miles south of Bagdad, was founded by Seleucus Nicator {cf. Streck, " Seleucia und Ktesi- phon," Leipsic, 1917). Tobit can not have been written in the days of Sennacherib c. 700; it must have been composed by a Persian Jew c. 170 B.C. Also the Book of Esther was written by a Persian Jew c. 130 B.C. On the other hand, the so-called Third Book of the Maccabees is an Egyptian festal legend for the feast of Purim, while the Book of Judith is a Palestinian Purim legend {Pur. 7 ; Est. 2). It has been observed that the Book of Tobit has an Iranian back- ground. This was discussed by J. H. Moulton in ET, March, 1900. An excursus on Magianism and the Book of Tobit is attached to Lecture II in Moulton's Hibbert Lectures delivered in 1912. Tobit's daughter-in-law lived in Ecbatana, the present Hamadan, near the foot of Mt. Elvend, 188 miles southwest of the capital of modern Persia, Teheran. Even now one tenth of the inhabitants of Llama- dan are Jews. The town contains the alleged sarcophagi of Esther and Mordecai, also the tomb of the great Arabian physician and philosopher Avicenna who died in 1037 a.d. Tobit had deposited money in Rages, the Avestan Rhaga, which is mentioned in the Behistun inscription of Darius Hystaspis (2, 13): the Aledian Phraortes, who had rebelled against Darius in 522, fled to Raga, but was captured and impaled in Ecbatana (Weissbach, " Achameniden," pp. 39, 153). The name survives in the huge ruins of Rai, situated some 5 miles southeast of Teheran (DB 4, 193; EB 4005). It was one of the strongest fortresses of the Persian empire. The ruins occupy a space about 4.500 yards long by 3,500 broad. A historical sketch of Ragha, the supposed home of Zoroaster's mother, has been given by Professor Jackson, of Columbia University, in the Spiegel ]Memorial Volume, published at Bombay in 1908. Asmodeus, the name of the demon who killed the seven bride- grooms of Sara until Tobit's son. Tobias, expelled him, is the Per- sian Aeshma-dewa. This was pointed out long ago by Benfey in 78 HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. his book on the names of the months (1836). Aeshma is the Avestan demon of rage and anger. In Pahlavi writings we find: The impetuous assailant Wrath (Aeshm), when he does not succeed in causing strife among the righteous, flings discord and strife among the wicked, and when he does not succeed as to the strife even of the wicked, he makes the demons and fiends fight together. Aeshma is not linked with dewa in the Avesta, but in Pahlavi we find khashm-dciv, the second element being expressed by the Aramaic seda, demon (RE^ 2, 142, 1. 49). Daezva means demon, devil. The pronunciation da'cva is incorrect. In German the diphthong ai^ is written ai, but the final sound is really e, not i ( JAOS 2)7, 322, n. 12) . In Hebrew, AcsJimadaewa appears as Ashmedai = Aismadain : the first syllable Aish became ash, just as Syr. aik, how, is pronounced ak, and daezva was shortened to daL In the Talmudic idiom final consonants are often dropped; e.g., tub and nesdb become tu, nesd (Margolis § 4, o). A for ai^ appears in certain German dialects, e.g., aner, kaner for ciner, keiner. According to Justi, Aeshma is connected with isJi, to drive, from which ishu, arrow, is derived ; he combined it 25 years ago with Skt. ishmm (RE^ 2, 142, 1. 42). This, however, does not mean driving, stormy, but armed zvith arrozvs (JAOS 31, 50). In the Old Testament, Aeshma appears as Ashima which is given in 2 K 17, 30 as the name of an idol wor- shiped by the people of Hamath, i.e., the ancient capital of Galilee at the hot springs south of Tiberias on the Sea of Galilee (not Epi- phanea on the Orontes, north of ii/o7nj-=Emesa, southwest of Aleppo). For the transposition of the i in Ashima we may compare Lat. a.y/;nf5=Sumer. ansi, ass (ZDMG 69, 170, n. 3; OLZ 18, 203; AAJ 7; WZKM 23, 365). Both asinus and ovn: are Oriental loan- words, but they can not be derived from the Semitic atan, she-ass. Nor is the combination of ouo:: (beast of burden) with onus, bur- den, and di^ca (JEo\. ov'ta), burden, heaviness, grief, sorrow, satis- factory. We have a similar transportation in Jamaica, whose In- dian name was Jaymaca (EB" 15, 134''), or Haimaca, land of woods and water (BK 9, 864*^). Also the part played by Tobias's dog is distinctly Aryan. In the Old Testament, the dog is regarded as an unclean animal. In the I HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. 79 Talmud we read that no one should keep a dog unless it be chained, and Rabbi Eliezer said : Ham-meg add cl kclabim kam-mcgaddel hdsnhn, a man who raises dogs is like a man who raises hogs (BT 6, 299, 19). In the Book of Tobit, Tobias's dog accompanies his young master on his journey and follows him when he returns to his parents in Nineveh after having cured his bride. In the Aramaic and Hebrew versions of the Book of Tobit the dog is omitted. Ac- cording to some Catholic exegetes, Tobias's dog represents the Keeper of Israel ; Raphael : the Alessiah ; and Sara : the Church of the New Testament ! Tobias also cured his father Tobit who had lost his sight when he was 58 years old. He recovered it after he had been Wind for eight years. The cure of his blindness is said to have been effected by the gall of a fish which Tobias had caught in the Tigris. The liver and the heart of that fish, burned on embers of incense, ex- pelled Asmodeus, who had tormented Sara for years. The blindness of Tobit seems to be a subsequent exaggeration, also the number of the husbands of Sara who were killed by Asmodeus before they could enjoy their connubial bliss. In the Talmud we are told that no woman might marry again whom death had bereft of three husbands in succession (Ycbamoth 64^; Niddah 64^^). In some parallels to the story of Tobias and Sara the number of the former husbands killed in the wedding-night is not seven, as in the Book of Tobit, but five or three. In an Armenian legend a well-to-do man, riding through a forest, finds some men treating a dead body rather unceremoniously. They tell him that the dead man owed them money. He pays the debts and buries the body. Afterwards he is impoverished. In his native town there is a rich man with an only daughter. She had been married five times, but her husbands had always died the first night after the marriage. An unknown servant advises him to marry the widow. In the wedding-night a snake comes out of the mouth of the bride and threatens to kill him. The unknown servant, who has been on guard, kills the snake and saves the groom. The unknown servant turns out to be the dead man whom he had buried in the forest. In a Russian story a man buries his brother. He is married to 80 HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. the daughter of a merchant, whose two former husbands had per- ished in the bridal night. The dead brother is on guard in the bridal chamber and slays the dragon which threatens to kill the groom (GJV* 3, 241). Seventeen variants of the fable of the Grateful Dead were given by Simrock in " Der gute Gerhard und die dank- baren Toten " (Bonn, 1856). Dr. Ember called my attention to some similar stories in the Talmud and the Midrash Tanhiima. At the end of the tract Shabbath (156^; BT i, 716, 1. 24) we read : Rabbi Aqiba had a daughter. Astrologers had told him that when she would enter the bridal chamber, a snake would bite her, and she would die. He was much disturbed by this prediction. On that day she took the (nuptial) crown and stuck it into the wall, and it chanced to strike the eyes of a snake. When she pulled out the crown in the morning, the snake was affixed to it. Her father asked her. What did you do? She told him. In the evening a poor man called at the door. All the people were busy with their meal, so that no one heard him. But I got up and gave him my portion you had given me. He said to her. Thou hast done a good deed. Then Acjiba went out and preached : Righteousness delivers from death, not only from a natural death, but also from an unnatural death. RigJitcousncss delivers from death is a quotation from Prov. 10, 2. In this story the bride, not the bridegroom, is threat- ened with death in the wedding-night. The name Akiba is familiar to us, because a rabbi Ben Akiba figures in Gutzkow's tragedy "Uriel Acosta." Acosta committed suicide in 1647. Spinoza was about fifteen at that time. But the Talmudic Rabbi Aqiba was tortured and killed by the Romans in 135 A.D. after Hadrian's suppression of the Jewish rebellion under the leadership of Barcochebas who was recognized by Rabbi Aqiba as Messiah. Over half a million Jews were slaughtered at that time. Hadrian had forbidden circumcision as illegal mutilation. He de- stroyed Jerusalem and founded a Roman colony, JElia Capitolina, on the site of the holy city. He also replaced the Temple of Jhvh by a temple of Jupiter (EB" 15, 402''), Lazarus Goldschmidt translates hairpin instead of crown, and knocked at the door instead of called at tlie door; but niakbanta, which Dalman renders necklace, HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA, 81 is connected with Syr. kchlntd, hood, perhaps also with Arab, mijnah, veil (see the cuts in RB 1427/8; DB i, 628; CD 671 1^ cf. CD 1273'', below; Cant. 31, n. 19; BL 44; also JAOS 41, 34, n. 23 and n. 35). Qara abbabd does not mean he knocked at the door,hvX he called ; a caller denoted his presence at the door by a call. Tanhuma bar-Abba lived about the middle of the fourth century, but the parallel to Tobit is not found in the oldest form of the Midrash Tanhuma, which was edited by Solomon Buber in 1885; it is printed at the end of the second volume of the Warsaw edition (p. 124). It is also given, in a slightly abridged and modified form, in N. Lewin's Talmudic chrestomathy " Mewo Hatalmud," Wilna, 1907, pp. 14-16. It is there entitled sdson tdliath chel, Joy instead of Grief (Tob. 7, 16). This story (which is ascribed to Moses had- Darshan. of Narbonne, the teacher of the compiler of the great Talmudic dictionary, known as 'Ariikh, R. Nathan, w^ho died at Rome in 1106) was given in Hebrew (according to the Mantua edition of 1563) and in English in Adolf Neubauer, "The Book of Tobit" (Oxford, 1878). Neubauer's book was inaccessible to me when I prepared my translation which is based on the text in " Mewo Hatalmud " ; but I have not deemed it necessary to make any changes ; the omissions and additions in " Mewo Hatalmud "' are immaterial. The Aramaic version published by Neubauer is not the original Aramaic text of the book, but a later version made from the Greek. It can hardly be older than the seventh century a.d. Simi- larly the Hebrew text of Ecclesiasticus, which was discovered about 25 years ago, .is not the original text, but a retranslation from the Greek or the Syriac versions (JAOS 40, 219, below). The haggadic story at the end of the " IMidrash Tanhuma " may be translated as follows : There was a rich wise man with an only daughter who was very beautiful and pious. She had been married thrice, but on the mor- row of the wedding her husbands were always found dead. There- fore she made up her mind to remain a widow. Her father had a brother in another city, who was very poor, but he had ten sons. Every day he and his eldest son brought bundles of wood from the forest and sold them. In this way he supported 82 HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. himself and his family. One day they had not sold anything, so they had no money to buy bread, and they had nothing to eat that day. When they went to the forest the next morning, the father felt faint. The son shed tears over their misery and lifted his eyes to heaven. On that day he took leave of his parents and went to the city of his uncle. When he came to his uncle's house, his uncle was very glad to see him, as were also his wife and his daughter. They asked him about his parents and his brothers. After a week the young man said to his uncle, I have one request, do not refuse it. His uncle said. What do you want? The young man said, Swear that thou wilt do what I ask of thee. His uncle did so. Then the young man said, This is what I ask of thee : give me thy daughter to wife. When the man heard this, he wept and said. No, my son, no ; so and so is her way on account of my sins. ... If thou art anxious to have her for the sake of my wealth, thou must not marry her; I will give thee silver and gold in abundance. The young man said, Thou hast sworn to .fulfil my request. When the rich man saw that he insisted on it, he consented. He went and told his daughter about it. When she heard this, she wept and cried bitterly. She lifted her eyes to heaven, saying, Lord of the W^orlds, may Thy hand be upon me, but let not him die on my account. On the following day the rich man gave a feast to which he in- vited the elders of the city. He prepared a bridal chamber, and the young man remained in it. At that time there came to him an old man — it was Elijah of blessed memory — who called him aside and said to him. My son, let me give you some good advice ; do not dis- regard it. When thou sittest down to eat, a poor man will come to thee, clad in black and tattered garments; there is none like him in the whole world. When thou seest him, rise from thy seat and make him sit beside thee. Give him to eat and drink, pay him all possible attention, and honor him. Look out lest thou disregard anything I have told thee, then no harm will come to thee. But I must go away. When the old man had left, the bridegroom went to his place and sat down at the feast. After they had begun to eat, that poor man I HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. 83 came. As soon as the bridegroom saw him, he got up from his place and did for him all the old man had told him. After the wedding-feast the poor man called the bridegroom, took him to a chamber, and said to him, My son, I am a messenger of God ; I have come here to take thy life. The bridegroom said, Aly lord, give me time, a year or half a year. The old man said, I can not do that. Then the bridegroom said. Give me a month or the week of the wedding. The old man said, I can not give you even one day. The bridegroom said, I pray thee, wait for me until I take leave of my wife. The old man said. This I will grant ; go, but come back soon. So he went and found her in her room alone. She was weeping and praying to the Lord. When the bridegroom called her, she said to him. My brother, why dost thou come here? He said, To take leave of thee, for my time has come to go the way of all the earth ; the angel has come to take my life. She said. Thou must not go; I shall go and talk to him. So she went, and when she found him, she said to him. Art thou the angel who hast come to take my husband's life? He said to her. Yes. She said to him. He must not die now ! It is written in the Law, When a man takes a wife, he shall not go out in the host, neither shall he be charged with any business ; he shall be free at home one year, and shall cheer up his wife which he has taken.- — - This is stated in Deut. 24, 5. No military service or other public duty was to be imposed upon a man during the first year after his marriage ; he was to be exempted from other duties, and free to attend to the interests of his new home. In i Mac. 3, 56 we read that before the battle of Emmaus in 166 B.C. Judas Maccabseus com- manded that such as were building houses, or had betrothed wives, or were planting vineyards, or were fearful, should return, every man to his own house, according to the Law ; cf. Deut. 20, 5-8 ; Jud. 7, 3.— The bride said to the Angel of Death, The Holy One, blessed be He, is true, and His Law is true. If thou take his life, thou givest the lie to the Law. If thou accept my words, it is good; but if not, come with me to the great tribunal, that we may be judged. Forth- with the Holy One, blessed be He, rebuked the angel, and he went awav. 84 HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. The parents of the bride were in their room weeping. When midnight approached, the man and his wife arose to prepare a grave for their son-in-law before daybreak. ... At daybreak they heard the bridegroom and the bride laughing and rejoicing; so they went to the chamber to see how things were. When they saw them, they, too, were overjoyed, and they told this thing to the congregation and praised God. — Also Tobias's father-in-law had dug a grave for the bridegroom in the night after the wedding, but when he found in the morning that his son-in-law was alive, he bade his servants fill the grave. Instead of the prophet Elijah in the Alidrash Tanhuma or the grate- ful dead in the Armenian legend we find in the Book of Tobit the angel Raphael. In Tob. 3, 17 we are told that Raphael was sent to heal both Tobit and his daughter-in-law, Sara, that is, to scale away the whiteness of Tobit's eyes, and to give Sara, the daughter of Raguel. for a wife to Tobias, the son of Tobit, and to bind Asmo- deus, the evil spirit. Raphael means God healed. He is one of the seven angels who stand and serve before the throne of God's glory, presenting the prayers of saints. Raphael acted as Tobias's guide on his journey from Nineveh to Ecbatana. He claimed to be Azariah, a kinsman of Tobit, and accepted a remuneration of one drachma per day for his services. He brought Tobit's money from Rages, while Tobias and Sara celebrated their wedding in Ecbatana for two weeks. He had advised Tobias to put on the embers of incense in the bridal chamber the heart and the liver of the fish he had caught when it leaped out of the Tigris and would have swallowed him up, while he was bathing in the river. The fumes drove Asmo- deus away, so that their connubial bliss was not disturbed. Sara's demoniacal possession may have been a case of hystero- epilepsy. In the New Testament, hysterics and epileptics are re- garded as demoniacs. In Mark 9, 18 we have the description of an epileptic cured by Jesus. The boy is said to be torn by a spirit. He foams and gnashes with his teeth. When he saw Jesus, straightway the spirit tore him, and he fell on the ground, and wallowed foaming. The father told Jesus that the boy had had these fits from an infant. Ofttimes the spirit had cast him into the fire and into the waters, to HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. 85 destroy him. Jesu.s rebuked the foul spirit, saying, I charge thee, come out of him, and enter no more into him. When the spirit came out of him, the boy was as one dead ; insomuch that many said, He is dead. Epilepsy was called morbus dccmoniacus. The Sumerian name for disease is entrance, ingress, invasion. Diseases were regarded as due to the invasion of the body by evil spirits (JSOR i, 7). In Sumerian incantations (ASKT 98, xxvii) we read, May the goddess of the netherworld, the consort of Ninazu, set her face toward an- other place. ]\Iay the evil Utuk go out and stand aside. May the propitious genius, the propitious guardian angel establish themselves in his body. — Even modern physicians believe in demoniacal posses- sion. Sir Risdon Bennett, M.D., LL.D., F.R.S., ex-President of the Royal College of Physicians, says in his book, " The Diseases of the Bible"- (London, 1896), p. 82: Whether there be in the present day such a thing as demoniacal possession, in the sense in which it was understood in the time of our Lord, we are not called upon to enquire ; although it may be admitted that there is not a little in the manifestations of many cases of lunacy that may well give rise to the question whether Satanic agency has not some part therein. Religious men of the most irreproachable character, and women of unsullied purity of thought and habit, will use language, entertain ideas, and manifest conduct altogether opposed to their character in a sane state, and which become the source of the utmost pain and distress of mind when restored to reason. — If they do these things in a green tree, what shall be done in the dry ? We believe now that the pathogenic agents are certain bacteria or protozoa which have gained entrance to the human body. A contagious disease is an invasion of vegetable and animal parasites. Some medical men call these micro-organisms in true Babylonian style messengers of destruction and death, adding that the battle too often ends in favor of the attacking enemy. Just as the Babylonian priests tried to drive out the demons of disease, so our medical men speak now of driving the comma bacillus out of rooms by means of light and fresh air (JSOR i. 8). In the New Testament, epileptics are regarded as demoniacs. In 86 HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. Matt. 17, 15 RV has substituted epileptic for the term lunatic of AV. The Greek text has (reArjuid^sra:. The term lunatic is, of course, inappropriate. A lunatic is not moonstruck, his mind is not affected by the hght of the moon, nor is intermittent insanity subject to the changes of the moon. In German, mondsiichtig denotes a sleep-walker or somnambuhst. If Sara ahvays had in the wedding-night an epileptic seizure fol- lowed by a fit of hysterics, such an attack would not have killed her husbands, but it might have killed their love for her, and they might have disappeared as speedily as possible. Sara may have married at the age of fifteen,^ and if she had a new husband every year for seven years, she would have been 22 when she decided not to marry again, and she may have been 25 when Tobias came. Hysteria. is especially frequent in girls between the ages of 15 and 25. An epileptic fit is characterized by a sudden loss of consciousness attended with convulsions. The seizure is usually preceded by a loud scream. The eyes roll wildly, the teeth are gnashed together; foam, often tinged with blood, issues from the mouth, while the contents of the bowels and the bladder may be ejected. The attack is followed by drowsiness and stupor, which may continue for sev- eral hours, or a hysterical attack may occur as an immediate sequel to an epileptic fit. The eyes may then be tightly closed, with the body and limbs rigid, and this stage may be followed by violent struggling movements. The chief remedies for hysterics are asafetida and valerian. 3 See JHUC, No. 316, p. 24; BL in. The Belgian wife of a Canadian soldier, Harry W. Martindale, was ten years old when she married him, in 1917, on a Belgian battlefield; their first child was born when she was twelve and a half (Baltimore News, April 29, 1921, p. 34, col. 3). Napoleon's mother was fourteen when she married in 1764; her first son was born in 1765. Van Dyck's daughter Justiniana, who was born eight days before his death on December 9, 1641. was married when scarcely twelve j^ears old. Lucrezia Borgia was married in 1493 when she was thirteen. Mme. Recamier (1777- 1849) was married at fifteen. The Marquis de Rambouillet was married at twelve years old. La Rochefoucauld was married before he was fifteen; he joined the army before he was sixteen. Henry VIII's elder brother was mar- ried to Catherine of Aragon, the daughter of Ferdinand and Isabella, when he was a youth of scarcely fifteen. Alexander I of Russia (1777-1825) was married to Maria Louisa of Baden in 1793, before he was sixteen (KB" 4, 192*; 27, 891"; 4, 249"; 22, 951". 873'' ; 16, 220"; 23, 16"; I, 559"; 17. 755, n. 3)- HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. 87 Asafetida is found especially between the Aral Sea and the Persian Gulf. The Romans called asafetida laser Syriacum or Persicum. The Greek name was d~o; Mr/lr/nc. Laser Cyrenaicum was a gum- resin obtained from the north of Africa, and greatly appreciated by the ancients as an antispasmodic, deobstruent, and diuretic. It is supposed to have been produced by Thapsia Garganica, the deadly carrot. The amber-yellow resin prepared in Algeria from Thapsia Garganica is called bon-nafa resin. Lascrpitium latifolium, the herb-frankincense or laserwort, is a native of mountainous districts in Europe. The root abounds with a gum-resin, which is acrid and bitter, and is said to be a violent purgative. Laser Cyrenaicum was fragrant; it is therefore known as asa dulcis. The same name is given to benzoin or gum benjamin, i.e., the concrete resinous juice of the benjamin-tree of Sumatra, Java, and the Malay peninsula. It is used in incense in Roman Catholic and Greek churches. It forms the medicinal ingredient of court-plaster, so called because originally applied by ladies of the court as ornamental patches on the face. The tree is known as Styrax Benzoin. Benzoin or ben- jamin is a corruption of Arab, liiban Jazvah, incense of Java.^ The fiist syllable. In, was mistaken for the article. The earlier form of benzoin is benjoin, which is preserved in French. The botanical name of asafetida is Ferula fcctida. Asa is the Persian azd, mastic. The gum-resin obtained from a species of ferula {Ferula galbani- flua) of the desert region of Persia was used in the preparation of the ancient Hebrew incense. It has a peculiar aromatic odor and a disagreeable alliaceous taste. It is called galbanum. The Arabic name is qinnah, and the Persian : birzed. The hollow reed in which Prometheus brought fire from earth to heaven was a branch of ferula. The pith of the stem of giant fennel {Ferula communis) is still used in the Mediterranean region as tinder {cf. Pliny 13, 122; 7, 198). The ancient Hebrew incense was compounded of frankincense with equal parts of galbanum, stacte, and onycha, and a pinch of salt. Stacte is the fresh gum of the myrrh-tree, and onycha the claw-shaped operculum of a species of wing-shell or fountain-shell, found in the Red Sea. The operculum is the horny, or shelly, plate * Cf. vol. 4, p. 240 of the Paris edition of Ibn Batutah. 88 HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. serving to close the aperture of the shell when the animal is re- tracted. The operculum of some species of strombus emits a musky odor. In old works on materia medica it is said to have been known by the name of unguis odoratus, blatta Bysantina, and devil's claw. Arab women in Nubia and Upper Egypt scent themselves by making a fire of charcoal in a small but deep hole in the floor of the hut or tent. They throw on the charcoal ginger, cloves, myrrh, frankincense, cinnamon, sandal wood, onycha, and a kind of sea- weed, and crouch over the hole enveloped in their mantles which fall from their necks like tents (EB 3512; cf. EB^^ 27, 984'', below). The old pharmaceutical name of asafetida is devil's dung; so you can imagine the sweet smell of this remedy. The specific remedy for epilepsy is bromide of potassium, and bromine is derived from ^pcotxo^ ^ stench. In Germany an offensive animal oil, mixed with petroleum and dyed with alcanna, was extensively advertised as a patent medicine for epilepsy (BK 7, 567% 1. 18). Pliny (32, 226) says that an epileptic seizure may be checked by the fumes of burn- ing horns of goats or deer (morbuni ipsuui dcprehendit caprini cornus vcl cervina usfi nidor). The verb dcprehcndcre in this con- nection does not mean to detect, but to arrest, check. Horn, espe- cially hartshorn, was formerly much used as a source of ammonia, and ammonia has a pungent and sufTocating smell. Pliny calls epi- lepsy morbus comitialis: when a member of the forum was seized with an epileptic fit, the assembly was broken up. Hysterical patients often enjoy the most disagreeable odors. They may object to a sweet-smelling flower, but like, e.g., the odor of burned feathers. The oil of valerian smells like stale cheese. It is found not only in the root of valerian, but also in the secretion of sweating feet and in the liver of the dolphin. Delphinic, which is identical with isovaleric acid, also known as isopropylacetic acid, was discovered a hundred years ago by the great French chemist Michel Eugene Chevreul in his classical researches on animal fats. He was nearly 103 years old when he died in 1889. The fish caught by Tobias may have been a dolphin. Several species of dolphins are found in large rivers, e.g., in the Amazon and the Ganges. Some are entirely fluviatile and never pass out to sea. Pliny (8, 91) says HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. 89 that dolphins enter the Nile {dclphini hmneantes Nilo) and attack the crocodiles. He also states (32, 83) that some try out the livers of dolphins and use the oil for cutaneous affections (quidani delphini jccur- in fictili torrent donee pinguitudo siinilis oleo fluat ac pernn- gunt). The common name for dolphin is porpoise, which is a con- traction of parens and piseis, corresponding to the Ger. Schweine- fiscJi. Porpoise-oil is used as a lubricant for watches. It is also called eloek-oil. According to Pliny (32. 83), the ashes of dolphins were used for eruptions and leprosy. The common dolphin usually measures six to eight feet. It was formerly supposed to be a fish and therefore allowed to be eaten by Catholics when the use of flesh was prohibited. If Tobias burnt on roots of asafetida, which is used as a condi- ment in the East, the liver and heart of a dolphin, which he had kept for several days, the smell may well have expelled the demon. At any rate, this remedy may have had a powerful effect on Sara. Karl Binz, who retired from the chair of pharmacology in the Uni- versity of Bonn in 1908, has shown that the volatile oils of valerian act as sedatives of the motor cells in the anterior horns of grey mat- ter of the spinal column. Recent experiments in the Pharmacologi- cal Laboratory of the Johns Hopkins University have shown that the Hebrew incense was distinctly disinfective, but not sedative (JAOS 41, 178).^ The fishy fume, which drove Asmodeus away, is alluded to in Milton's "Paradise Lost" (4, 168) : when Satan ap- proached Eden, gentle gales dispensed native perfumes, and those odorous sweets entertained the Fiend | Who came their bane, though with them better pleased | Than Asmodeus with the fishy fume | Of Tobit's son, and with a vengeance sent | From Media post to Egypt, there fast bound. Tobias's fumigation was not undertaken for the purpose of dis- ^ See David I. Macht and William M. Kunkel, " Concerning the anti- septic action of some aromatic fumes," in the Proceedings of the Society of Experimental Biology and Medicine, vol. 18, pp. 68-70 (1920). The burning of various forms of incense exerted a distinct antiseptic action, but the in- halation of incense in ordinary dilution produced no depression. On the other hand, valerian and asafetida odors had a distinctly sedative effect. The article by Dr. Macht and Dr. Ting on the effect' of aromatic drugs on the behavior of rats will appear in vol. 18 of the Journal of Pliarmacology. 90 HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. infection, although the ancients were familiar with the sanitary efficacy of fumigation. After the slaughter of the suitors Ulysses fumigated the dining-hall with fire and sulphur (Od. 22, 481/2; EB^^ 14, 353''). At marriages the Mohammedans of India burn benzoin with nim-seeds to keep off the evil spirits. The nim-tvee is called also head-tree, because its nuts are used for the beads of rosaries, especially in Spain and Portugal (EB^^ 14, 350^). It may seem strange that asafetida should have been used for incense, but this gum-resin is relished as a condiment in Persia and India, and is in demand in France for culinary purposes. In north- ern Abyssinia it is chewed like a quid of tobacco in this country or betel-nuts in the East (BL 78). In the sixteenth century, valerian, which is now regarded as intolerable, was considered to be fragrant ; the dried root was placed among clothes as a perfume. The fresh root has no distinctive smell, but on drying it, it acquires a powerful odor of valerianic acid. By the poorer classes in the north of England it was esteemed of such medicinal value that no broth, pottage (cf. Lat. lasaratum) or physical meat was considered of any value without it (EB^^ 27, 858^). It was called setwall, a corrup- tion of zedoary, French zedoaire, which is the Persian zedwar, zidwar. We object to the flavor of garlic, but in southern Europe it is a common ingredient in dishes and is largely consumed by the agricultural population. It was eaten also by the ancient Greek and Roman soldiers, sailors, and rural classes. The nard-plant, Nardo- stachys jatamansi, from the bases of which the famous perfumed unguent of the ancients, known as spikenard, was derived, is closely allied to valerian (BL 69, 14). Mountain nard, collected in Cilicia and Syria, is supposed to have consisted of the root of Valeriana tuberosa. The odor of Nardostachys jatamansi is intermediate be- tween valerian and patchouli, although more agreeable than either (EB^^ 25, 668^). Patchouli, which gives their peculiar odor to India ink and Indian shawls, is liked by some persons, while others detest it. In Cant. 2, 12 spikenard denotes the membrum virile (AJP42, 165). The gall of the fish caught by Tobias is said to have cured also his father's blindness or, rather, the white spots in his eyes, caused HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. 91 l)y droppings of a bird, when he was asleep out of doors. The Greek text has leuconiata, i.e., opacities of the cornea. Recent corneal opacities may clear spontaneously, especially in children, but all applications to dispel the opacity of old scars are useless. Tobit is said to have been 58 when the trouble began, and it had lasted for eight years before his son applied the preserved gall of the fish he had caught in the Tigris. Modern oculists tattoo the white spots with India ink, so that they are no longer seen against the black pupil of the colored iris. The gall applied by Tobias must have been evaporated and dried. Ox-gall, i.e., the bitter fluid secreted by the liver of the ox, is used in water-color painting to make the colors spread more evenly ; mixed with gum arable, it thickens and fixes the colors. Black-lead or crayon drawings are set with a coating of ox-gall. If you add ox-gall to lamp-black in water you obtain a serviceable sepia. Tobias may have mixed with the gall the charcoal obtained by calcining the heart and liver of the fish (EB 455). The Egyptian ladies paint their eyelids w^ith the soot of charred frank- incense (EB" 14, 350^). Ebstein's remark in his book on Medicine in the Old Testament (Stuttgart, 1901) p. 164, that this use of gall, liver, and heart may be regarded as the first case of Brown-Sequard's organotherapy, is gratuitous. These organs were not administered internally by Tobias. Ebstein, who was Professor of Medicine in Gottingen, published also books on Medicine in the New Testament (1903) and the plague described by Thucydides (1899). He died in 1912. Brown-Sequard, who was for three years professor of physiology and neuropathology at Harvard, was the successor of Claude Ber- nard in the chair of experimental medicine at the College de France. In 1889 he advocated the hypodermic injection of a fluid, prepared from the testicles of sheep, as a means of prolonging human life. He was nearly yy when he died in 1894. Organotherapy is much older than Brown-Sequard. For many years pepsin has been used for dyspepsia, and from time immemorial savages have been accus- tomed to eat the hearts of lions and other wild animals, under the belief that they will thereby obtain courage and strength like that of the animal from which the heart had been taken (EB" 26, 798"). PROC. AMER. PHTL. SOC.,'VOL.^LX,''g, DEC. 20,'l92I. 92 HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. Some think that the fish caught hy Tobias was a callionymus or dragonet, because Phny (32, 69) says that the gall of the callionymus heals scars and consumes superfluous flesh about the eyes {callionymi fcl cicatrices sanat et carncs oculormn supervacuas consuniit) . He means, it may be supposed, a pterygium -■cen'jj'.ov, i.e., a more or less triangular patch of hypertrophied conjunctiva and subconjunctival tissue with its apex at the edge of the cornea or upon the cornea. The gemmous dragonet or yellow gurnard (see cut CD 768'') is a small fish which could not have swallowed Tobias. It is called gemmous because it is covered with spots like gems. Perhaps in allusion to its sparkling appearance it is called bridegroom in Banf- shire in northeast Scotland, northwest of Aberdeen. Gurnard means grunter. The German name is Knurrhahn, i.e., grunting cock. The gurnard, when taken out of the water, makes a grunting sound. Callionymus, having a beautiful name, seems to be a eu- phemistic designation for dragon, just as the left side was called suMW/xoc , well-named, and the Erinyes, the Greek Furies, Eumen- ides, the gracious ones (JAOS 28. 116; BA 3, 557, 1. 31; ZDMG "65,52). Arabic authors say that the gall of the catfish was used in the preparation of an eye-salve, and that it was employed also for the expulsion of demons. The silurus is called cat-fish because, when taken out of the water, it emits a sound like the purring of a cat. The catfish in the Danube grows to ten feet with a weight of 400 lbs., so Tobias might have been under the impression that the fish would swallow him up. Pliny (9, 45) says that the silurus pulls down horses (eqnos innatantes dcmergit). The stories about chil- dren having been found in the stomachs of very large individuals are probably inventions. But Tobias would not have eaten catfish, be- cause it has no scales. The Mosaic law forbade the Jews to eat scaleless fishes (Lev. 11, 12)." ^ It is said that in the rivers of New Zealand eels attain an immense size and have been known to attack bathers, dragging them beneath the sur- face of the water. Some years ago a giant conger, caught in the shallow water off the shores of England, measured 8 feet 8 inches in length and weighed 148 lbs. (Baltimore American, June 28, 1921, p. 4, col. 8). EBii- 9, g"' states that the largest conger recorded was 8 feet 3 inches long, and weighed 128 lbs. HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. 93 Some commentators believe that the fish was a pike (RB 457'', 1. 3) or a shark, or a whale, or a crocodile, or a hippopotamus. Large specimens of pike may attain a length of nearly 7 feet and a weight of nearly 80 lbs. They are said to attack foxes and small dogs, and snap at the hands and feet of human beings. Some species of sharks enter the mouths of large rivers. The carcharias Gangeticus occurs frequently high up in the large rivers of India; but there are no whales, hippopotami, or crocodiles in the Tigris. According to the Arabian cosmographer Kazwini, who died in 1283, the smell of smoke of a crocodile's liver cures epilepsy, and its dung and gall cure leucoma. Some exegetes think that the fish symbolizes the pagan empire endeavoring to seize what portions it could of the pious Dispersion (Simpson, p. 186). The Book of Tobit is, of course, not historical. Luther said. If it be fiction, it is a truly beautiful, wholesome, and profitable fiction, the work of a gifted poet. It is a religious novel written by a Persian Jew about 167 B.C. The accounts of the cures of Tobias's blindness and Sara's hysteria are not as accurate as our modern medical reports, but if a contemporary novelist introduced some allusions to the new rejuvenating operation suggested by Dr. Stei- nach, of Vienna,' or the transplantation of the thyroid gland of a monkey for the cure of idiocy, recently performed in Chicago, there would probably be some inaccuracies. We still speak of biliousness, colds in the head or on tJie lungs; we call conjunctivitis, which is caused by the Morax-Axenfeld bacillus or by the Koch-Weeks microbe, a cold in the eye, and we often read in the daily papers that some man died of acute indigestion. The. author of the Book of Tobit may have heard of a wise man who had cured an attack of hystero-epilepsy by the fumes of the liver of a dolphin, placed on the embers of incense containing asafetida. He may also have known of some cases in which white spots in the eyes had disappeared after the application of charred incense mixed with the gall of a fish or small cetacean.'* The man ■^ Ligation of deferent canal ; cf. Knud Sand, Moderne experimentelle Sexualforschung, besonders die letzten Arbeiten Steinachs (" Verjiingung") p. 20 (Bonn, 1920). 8 The Baltimore Sun, July 9, 1921 (p. i, cols. 4, 5) stated that Charles 94 HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. who performed these wonderful cures would have been regarded as an angel. When St. Paul at Lystra (some eighteen miles south- southwest of Konia, the ancient Iconium which was the easternmost city of Phrygia) cured a man who had never walked, having been a cripple from his mother's womb, the people said. The gods have come down to us in the likeness of men, and they called Paul : Mer- curius, and his companion, Barnabas, Jupiter (Acts 14, 8-12). In cases of hysterical paralysis wonderful cures may be efifected even by quacks and charlatans. In hysteria we generally find an in- creased susceptibility to external suggestion, and the paroxysmal symptoms may be dispelled by suggestion. Hysteria, or neuro- mimesis, is essentially a lack of inhibitory power, and something particularly nasty or dreaded may induce sufficient inhibitory power. A hysterical fit may be prevented or checked if the patient is threat- ened with something particularly disagreeable. One of my medical friends told me that, when he was resident physician at a sanatorium for nervous diseases, he would often tell a nurse who came to him in despair, because one of the female patients had a hysterical fit. Call in another nurse, and tell her to prepare an ice-cold bath; say, If the fit lasts much longer, we must put her in an ice-cold bath and keep her there. This generally re- sulted in the speedy disappearance of all symptoms. While a pa- tient is unconscious in an epileptic fit, there is no loss of conscious- ness in a hysterical seizure. Psychotherapeutic measures are more valuable than drugs. Some thirty years ago there was in a well- known European sanatorium a married woman who was so hysteri- cal that the physician-in-chief finally whipped her. There may have been some sadistic inclination on the part of the doctor, and maso- chism on the part of the patient. But she was cured. The doctor was sentenced to several months in jail, but there were a number of petitions with a great many signatures, urging the authorities to pardon the energetic -healer, or at least permit him to pay a fine instead of sending him to jail. He paid the fine, and could well afford to do so, because so many husbands sent their hysterical Dice, a former cowboy and house painter, now known as the Miracle Man of York (Pa.), was treating blindness with the "tears" of a "sea-monster." HAUPT— TOBIT'S BLINDNESS AND SARA'S HYSTERIA. 95 wives to his hospital that he had to build two additions. He did not put the liver and the heart of a fish on embers of incense: in- stead of valerian, which O. W. Holmes called calmer of hysteric squirms, he used ungebrannte Asche/* and Asmodeus was zvith a vengeance sent post to Egypt, there fast bound. 9 This has about the same meaning as our phrase a rod in a pickle, French title raclee, une voice de coiips de baton. Cf. Grimm's " Worterbuch," vol. I, p. 581 {ein Priigel wird z'olkniiissig umschrieben diirch ungebrannte Asche) and Sanders, p. 50**. A NEW HOPLOPHONEUS FROM THE TITANOTHERIUM BEDS. Investigation aided by a Grant from the Marsh Fund of the National Academy of Sciences. By WILLIAM J. SINCLAIR. (Read April 22, 192 1.) Comparatively little prospecting was done by the Princeton 1920 expedition to South Dakota in the Titanotherium beds, but as a by- product of some studies on the contact between this formation and the Oreodon beds the specimen described herewith was found, which is interesting both as the oldest representative of the genus Hoplo- phoneus and as a higher type of specialization in the development of the chin flange than is found in the various species of this saber- tooth from the Oreodon beds. If Hoplophoneus mentalis is an- cestral to Ensmilus dakotensis from the Protoceras beds, as seems possible, perhaps we have here an illustration of a case of survival of the fittest adaptation, with dying out of the shorter-chinned mutants of the Oreodon beds, in which less adequate protection was afforded by the chin flange to the long upper saber-teeth. Fig. I. Hoplophoneus mentalis. type specimen, side view of the left half of the lower jaw, two thirds natural size. No. 12515. 96 SINCLAIR— A NEW IIOPLOPHONEUS. 97 HOPLOPHONEUS MENTALIS Sp. IIOV. Type No. 12515, Princeton University Geological Museum, col- lecting locality 1015A1, left ramus of the lower jaw with the canine and third and fourth premolars in place (Fig. i), secured by the 1920 South Dakota expedition from the uppermost levels of the Titanotherium beds (Chadron formation), two to two and one half feet below the thin local bed of white limestone at the contact be- tween the Chadron and Brule formations (Oreodon beds), and two and a half to three feet above titanothere bones in place, in the valley of Indian Creek, near Taylor's ranch, west of Hart Table in Pennington County (locality shown in Fig. 2 of Plate i of the pre- ceding paper, in about the center of the picture). MEASUREMENTS. H. occi- dentalism H. men- talis. No. 12515- H. inso- lens, No. 11372.2 H. robus- tus, No. 10647.2 Depth of chin at flange " " ramus at P3_. "ml , Length of ramus Height at coronoid Width of lower canine at base of crown . Length p3 P4; mi Diastema c-p3 Anterior margin of masseteric fossa to canine ridge, length 80 mm. 32 31 164 50 13 12 17 22 42 67 mm. 25-5 26.5 145 43 6 6.5 12.75 17-5 33 80 52 mm. 26 26 138 6 8 14 14-5 33 79 54 mm. 26 26 134-5 39 6 6.5 13-5 16.5 30-5 74-5 So far as I am aware, this is the first Hoplophoneus to be de- scribed from the Titanotherium beds and is strikingly differentiated from all of the species of the overlying Oreodon beds by the extraor- dinary depth of the chin (as suggested in the specific name pro- posed), a character reminiscent of the great development of this structure in Hatcher's Eusinilus dakotcitsis from the Protoceras beds, to which the new form seems to be transitional. ^Williston's measurements, Kansas Univ. Quarterly, Vol. IIL, No. 3, p. 72, 1895. 2 Specimens in the Princeton Geological Museum used by G. L Adams, in de- fining these species. 98 SINCLAIR— A NEW HOPLOPHONEUS. From the table of measurements it will readily be seen that Hoplophoneus mentcdis is considerably smaller than the large H. occidentalis, approximating in size individuals of the insolens and robustus groups. A comparison with the specimens in the Prince- ton collection used by Adams in defining these two forms shows that, although the jaw depth back of the flange is the same in H. robustus and H. insolens as in the new form, the flange is absolutely larger in the latter and tapers less rapidly in width distally ; both premolars are smaller, and in p4 the paraconid is disproportionately smaller, than in H. insolens (Princeton Univ. Geol. Mus. No. 11372) and is out of line with the other two cusps, toward the inner side of the jaw as in Eusmilus and hoplophonids in general, and has sharper cutting edges than in //. insolens; also the alveolus for mi is very much wider transversely, in front, than in the latter species. Be- tween H. robustus and H. mentalis there is the same striking differ- ence in the shape of the jaw flange, which is decidedly V-shaped in robustus, while in the new species it is U-shaped and of the Eusmilus type. The third premolar is as small as in robustus, but rakes back- ward a bit stronger and has a larger posterior cuspule. To the paraconid of p4 the same remarks are applicable as in the compari- son with H. insolens. MAGELLANIC PREMIUM Founded in 1786 by John Hyacinth de Magellan, of London 1922 THE AMERICAN PHILOSOPHICAL SOCIETY Held at Philadelphia, for Promoting Useful K«40wledgb ANNOUNCES THAT IN DECEMBER, 1922 IT Wr;.L AWARD ITS MAGELLANIC GOLD MEDAL TO THE AUTHOR OF THE BEST DISCOVERY, OR MOST USEFUL INVENTION, RE- LATING TO NAVIGATION, ASTRONOMY, OR NATURAL PHILOSOPHY (mERH NATURAL HISTORY ONLY EXCEPTED) UNDER THE FOLLOWING CONDITIONS : 1. 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Bailey. Subscription— Pive Dollars per Volume Separate parts are not sold (Address The Librarian of the AMERICAN PHILOSOPHICAL SOCIETY No. 104 South Fifth Street PHILADELPHIA, U. S. A. IVIAY 9 1922 ^ ^ PROCEEDINGS OF THE American Philosophical g;(;)^iety HELD AT PHILADELPHIA ^ FOR PROMOTING USEFUL KNOWLEDGE Vol. LX. 1921. No. 3. CONTENTS PAGE The Control of the Foreign Relations of the United States : The Relative Rights, Duties, and Responsibilities of the President, of the Senate and the House, and of the Judiciary, in Theory and in Practice. By Quincv Wright -------- gg The " Turtle-Oreodon Layer" or " Red Layer," a Contribution to the Stratigraphy of the White River Oligocene (Results of the Princeton University 1920 Expedition to South Dakota). By William J. Sinclair -----_.--_ ... ^^y Minutes ------------" __ ; PHILADELPHIA THE AMERICAN PHILOSOPHICAL SOCIETY 104 South Fifth Street 1921 Copyright, rg22, by the Ameri.an Philosophical Society Members who have not as yet sent their photographs to the Society will confer a favor by so doing ; cabinet size preferred. It is requested that all correspondence be addressed To THE Secretaries of the AMERICAN PHILOSOPHICAL SOCIETY I 04 South Fifth Street Philadelphia, U. S. A. (ViAj o 1922 THE CONTROL OF THE FOREIGN RELATIONS OF THE UNITED STATES: THE RELATIVE RIGHTS, DUTIES, AND RESPONSIBILITIES OF THE PRESIDENT, OF THE SENATE AND THE HOUSE, AND OF THE JUDI- CIARY, IN THEORY AND IN PRACTICE. By Quincy Wright, Esq. (Read April 23, 1921.) The Crowned Essay for which the Henry M. Phillips Prize of two thousand dollars was azvarded, on April 23, 192 1, by The American Philosophical Society. ANALYTICAL TABLE OF CONTENTS. PART I. Chapter I. The Nature of the Foreign Relations Power 1. Difficulty in Developing a Legal Theory of the Subject 108 2. Dual Position of the Foreign Relations Power 109 3. The International Point of View no 4. The Constitutional Point of View in 5. Methods of Reconciling These Points of View 112 6. Relation of Law and Understandings 113 7. Constitutional Understandings ; 113 8. International L^nderstandings 113 PART II. THE POSITION OF THE FOREIGN RELATIONS POWER UNDER INTERNATIONAL LAW. Chapter II. The Representative Organ of Government. 9. The Nature of International Law 114 10. Independence of States 115 11. The Representative Authority under International Law 117 12. The President is the Representative Authority in the United States. 123 PROC. AMER. PHIL. SOC.., VOL. LX., H, MARCH 6, 1922. (Copyright, 1922, by the American Philosophical Society.) 99 100 ANALYTICAL TABLE OF CONTENTS. Chapter III. Attributes of the National Representative Organ Under International Law. A. Sole Agency for Foreign Communication. 13. Foreign Representatives May Officially Communicate with the Na- tion Only Through the President or His Representatives 128 14. National Organs of Government other than the President or His Representatives May Not Communicate 130 15. National and State Laws Subject to International Cognizance 131 16. Legislative Expressions of Opinion, not of International Cognizance. 133 17. Self-constituted Missions, Forbidden 135 18. Missions of de facto Governments, L^nofficially Received 136 B. All Acts of the President Subject to International Cognisance. 19. Communications of the President to Congress 136 20. President Presumed to Speak for the Nation 137 Chapter IV. Conclusiveness of the Acts and Utterances of National Organs Under International Law. A. With Reference to the Making of National Decisions. 21. Acts of the President 138 22. National and State Statutes 139 23. Acts of Subordinates to the President 140 B. With Reference to the Making of International Agreements. 24. Foreign Nations Presumed to Know the Constitution 140 25. Signature under Authority of the Treaty Power 141 26. Signature under Authority of the President 143 27. Reservations Expressly Consented to I45 28. Reservations Tacitly Consented to 148 29. Exchange of Ratifications under Authority of the President 152 30. Treaty Provisions ultra vires from Lack of Original Authority.... 152 31. Treaty Provisions ultra vires from Operation of Constitutional Limitations 1 54 32. Treaty Made Under Necessity 156 C. With Reference to the Meeting of International Responsibilities. 33. United States Bound by International Law and Treaties 157 ,34. Acts of the President 158 35. Acts of Subordinates to the President I59 36. Decisions of International Organs Authorized by the President 161 37. Meeting Responsibilities Distinguished from Making Agreements 161 38. Interpretation of Treaties 162 39. Understandings do not' Require Forbearance in Pressing Inter- national Claims ^^5 ANALYTICAL TABLE OF CONTENTS. 101 PART III. CONSTITUTIONAL LIMITATIONS UPON THE FOREIGN RELATIONS POWER. Chapter V. Limitations upon State Powers. 40. Position of the Foreign Relations Power under Constitutional Law. 167 41. Relation Between State and National Powers 168 42. Constitutional Prohibitions of State Power 169 43. Action of National Organs Limiting State Powers 170 Chapter VI. Limitations upon National Powers: Private Rights and States' Rights. A. Private Rights. 44. Nature of Prohibitions 1 72 45. Effect upon Power to Meet International Responsibilities 173 46. Effect upon Power to Make International Agreements 176 47. Effect upon Power to Make Decisions on National Policy 17a B. States' Rights. 48. Nature of Prohibition 182 49. Effect upon Power to Meet International Responsibilities 182 50. Effect upon Power to Make International Agreements 184 51. Effect upon Power to Make Decisions on National Policy 189 Chapter VII. Limitations upon National Powers: The Sep- aration OF Powers. 52. Nature of the Theory 190 53. Protection of Independence of Departments 192 54. Protection of Delegated Powers of Departments 192 55. Prohibition upon Exercise of Uncharacteristic Powers by any De- partment 193 A. Effect on the Power to Meet International Responsibilities. 56. Government as a Whole Competent to Meet Responsibilities 194 57. Power of President and Courts to Meet Responsibilities 195 B. Effect on the Power to Make International Agreements. 58. Limitations upon the Government as a Whole 196 59. Limitations Derived from Powers of Congress 196 60. The Delegation of Legislative Power 198 61. Congressional Delegation of Power to Make International Agree- ments 200 62. Treaty Delegation of Power to National Organs 202 63. Treaty Delegation of Power to International Organs 205 102 ANALYTICAL TABLE OF CONTENTS. 64. Limitations Derived from Powers of the Judiciary 211 65. Limitations Derived from Powers of the President 214 C. Effect on the Power to Make National Decisions. 66. Alleged Encroachments 215 Chapter VIII. Conclusion on Constitutional Limitations. 67. Traditional Statements of Limitations upon the Treaty-power 216 68. Most Limitations L^nimportant in Practice 219 69. Important Limitations from Separation of Powers 220 PART IV. THE POWER TO CONDUCT FOREIGN RELATIONS UNDER THE CONSTITUTION. Chapter IX. The Position of the Foreign Relations Power in THE Constitutional System. A. Source of National Powers. .70. Distribution of Powers between States and National Government... 221 71. Theory of Sovereign Powers 222 72. Theory of National Sovereignty in Foreign Relations 224 73. Theory of Resultant Powers 225 B. Essential Nature of tlie Foreign Relations Power. 74. Controversy as to Nature of Foreign Relations Power 227 75. Foreign Relations Power not Essentially Judicial 227 76. Theory of Essentially Executive Nature: Early Opinion 228 77. Essentially Executive Nature : Practice 229 78. Essentially Executive Nature : Recent Opinion 229 79. Theory of Essentially Legislative Nature: Early Opinion 230 80. Essentially Legislative Nature : Practice 231 81. Essentially Legislative Nature : Recent Opinion 232 82. Theory of a Fourth Department Different from Either Executive or Legislative 232 83. A Fourth Department : Opinion of Theoretical Writers 234 84. A Fourth Department : British and Colonial Precedents 235 85. A Fourth Department: Opinion of the Constitutional Fathers 238 86. A Fourth Department : Functional Classification 240 87. A Fourth Department : Practice 240 88. The Foreign Relations Department 242 Chapter X. The Power to Meet International Responsi- bilities. 89. The Law of International Responsibility 242 90. State 'Power to Meet International Responsibilities 244 91. National Power to Meet International Responsibilities 245 ANALYTICAL TABLE OF CONTENTS. 103 92. Theory of Inherent Executive Power to IMeet International Re- sponsibilities 246 93. President's Duty to Execute the Laws 248 94. Power of the Courts to Meet International Responsibilities 249 95. Power of Congress to Meet International Responsibilities 250 96. Power to ]\Ieet International Responsibilities by Treaty 251 Chapter XL The Power to Meet International Responsibili- ties Through the Observance of International Law. 97. Conditions Favoring the Observance of International Law 252 98. Observance of International Law by the States 252 99. Observance of International Law by the Constitution 253 100. Observance of International Law by Congress 253 loi. Checks upon Congressional Disregard of International Law 255 102. Observance of International Law by the Treaty-making Power.... 256 103. Observance of International Law by the President 257 104. Observance of International Law by Mihtary and Civil Services.... 258 105. Observance of International Law by the Courts 261 106. Courts Apply International Law and Treaties as Part of the Law of the Land 262 107. This Principle not Applicable to Political Questions 263 108. This Principle not Applicable to Cases Covered by Written Law... 265 Chapter XII. The Power to AIeet International Responsibili- ties Through the Enforcement of International Law. 109. Due Diligence 266 1 10. Enforcement by the States 267 111. Enforcement under the National Constitution 269 A. Enforcement by Legislative Action. 112. Congressional Resolutions Before the Constitution 269 113. Offenses Against Persons Protected by International Law 270 1 14. Offenses Committed on the High Seas 270 115. Offenses Against Neutrality 271 1 16. Offenses Against Foreign Governments 272 117. Offenses Relating to International Boundaries 273 118. Offenses Against Treaties 274 119. General Empowering Statutes 276 120. Sufficiency of Existing Legislation to Protect Resident Aliens 276 121. Sufficiency of Existing Legislation for Punishing Offenses Against Foreign Governments 277 122. Sufficiency of Existing Legislation in Aid of Foreign Criminal Justice 279 B. Enforcement by Action of the Treaty Power. 123. Treaties as a Basis for Executive and Judicial Action 280 124. Treaties as a Basis for Congressional Action 280 104 ANALYTICAL TABLE OF CONTENTS. C. Enforcement by the President. 125. Enforcement by the President 282 126. President's Use of Military Force 283 127. President's Direction of Administrative Action 283 D,. Enforcement by the Courts. 128. Early Assumptions of Common Law Criminal Jurisdiction by Fed- eral Courts 286 129. Federal Courts have no Common Law Jurisdiction 287 130. Federal Court's have no Criminal Jurisdiction from Treaties Alone. 288 131. Statutory Criminal Jurisdiction of Federal Courts 289 132. Admiralty Jurisdiction of Federal Courts 289 133. Civil Jurisdiction of Federal Courts in Cases Affecting Aliens 291 134. Conclusion 293 Chapter XIII. The Power to Meet International Responsi- bilities Through Performance of National Obligations. 135. Nature of This Responsibility 293 136. Performance of Obligations by the States 294 A. The Nature of National Obligations. 137. Obhgations Founded on International Agreement 295 138. Obligations Founded on General International Law 297 139. The Determination of Obligations 298 140. Justiciable and Non-justiciable Questions 299 141. The Obligation of Treaties and International Law 301 142. Practice in Submitting Disputes to Arbitration 303 B. Pozver to Interpret National Obligations. 143. By National Political Organs : Congress 304 144. By National Political Organs : The Senate 305 145. By National Political Organs : The President 306 146. By International Political Organs 307 147. By National Courts 309 148. By International Courts 310 C. Pozver to Perform National Obligations. 149. Appropriations 313 150. Cession of Territory 315 151. Guarantees and Use of Military Force 315 152. Conclusion of Subsequent Treaties 316 153. Participation in International Organization 316 154. Commerce and Revenue Laws 3^7 155. Formal Amends in Reparation 317 ANALYTICAL TABLE OF CONTENTS. 105 Chapter XIV. The Power to Make International Agree- ments. 156. Power of the States to Make Agreements with Consent of Congress. 318 157. Power of the States to Make Agreements Independently 319 158. Power of the National Government to Make Agreements 321 159. Congress can not make International Agreements 321 160. The Courts can not make International Agreements 322 A. The Power to Make Executive Agreements. 161. The Obligation of Executive Agreements 322 162. Administrative Agreements under Authority of Act of Congress.... 323 163. Administrative Agreements under Authority of Treaty 324 164. Independent Administrative Agreements 325 165. Recent Practice 325 166. The Validity of Administrative Agreements 327 167. The Power to Make Military Agreements 328 168. Armistices and Preliminaries of Peace 329 169. Validity of Military Agreements 33° 170. Power to Make Diplomatic Agreements 33^ 171. Diplomatic Agreements Settling Controversies 332 172. VaHdity of Diplomatic Agreements 333 B. TJic Pozver to Make Treaties. 173. The Subject Matter of Treaties 334 174. The Initiation of Treaties 33^ 175. The Appointment of Negotiators 337 176. The Negotiation and Signature of Treaties 337 177. Consent to the Ratification of Treaties 340 178. The Ratification of Treaties 342 179. The Exchange of Ratifications 342 180. The Proclamation of Treaties 343 C. The Pozver to Terminate Treaties. 181. Change in Conditions 344 182. Violation of Treaty by One Party 344 183. Conclusion of New Treaty 345 184. Denunciation by Congress 34^ 185. Denunciation by the Treaty-making Power 347 186. Denunciation by the President 347 187. Legislative Abrogation 34^ 188. Conclusion 349 Chapter XV. The Power to Make Political Decisions in For- eign Affairs: Recognition, Annexation, Citizen- ship AND the Determination of Policy, 189. Distinction Between Domestic and Foreign Affairs 350 190. State Power to Make Political Decision in Foreign Affairs 351 191. National Power to Make Political Decisions in Foreign Affairs 353 106 ANALYTICAL TABLE OF CONTENTS. A. The Power to Recognise Foreign States, Governments and Belligerents. 192. The Power of Recognition 355 193. Limits of Recognition Power 356 194. Exclusiveness of President's Recognition Power 357 195. Claim of Congress to Recognition Power 358 B. The Power to Determine National Territory and Citizenship. ig6. Judicial Recognition of Territorial Limits 360 197. Recognition of Territorial Limits by the President 361 198. Power to Annex Territory by Treaty and Executive Agreement... 361 199. Power of Congress to Annex Territory 362 200. Power of Congress to Naturalize Aliens and Establish Criteria of Citizenship 363 201. Power of Executive to Recognize Citizenship 364 C. Power to Determine Foreign Policy. 202. Congressional Resolutions on Incidents in Foreign Affairs 364 203. President not Bound by Congressional Resolutions on Foreign Affairs 366 204. Congressional Declarations of General Policy 368 205. Power of the President to Determine Foreign Policy 369 Chapter XVI. The Power to Make Political Decisions in Foreign Affairs : War and the Use of Force. A. The Power to Make War. 206. The Power to Make War 370 207. The Causation of War 370 208. The Recognition of War by Congress 372 209. The Recognition of War by the President 372 210. The Power to Recognize War 375 211. The Power to Declare War 37^ 212. The Power to Terminate Wai- 376 213. The Power to Recognize the Termination of War 377 B. The Power to Use Force in Foreign Affairs. 214. Diplomatic Pressure 379 215. Display of Force 380 216. Occupation and Administration of Territory 382 217. Capture and Destruction of Foreign Military Forces 383 218. Seizure and Destruction of Private Property 384 219. Commercial Pressure and Retaliation 3^7 220. Exclusion, Expulsion and Internment of Aliens 3^9 221. Power to Employ Various Methods of Coercion 390 222. Purposes for Which the President May Employ Force under the ANALYTICAL TABLE OF CONTENTS. 107 Constitution 3^1 223. Purposes for Which the President INIay Emplo\- Force under Statute. 394 224. Conclusion 395 Chapter XVII. The Power to Establish Instrumentalities FOR Conducting Foreign Relations. A. Constitutional Principles. 225. The Power of Congress to Create Offices and Agencies 396 226. The Power to Create Offices and Agencies by Treaty 397 227. The Power of the President to Create Offices and Agencies 398 228. The Appointment of Officers and Agents 399 229. Limitations upon the Appointing Power 401 230. Powers of Removing and Directing Officers and Agents 402 B. Application of Principles to Foreign Affairs. 231. The Types of Agencies Conducting Foreign Relations 403 232. National Military, Naval and Administrative Offices 405 ^33- Appointment of Military and Naval Officers 406 234. Organization of the Department of State 407 235. National and International Political Officers and Agents 408 236. Power to Determine Grades in the Foreign Service 409 237. Power to Determine Occasion for Appointments in Foreign Service. 411 238. Power of President to Appoint Diplomatic Agents 413 239. Practice of Sending Presidential Agents 4^4 240. Controversies with Respect to Presidential Agents 4^5 241. Presidential Agent not an Officer 4^8 242. International Administrative and Judicial Agencies 419 243. Conclusion on Power to Conduct Foreign Relations 420 PART V. THE UNDERSTANDINGS OF THE CONSTITUTION. Chapter XVIII. Understandings Concerning the Relations of the Independent Organs. 244. Reason for Constitutional L"^nderstandings 421 A. The Overlapping of Powers of Independent Departments. 245. Constitutional Understanding Respecting the Overlapping of Powers. 423 246. Concurrent Powers of President and Congress 423 247. Concurrent Powers of President and Courts 424 248. Concurrent Powers of Treaty Power and Congress 426 B. Cooperation of Independent Organs. 249. Constitutional Understanding Respecting the Cooperation of Inde- pendent Organs 428 250. Decisions by the Courts 429 108 WRIGHT— NATURE OF FOREIGN RELATIONS POWER. 251. Acts of the President 430 252. Acts of Congress 433 253. Acts of the Treaty-making Power: Obligation of the Courts 433 254. Acts of the Treaty-making Power: Obligation of the President 434 255. Obligation of the Treaty-making Power Itself as to Future Action 435 256. Acts of the Treaty-making Power: Obligation of Congress 435 C. Duty of the Departments to Act. 257. Constitutional Understanding respecting the Establishment of Neces- sary Instrumentalities 439 258. Duty of all Organs to Aid in Meeting International Responsibilities. 440 Chapter XIX. The Control of Foreign Relations in Practice. 259. The Position of the President 441 260. Friction in the American System 442 261. Criticisms of the American System 443 262. Need of Popular Control in Foreign Relations 444 263. Need of Centralization of Authority 445 264. Practice in American History 447 265. Constitutional Changes not Necessary 449 266. Need of Constitutional Understandings 449 PART I. CHAPTER I. The Nature of the Foreign Relations Power. I. Difficulty in Developing Legal Theory of Subject. There is no phase of American constitutional law on which commentators have found it more difficult to procure a logical and consistent theory than the control of foreign relations. Not only have opinions differed as to the relative powers of President, Senate and House of Representatives, but also as to the limitations imposed upon the national foreign relations power as a whole by the guaranteed rights of individuals, " reserved powers " of the states and the doctrine of separation of powers. Discussion has dealt particularly with the treaty-making power but similar differences have developed in considering the power to make national decisions such as the recognition of foreign states and governments, and WRIGHT— NATURE OF FOREIGN RELATIONS POWER. 109 the declaration of war, and the power to meet international re- sponsibilities, all of which are here included under the general term, the foreign relations power. For this difficulty several reasons may be assigned, as for instance, vagueness in the terms of the constitution on this subject, inconsistency in the interpretations acted upon by the political organs of government at different periods of history, and the comparative lack of judicial interpretation, due to the tendency of the courts to regard questions involving foreign relations as political and so beyond their consideration.^ There is, however, a more fundamental reason for this difficulty, a reason which lies back of those mentioned and which explains the existence of a similar difficulty in all other constitutional states. This reason is the dual position necessarily occupied by the authority controlling foreign relations. 2. Dual Position of Foreign Relations Power. This authority is on the one hand an agency of the national constitution. It is created by that instrument and subject to all the limitations of pow^r and procedure therein expressed or im- plied. But on the other hand it is the representative of the nation before other nations and is expected by them to meet international responsibilities according to the standard of international law and treaty. Thus its activity is governed at the same time by constitu- tional law and international law, its powers by one, its responsibili- ties by the other. Conflicts may occur in the application of these two laws. For example, international law requires that all validly concluded treaties be executed, but constitutional law may make it difficult if not impossible to execute particular treaty provisions because of certain constitutional limitations. This problem has arisen in the United States in connection with the police power of the states and the exclusive power of Congress to appropriate money. It has been alleged that under constitutional law the states and congress are entitled to an unlimited discretion in exer- cising these powers irrespective of treaty provisions.^ Commentators have differed in their views as to the scope of the powers belonging 1 Infra, sees. 107, 247. 2 Infra, sees. 50, 59. 110 WRIGHT— NATURE OF FOREIGN RELATIONS POWER. to the various organs controlling foreign relations, according as they have approached the subject from the constitutional or from the international point of view. 3. The International Point of View. If the international point of view were adopted in full it would result that an international commitment made by the proper con- stitutional authority would bind all organs of the government. Thus Secretary of State Livingston wrote the French government in 1833: " The government of the United States presumes that whenever a treaty has been concluded and ratified by the acknowledged authorities competent for that purpose, an obligation is thereby imposed upon each and every de- partment of the government to carry it into complete effect, according to its terms, and that on the performance of this obligation consists the due ob- servance of good faith among nations." ^ But constitutions, acting by tradition and convenience, if indeed not practical necessity, have ordinarily vested the power of inter- national negotiation in a single individual, the chief executive, acting Avith or without the advice of a council.* Now the inter- 3 Wharton. Int. Law Digest, 2 : 67. See also Gushing, At. Gen. 1854, 6 Op. 291; Duer, Outlines of Constitutional Jurisprudence, 138; Wheaton, Ele- ments of Int. Law, Dana ed. Sec. 543 ; Moore, Int. Law Digest, 5 : 230, 370 ; Willoughby, Constitutional Law, i : 515, infra, sec. 2>7- This doctrine seems to be an implication of Art. VI, sec. 2 of the Constitution of the United States — " all treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land " — but it must be admitted that the L^nited States has been more insistent upon applying it to other nations than to itself. {Infra, sec. 39.) Nations usually adopt the international point of view in discussing the powers and responsibilities of other nations, the constitutional point of view in discussing their own powers and responsibilities. * " The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed con- fining it to a small number of members." Washington, Message to House of Representatives, March 30, 1796, Richardson, Messages and Papers of the President, i : 195. " The reason why we trust one man, rather than many, is because one man can negotiate and many men can't. Two masses of people have no way of dealing directly with each other. . . . The very qualities which are needed for negotiation — quickness of mind, direct contact, adap- tiveness, invention, the right proportion of give and take — are the very qualities which masses of people do not possess." Lippmann, The Stakes of Diplomacy, N. Y., 1915, pp. 26, 29. WRIGHT— NATURE OF FOREIGN RELATIONS POWER. HI national commitments of this individual might radically alter the constitution. They might impair national independence. They might establish autocracy. Were these commitments fundamental law, obligatory upon all organs of the government, the achievements of centuries of battling for constitutionalism and popular sover- eignty might be sacrificed by the stroke of a pen.^ 4. The Constitutional Point of View. If, on the other hand, the constitutional point of view is adopted in full, the situation seems even less promising. Yet illustrations are not wanting. The House of Representatives resolved in 1796 and again in 1871 that: "When a treat}' stipulates regulations on an}' of the subjects submitted by the Constitution to the power of Congress, it must depend for it's execu- tion as to such stipulations on a law or laws to be passed by Congress; and it is in the constitutional right' and duty of the House of Representatives in all such cases to dehberate on the expediency or inexpediency of carrying such treaty into effect and to determine and act thereon, as in their judg- ment may be most conducive to the public good." <' Should a general opinion develop that national commitments made by the proper constitutional authority and solemnized with due formality might be ignored or repudiated by other organs of the government because of some obscure constitutional limitation, unknown to a foreign nation, the authority conducting foreign relations could no longer command a hearing as the representative 5 " Applying the principle broadly, the contention that one department of the Government may in any way coerce another is a repudiation of the very purpose of the division of power, and would result in the destruction of that freedom under law which the Constitution aims to establish. If such an attempt were for any reason successful, it would result' in the establishing of an autocratic form of government. Absolutism, which the Constitution was intended to prevent, might thus creep ' in through the usurpation of power by a single department, or even by a single officer of the Government. There could be no greater offense against the Constitution than this, and public opinion should unite in condemning even the suggestion of it." D. J. Hill, Present Problems in Foreign Policy, N. Y., 1919, p. 163. 6 Annals, 4th Cong., ist Sess., p. 771; Cong. Globe, 42d Cong., I5t Sess., p. 835; Wharton, Int. Law Digest, 2: 19. 112 WRIGHT— NATURE OF FOREIGN RELATIONS POWER. of the nation, international negotiation would be unfruitful and international anarchy would prevail.'' 5. Methods of Reconciling these Points of View. In practice modern states have avoided both alternatives by compromises, partly of a legal and partly of a conventional char- acter.' There has been a tendency for constitutions to multiply the organs whose concurrence is necessary to bring foreign negotiations to a valid conclusion. Thus many constitutions now vest power to make the most important decision in foreign affairs, such as declarations of war and the ratification of treaties, in the legislative body." So far as this is done, there is no difficulty in giving inter- national commitments the force of law. However, a practical difficulty is here met. The legislative body is usually large, slow moving and ill informed on foreign relations. Many international situations must, under present conditions, be met by personal nego- tiation and immediate decision for which such a body is ill adapted.^" Consequently many types of international commitment are still made by executive authority. In these cases, and in fact they are still the majority, the difficulty is solved either by con- stitutional understandings, whereby the executive power is in fact if not in law expected to act in such a way that the other organs of government will approve its action; or by international under- standings whereby the other states of the world consider commit- ments formally concluded by the executive authority merely pro- '^ " Others, though consenting that treaties should be made in the mode pro- posed, are averse to their being the supreme law of the land. They insist and profess to believe that treaties, like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors as well as new truths often appear. These gentlemen 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 should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it." Jay, Federalist No. 64, Ford ed., p. 431. _ See also Washington, message cited supra, note 4. 8 See Dicey, The Law of the Constitution, 8th ed., p. 23, for this dis- tinction. 0 Wright, The Legal Nature of Treaties, Am. Jl. of Int. Laiv, 10: 711 et seq. 10 Supra, note 4. WRIGHT— NATURE OF FOREIGN RELATIONS POWER. 113 visional until they have been endorsed by other organs of the government, whose cooperation is necessary for their execution.^^ 6. Relation of Law and Understandings. The writer believes that a comprehensive legal theory of the control of foreign relations must give equal weight to the powers and responsibilities derived from both constitutional law and inter- national law. But in constructing such a theory, he has found himself forced to take account of understandings of the kind mentioned. He believes these understandings furnish the true explanation of the functioning of all systems for controlling foreign relations and especially of that in the United States. Without them a constitutional deadlock or an international breach of faith would be probable at every important international transaction. 7. Constitutional Understandings. The constitutional understandings are based on the distinction between the possession of a power and discretion in the exercise of that power. The law of the constitution decides what organs of the government possess the power to perform acts of international significance and to make valid international commitments, but the understandings of the constitution decide how the discretion or judgment, implied from the possession of power, ought to be ex- ercised in given circumstances.^^ The powers given by law to various organs often overlap. Even more often, two or more organs must exercise their powers in cooperation in order to achieve a desired end. In such circumstances, were it not for understand- ings, deadlocks would be chronic. The law is the mechanism, the understandings the oil that permit it to run smoothly. 8. International Understandings. International understandings are based on the same distinction as constitutional understandings and are often referred to as comity or imperfect rights under international law. " Our obliga- tions to others," says Vattel, " are always imperfect when the ^1 Wright, Am. Jl. of Int. Law, 10: 710; and infra, sec. 39. ^2 Dicey, op. cit., p. 418. 114 WRIGHT— POSITION OF FOREIGN RELATIONS decision as to how we are to act rests with us."" They are observed on the principle of reciprocity and are of two kinds. Thus states are accustomed to exchange certain courtesies and favors, not required by strict law. They also sometimes withhold pressure when others fail to meet the responsibilities imposed by strict law. It is with the latter kind that we are especially con- cerned here. As an example, international law requires that com- mitments to be valid be made by the proper constitutional authority, and therefore assumes that all governments are informed of the authority in foreign states with which they deal, competent to make various sorts of international commitments. International law, however, considers that commitments once made must be carried out.^* It knows nothing of constitutional restrictions making ex- ecution difficult or impossible, consequently governments are not required to know the agencies in foreign states for executing inter- national commitments and are entitled to protest if execution fails, whatever the cause. If such protests are withheld" it is by virtue of an international understanding.^^ Constitutional understandings suggest modes of exercising con- stitutional powers out of respect for international responsibilities. International understandings suggest a tolerant attitude toward certain deficiencies in the meeting of international responsibilities out of respect for constitutional limitations. ^3 Vat'tel, The Law of Nations, Introduction, sec. 17; see also Pliillimore, Commentaries on Int. Law, i: 161, sec. 163; Hall, Int. Law, 7th ed. (Hig- gins), pp. 14, 56; Woolsey, Int. Law, sec. 24; Davis, Elements of Int. Law, 4th ed. (Sherman), pp. 92, 116; Wright, The Understandings of Int. Law, Am, Jl. of Int. Lazv, 14: 568 (Oct., 1920). 14 Wright, Columbia Law Rev., 20: 121-122; and infra, sec. 39. 15 Turner v. Am. Baptist Union, 5 McLean 347 (1852). See also Wright, Am. Jl. of Inf. Lazv, 10: 709, 716, and infra, sec. 39. PART 11. The Position of the Foreign Relations Power Under International Law. CHAPTER II. The Representative Organ of Government. 9. The Nature of International Law. International law has developed in a society based upon the assumption of the complete independence of territorial states.^ This independence is commonly said to imply that the state has power to form a constitution and organize a government as it sees fit; to formulate law and administer justice within its ter- ritory according to its own notions; to formulate and pursue foreign policies and to be the sole judge of its international respon- sibilities.^ However, the contemporary and contiguous existence of many states, each with an equal independence, practically re- quires limitations in the exercise of these powers and the practice and usage defining these limitations constitute international law. The formulation, however, of a body of practice as law implies responsibility for its observance. Thus we may define interna- tional law as the body of rules and principles of conduct, observed within the society of independent states, for the violation of which states are habitually held responsible, by diplomatic protest, inter- vention, reprisals, war or other means.' 1 " In the fifteenth century international life was fast resolving itself into a struggle for existence in its barest form. In such condition of things no law could be established which was unable to recognize absolute independence as a fact prior to itself." W. E. Hall, Inf. Law, 7th ed. (Higgins), 1917, p. 18. 2 Wilson, Handbook of Int. Law, 1910, p. 56; Hershe}', The Essentials of Int. Pub. Law, 1912, p. 147; Bonfils, Manuel" de droit international public, 6th ed. (Fauchille), 1912, sec. 58, p. 119; Borchard, The Diplomatic Pro- tection of Citizens Abroad, 1915, p. 177; Wright, Am. Pol. Sci. Rez'., 13: 563; Columbia Law Rev., 20: 146. 3 For justification of this definition and comparison with other defini- tions see Wright, Enforcement of Int. Law through Municipal Law in U. S. U. of 111., Studies in the Social Sciences, 5 : 12-13 and Borchard, op. dr., y. 177 et seq. PROC. AMER. PHIL. SOC , VOL. LX., I, MARCH 6, 1922. 115 116 WRIGHT— POSITION OF FOREIGN RELATIONS 10. The Independence of States. Of the various fields to which the independence of a state extends, it is clear that other states would be less aflfected by a state's constitution and form of organization than by the legislation and administration of justice in its territory. Furthermore, each of these would affect other states less than the course of its foreign policy and the interpretation of its international responsibilities. However, history has shown that the constitution and form of or- ganization of states is not a matter of total indifference to their neighbors* and international law does limit the exercise of in- dependence even in this field, but as a corollary to limitations upon the state's external and internal activity. Acts and omissions, not institutions are the primary concern of international law, but the interrelation of the two cannot be ignored. For example, international law requires that states, desiring to enter into relations with other states, do so through diplomatic officers exercising powers and enjoying rights and privileges fixed by international law or treaty.^ So also states admitting foreigners to their territory are required by international law to maintain courts acting under a procedure calculated to assure substantial justice.® Where they have not been able to do this, foreign states * Note for example the sympathy of the Holy Alliance for absolute gov- ernments and of the United States for popular governments since its founda- tion. (See Greene, Am. Interest in Popular Government, War Information Series, Sept., 1917, No. 8.) " A steadfast concert for peace can never be maintained except by a partnership of democratic nations. No autocratic government could be trusted to keep faith within it or observe its covenants. . . . We are accepting the challenge of hostile purpose because we know that in such a government following such methods, we can never have a friend, and that in the presence of its organized power, always lying in wait to ac- complish we know not what purpose, there can be no assured security for the democratic governments of the world. . . . The world must be made safe for democracy." President Wilson, War Message, April 2, 1917. s The classification of these officers as fixed by the treaty of Vienna 1815 has been generally accepted. Wilson and Tucker, Int. Law, 7th ed., p. 162. It is recognized that Article II, sec. 2, cl. 2 of the Constitution of the U. S., relating to the appointment of ambassadors and other public ministers, is to be interpreted according to international law. Gushing, Attorney General, 7 Op. 190, 192. Infra, sec. 236. ^ " Nations are bound to maintain respectable tribunals to which the sub- jects of states at peace may have recourse for the redress of injuries and WRIGHT— POSITION OF FOREIGN RELATIONS 117 have habitually exercised diplomatic protection of their nationals or have insisted that permission be given them to establish extra- territorial courts for deciding cases in which their nationals are defendant.^ II. Tlie Representative Authority Under International Law. More important for our purposes, however, is the requirement of international law that states maintain a definite authority to which foreign states may complain of violations of international law and from which they may expect satisfaction on the basis of that law alone. This requirement appears to be a necessary deduction from the accepted principle that under international law states are re- sponsible as units® and that this responsibility is unaffected by tlie maintenance of their rights." Mr. Webster, Secretary of State, to Chevalier d'Argaiz, Spanish Minister, June 2, 1842, Moore, Digest, 2 : 5. See also Borchard, Diplomatic Protection of Citizens Abroad, 1915, p. 213, 335; Moore, Digest, 6: 695. The obligation to establish courts punish- ing offenses against international law was recognized by Congress before the Constitution (See Wright, Enforcement of Int. Law, p. 221) and is recog- nized in the Constitution (Art. i, sec. 2, cl. 10). The obligation of a bel- ligerent to establish prize courts is especially well recognized. " Neutral states have a right to demand ex debito juditicc that there be courts for the administration of international law sitting in the belligerent countries." (Phillimore, Int. Law, i: 55.) See also report of British Commission on Silesian Loan controversy, 1753, American State Papers, For. Rel., i: 494; Moore, Digest, 7 : 603 ; Lord Mansfield in Lindo v. Rodney 2 Doug. 613, 616 (1781); Lord Stowell in the Recovery Rob. 348 (1807). Diplomatic discussion, however, is not necessarily excluded until such judicial remedies ^re exhausted (infra, note 13). ^ Borchard, op. cit., p. 346. 8 Borchard, op. cit., pp. 199-201. Hall, Int. Law, 7th ed., p. 54. Wilson and Tucker, op. cit., p. 45, defines a state for purposes of international law as " a sovereign political unity." The Supreme Court has said : " the National Government is . . . responsible to foreign nations for all violations by the United States of their international obligations," U. S. of Arjona, 120 U. S. 479, 483. Apparent exceptions to this unity of responsibility such as federal states whose constitutions permit a limited diplomatic power to the member states (Germany and Switzerland) and imperial commonwealths which in practice permit their self-governing colonies to exercise considerable diplo- matic power (British Empire) (See Moore, Digest, i: 25; Wright, Am. Jl. of Int. Law, 13 : 265) prove not to be on inspection. In these cases the pozfcr of making commitments is to some extent distributed but responsi- bility for their exeruiion continues unified. Thus the German Constitution of 1871 made it the duty of " the Emperor to represent the Empire among nations " and foreign nations have held the imperial government responsible 118 WRIGHT— POSITION OF FOREIGN RELATIONS domestic law.^ States have uniformly refused to accept con- stitutional limitations/" legislative acts^^ or omissions/^ or judicial for the execution of treaties made by the member states. " Unquestionably," wrote Secretary of State Bryan to Ambassador Gerard on April 28, 1915, " the destruction of this vessel (William P. Frye) was a violation of the obligations imposed upon the Imperial German Government under existing treaty stipulations between the United States and Prussia, and the United States government, by virtue of its treaty rights, has presented to the Im- perial German Government a claim for indemnity on account of the result- ing damages suffered by American citizens." (U. S. White Book, European War No. i, p. 88.) Germany had admitted its responsibility under the treaty in an earlier note. (Ibid.) Under the German Constitution of 191Q "The Commonwealth has exclusive jurisdiction over foreign relations" (Art. 6) and though " the states may conclude treaties with foreign countries in matters subject to their jurisdiction, such treaties require the assent of the commonwealth." (Art. 78.) The responsibility of the British government for acts of the self-governing dominions has never been questioned and apparently remains even though these dominions are given independent representation in the League of Na- tions. " Disputes," said President Wilson before the Senate Foreign Rela- tions Committee, " can rise only through the Governments which have international representation. In other words, diplomatically speaking, there is only one ' British Empire.' The parts of it are but pieces of the whole. The dispute, therefore, in the case you have supposed (dispute between the United States and the United Kingdom) would be between the United States as a diplomatic unit and the British Empire as a diplomatic unit." David Hunter Miller, technical expert at the Peace Conference, testified to the same effect : "Senator Hitchcock: 'So that any dispute that could arise between the United States and the Dominion of Canada involves the whole British Em- pire? ' "Mr. Miller: 'It seems so to me, Senator.'" (66th Cong., ist Sess., Senate Doc. No. 106, pp. 540, 422.) ^ Moore, Digest, 6: 309-324, especially pp. 317, 321. This ineffectiveness of municipal law extends both to the right and the remedy. Thus municipal law cannot alter the international law principles of responsibility. {Supra, sec. 89.) In a few matters, as for instance, the protection of resident aliens, international law has to a limited extent adopted the municipal responsibility of a state as the measure of its international responsibility. In such cases the principles of municipal responsibility become indirectly subject to inter- national discussion. This, however, does not vitiate the principle stated. (Borchard, op. cit., 116, 178, 170.) Nor can municipal law deprive foreign states of remedies such as diplomatic intervention or the use of force recog- nized by international law, though South American States have frequently as- serted the contrary. (Ibid., p. 836.) ^''''The contention of Mr. Marcy in the case of M. Dillon, French consul at San Francisco, that the sixth amendment to the Constitution of the WRIGHT— POSITION OF FOREIGN RELATIONS 119 United States, which provides that an accused party shall have compulsory process for obtaining witnesses in his favor, should be considered as quali- fying the general and absolute terms of the consular convention with France, ' was not acquiesced in by the French government, which required their flag, when raised fq the mastheads of certain of their men-of-war at San Fran- cisco, to be saluted as a reparation for the alleged indignity to their consul.' " Mr. Fish, Secretary of State, to Mr. Bassett, Oct. i8, 1872, Moore, Digest, 5: 81. See also Borchard, op. cit., p. 201, 226, 839, 845. Infra, sec. 31. 11 Borchard, op. cit., pp. 181, 838 et seq., Moore, Digest, 6: 309-324- There have been numerous cases in which the legislative abrogation of a treaty or the passage of laws in conflict with international law or treaty, though valid in municipal law, have proved no defense to international protests. See Moore, Digest, 5 : 357, 365. For principles of municipal law governing the application of constitutions, statutes and ordinances in violation of in- ternational law, see Wright, Am. Jl. Int. Law, 11: i, 566. China refused to accept' the exclusion acts as an excuse for violations of her treaties (For references to her protests, see Moore, Digest, 4: 198, 202, 213, 235) and the U. S. Supreme Court recognized that these laws though valid in municipal law were no defense in international law. " It must be conceded that the act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplementary treaty of 1880, but it is not on that account in- valid or to be restricted in its enforcement (in municipal law). . . . The question whether our government was justified in disregarding its engage- ments with another nation is not one for the determination of this court. . . . This court is not a censor of the morals of the other department's of the government." (Chinese Exclusion Cases, 130 U. S. 589, 600.) President Hayes by vetoing an earlier act (1879) had recognized the impossibility of avoiding international responsibility by legislation. " Were such delay fraught with more inconveniences than have ever been suggested by the interests most earnest in promoting this legislation, I cannot but regard the sum- mary disturbance of our existing treaties with China as greatly more in- convenient to much wider and more permanent interests of the country. I have no occasion to insist upon the more general considerations of interest and duty which sacredly guard the faith of the nation, in whatever form of obligation it may have been given." (Message, March i, 1879, Richard- son, Messages and Papers of the President's, 7: 519.) The matter was suc- cinctly explained by Secretary of State Fish in 1876. " Of course, in speak- ing of the effect of subsequent legislation upon the provisions of a prior treaty, I refer only to the effect in the country where the legislation is enacted, and upon the officers and people of that country. The foreign nation, whose rights are invaded thereby, has no less cause of complaint and no less right to decline to recognize any internal legislation which presumes to limit or curtail rights accorded by treaty." IVIoore, Digest, 5 : 365. Wharton, Digest, i: 35. 12 Borchard, op. cit., p. 214. The lack of legislation to give effect to international law was not thought by Great Britain to absolve the United States from responsibility for its failure to secure the release of Alexander McLeod from state jurisdiction in 1841. (Lord Ashburton, British Minister, to Secretary of State Webster, July 28. 1842, Moore, Digest, 2: 28.) Italy 120 WRIGHT— POSITION OF FOREIGN RELATIONS decisions^^ as mitigations of international responsibility. It fol- was not deterred from pressing her claims on account of the Louisiana lynchings during the nineties by the plea that the United States had not passed legislation necessary to give effect to treaties. (Moore, Digest, 6: 848, United States Foreign Relations, 1901, 283-299.) The United States saw no merit in the British contention that lack of legislation excused it's failure to prevent departure of the Alabama in 1862 and the Geneva Arbitra- tion of 1871 upheld the American position saying, " The government of Her Britannic Majesty cannot justify itself for failure in due diligence on the plea of insufficiency of the legal means of action which it possessed." (Moore, Digest, 6: 1061 ; Malloy, Treaties of the United States, i: 719; Moore, International Arbitrations, 4: 4101-4109; Digest, 7: 878.) The American Continental Congress recognized this need of legislation in order to meet many international responsibilities and urged the passage of suitable laws by the states (Journ. Congress, 7: 181; Ford ed., 21: 1137). The Constitu- tion authorizes such legislation (Art. i, sec. 8, cl. 10) and Congress has enacted many statutes for this purpose. (Wright, Enforcement of Int. Law through Municipal Law, pp. 221-223; infra, sees. 112-122.) Presidents have repeatedly urged further legislation of this character, especially legislation giving federal courts jurisdiction adequate to protect the treaty rights of •aliens. (Pres. Harrison, Message, Dec. 9, 1891 ; Pres. McKinley, Messages, Dec. S, 1899, Dec. 3, 1900; Pres. Roosevelt', Message, Dec, 1906; Pres. 'Taft, The United States and Peace, N. Y., 1914, pp. 64-68.) The courts, lattorneys general and text writers have insisted that the passage of such legislation is a constitutional duty of Congress. (Iredall, J., in Ware V. Hylton (1796), i Dall, 199; Gushing, Att. Gen. 6 Op. 291 (1854), Moore, 5 : 370 ; Willoughby, Constitutional Law, i : 487 ; Wheaton, Elements of In- ternational Law, sec. 266, Dana's note, pp. 339, 715.) We may agree with Mr. Root : " It is to be hoped that our government wilt never again attempt to shelter itself from responsibility for the enforcement of Its treaty obli- gations to protect foreigners, by alleging its own failure to enact the laws necessary to the discharge of those obligations." (Proc. American Society of Int. Lazu, 4: 25.) See also excellent article by C. C. Hyde, Proc. Acad, of Pol. Sci, 7 ■■ 558. 13 " This department has contested and denied the doctrine that a gov- ernment may set up the judgment of one of its own courts as a bar to an international claim, when such judgment is shown to have been unjust or in violation of the principles of international law." (Report of Mr. Bayard, Sec. of State, to the President, Feb. 26, 1887. Sen. Ex. Doc. 109, 49th Cong., 2d Sess., Moore, Digest, 6: 667.) See also The Betsey, U. S. v. Great Britain, adjudicated by the mixed commission formed under Article 7 of the Jay treaty of 1794. Moore, Int. Arb., 3 : 3208, especially Commissioner Pinckney's opinion (Ibid., 3 : 3182) ; Wheaton's argument in the Danish claims arbitration, Moore, Int. Arb., 5 : 4555 ; Hale's Report of Commission formed under Article 12 of the Treaty of Washington, 6: 88, Moore, Int. Arb. 3: 3209; Wharton, Digest, 2: 672; Moore, Digest, 6: 695-697; Cotes- worth and Powell Case, Great Britain v. Colombia, Moore, Int. Arb., 2: 2081; Justice Davis in Gushing, Administrator, z'. U. S., 22 Ct. cl. i, 1886; WRIGHT— POSITION OF FOREIGN RELATIONS 121 lows that discussions of international responsibility can hardly be fruitful unless the organ for discussing is itself free of municipal restrictions. Thus, in a protest to Great Britain against alleged violations of neutral rights at sea, Secretary of State Lansing answered the British contention, that American citizens deeming themselves aggrieved could get relief in the prize courts, by calling attention to the restrictions placed upon these courts by orders in Council : " The United States government feels," he wrote, " that if cannot rea- sonably be expected to advise its citizens to seek redress before tribunals which are, in its opinion, unauthorized by the unrestricted application of international law to grant reparation, nor to refrain from presenting their claims directly to the British government through diplomatic channels." i* This requirement that states maintain a definite representative authority is, however, specifically evidenced by the authority of text writers^^ and by practice. Thus where no such representative Ralston, International Arbitral Law and Procedure, pp. 29, 310; Borchard, op. cit., pp. 197, 342; Dana's Wheaton, sec. 391 et seq., note, p. 483; Bluntschli, Le Droit International Codifie, 4th ed., Paris, 1886, sec. 851 ; Oppenheim, Int. Law, 2d ed., London, 1912, 2: 557; Lawrence, Principles of Int. Law, 4th ed., p. 479; Earl Grey to Mr. Page, Ambassador to Great Britain, July 31, 1915, United States White Book, European War, No. 2, p. 182, par. 9. See also supra, note 30. 1* U. S. White Book, European War No. 3, p. 37. The force of Secre- tary Lansing's argument was evidently felt by the British prize courts, for a few months later the Judicial Committee of the Privy Council handed down the decision of the Zamora which held prize courts competent to apply inter- national law irrespective of conflicting orders in council. " It is obvious, how- ever, that the reason for this rule of diplomacy (that aggrieved neutrals should exhaust his remedies in belligerent prize courts before appealing to the diplomatic intervention of his own government) would entirely vanish if a Court of Prize, while nominally administering a law of international obli- gation, were in reality acting under the direction of the Executive of the belligerent Power." (L. R. 1916, 2 A. C. 77.) The difficulty arising from the fact that even the representative organ is necessarily restricted by the Constitution has been referred to (sec. 4), but this organ must be free of other municipal law restrictions. 15 " As a state is an abstraction from the fact that a multitude of in- dividuals live in a country under a sovereign Government, every State must have a head as its highest organ, which represents it, within and without its borders, in the totality of its relations. . . . The Law of Nations pre- scribes no rules as regards the kind of head a State may have. . . . Some kind or other of a head of the State is, however, necessary according to International' Law. as without a head there is no State in existence, but anarchy." (Oppenheim, International Law, vol. i, sec. 341.) " Sovereigns 122 WRIGHT— POSITION OF FOREIGN RELATIONS authority exists, or where it exists but its control is so ineffective that it cannot in fact represent the state recognition has usually been withheld or regular diplomatic relations have been broken. " No power," says Westlake, " would willingly try to weave ties with a rope of sand." ^^ as the universal representatives of states can be considered as having inde- pendently a personality under the law of nations." (Rivier, Principes du droit des gens, i : 51, Moore, Digest, i : 17.) See also Phillimore, Int. Law, 3d ed., i : 81 ; Sec. of State Fish, Feb. 21, 1877, Moore, Digest, i : 250. 1^ Recognition and the maintenance of diplomatic intercourse are dis- cretionary with each state, but by examining the conditions under which recognition has been accorded or relations broken we can discover what perfection of organization modern states actually regard as prerequisite to entry into international intercourse. In recognizing new states, the primary consideration has been the actual state of independence of a community of people occupying a definite terri- tory, but as Westlake points out, " The recognizing powers must respectively be satisfied that the new state gives sufiicient promise of stability in its government'. No power would wilhngly try to weave ties with a rope of sand." (Int. Law, i : 50.) (For practice in recognizing new states see Moore, Digest, i: 74-119.) Thus the possession of a stable government is a prerequisite to recog- nition of a state. Does it follow that if the government of a recognized state dissolves or undergoes convulsions the state departs from the family of nations? Publicists say not — but in practice its membership is in abeyance until a new government is recognized. The nature of the recognition of a new government has been much discussed, some asserting that it has no place in international relations (Hall, op. cit., p. 20; Woolsey, Int. Law, p. 39; Twiss, Int. Law, i: 21) or is a mere formality (Goebel, Recognition Policy of the U. S., Columbia University Studies in History, Economics and Public Law, 66: 67) but in practice the recognition or non-recognition of a government may have important results, as witness the American policy toward the governments of Huerta in Mexico (1914), Tinoca in Costa Rica (1916) and Lenin in Russia (1917). Practice shows that a radical change in a state's constitution is a matter of international consid- eration and that the new government must present prospects of reasonable stability and responsibility before the state can again enter into official inter- national relations. The various criteria which have been followed at different times for judging of such stability and responsibility such as (i) defacto control, (2) legal continuity or legitimacy, or (3) consent of the members of the state need not detain us here. (For American practice in recognition of new governments see Moore, i: 119-164.) Finally even when a recognized state has a recognized government it may still be unable to maintain international relations if that government presents no definite authority able to meet international responsibilities. Because of this lack the United States under the Articles of Confederation had difficulty in exchanging diplomatic officers with other states. Thus WRIGHT— POSITION OF FOREIGN RELATIONS 123 12, The President is the Representative Authority in the United States. In the United States, the President, acting through the De- partment of State, is this representative authority, " The president," said John Marshall while in Congress, " is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made of him." ^^ " The Executive," reported the Senate Foreign Relations Committee in 1897, " is the sole mouthpiece of the nation in communication with foreign sovereignties." ^^ The same has been reiterated by courts,^^ by commentators,^" by Congress^^ and by the President himself in official communica- Hamilton said of the Confederation, " The treaties of the United States, under the present constitution, are liable to the infractions of thirteen dif- ferent legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. ... Is it possible that foreign na- tions can either respect or confide in such a government?" (Federalist, No. 22, Ford ed., p. 141.) See also remarks of James Wilson and Madison in the Federal Convention of 1787, Farrand, Records of the Federal Con- vention of 1787, 1 : 426, 513. Even after the Constitution was in efifect the apparent irresponsibility of the President for acts committed within the states violative of international rights of foreigners caused Italy to with- draw its minister. (Moore, Digest, 6: 837-841.) Practice seems to show that states must maintain a stable government with a single definite repre- sentative organ under penalty of international ostracism. 17 Benton, Abridgment of Debates of Congress, 2 : 466. 1854th Cong., 2d Sess., Sen. Doc, No. 56, p. 21. 1^ " As the Executive head of the nation, the President is made the only legitimate organ of the General Government, to open and carry on cor- respondence or negotiations with foreign nations, in matters concerning the interests of the country or of its citizens." Nelson, J., in Durand t'. HoUins, 4 Blatch, 451, 454. 20 " Official communications involving international relations and general international negotiations are within the exclusive province of the Depart- ment of State, at the head of which stands the Secretary of State." (Wil- son and Tucker, op. cit., p. 187.) "A foreign minister here is to correspond with the Secretary of State on matters which interest his nation, and ought not to be permitted to resort to the press. He has no authority to communicate his sentiments to the people by publications, either in manu- script or in print, and any attempt to do so is contempt of this Government. His intercourse is to be with the executive of the United States only, upon matters that concern his mission or trust'." (Lee, Attorney General, i Op. 74. 1797, Moore, Digest, 4: 682.) See also supra, notes 17, 18. -1 " In 1874, Congress declared that claims of aliens cannot properly be examined by a committee of Congress, there being a Department of this 124 WRIGHT— POSITION OF FOREIGN RELATIONS tions to Congress-^ and to foreign nations.^^ The President's posi- tion as the exclusive organ for communication with foreign nations is a well-estabHshed implication from the powers expressly delegated to him by the constitution to receive and to commission diplomatic officers.^'* But this position is not founded merely on the con- Government in which most questions of an international character may be considered — that which has charge of foreign affairs : that Congress cannot safely and by piecemeal surrender the advantage which may result from diplomatic arrangements ; that this has been the general policy of the Government, and Congress has not generally entertained the claims of aliens and certainly should not unless on the request of the Secretary of State (See Report No. 498, Committee on War Claims, ist Sess., 43d Cong., May 2, 1874)," Moore, Digest, 6: 608; Senate Report, supra, note 18. Apparently attempts to negotiate with foreign governments except under authority of the President is a criminal offense under the Logan Act, Jan. 30, 1799, Rev. Stat., sec. 5335, Criminal Code of 1909, Art. 5, Moore, Digest, 4: 449. See also infra, sec. 17. 22 " The Constitution of the United States, following the established usage of nations, has indicated the President as the agent to represent the national sovereignty in it's intercourse with foreign powers, and to receive all official communications from them, . . . making him, in the language of one of the most eminent writers on constitutional law, ' the constitutional organ of communication with foreign states.'" (President Grant, Message vetoing two joint resolutions in response to congratulations of foreign states on the occasion of the Centennial exposition, Richardson, op. cit., 7: 431.) 23 '" But,' said he (Citizen Genet), 'at least. Congress are bound to see that the treaties are observed.' I told him no ; there were very few cases indeed arising out of treaties, which they could take notice of; that' the President is to see that treaties are observed. ' If he decides against the treaty, to whom is a nation to appeal?' I fold him the Constitution had made the President the last appeal. He made me a bow, and said, that indeed he would not make me his compliments on such a Constitution, ex- pressed the utmost' astonishment at it, and seemed never before to have had such an idea." (Sec. of State Jefferson, Moore, Digest, 4: 680.) "I do not refer to this for the purpose of calling the attention of the Imperial German Government at this time t'o the surprising irregularity of a com- munication from the Imperial German Embassy at Washington addressed to the people of the United States through the newspapers, but only, etc." (Secretary of State Bryan to Mr. Gerard, American Ambassador at Berlin, May 13, 1915, White Book, European War No. i, p. 76.) See also infra, sec. 13. 2* " The President is the organ of diplomatic intercourse of the Gov- ernment of the United States, first, because of his powers in connection with the reception and dispatch of diplomatic agent's and with treaty making; secondly, because of the tradition of executive power adherent to his office." WRIGHT— POSITION OF FOREIGN RELATIONS 125 stitution. It has apparently acquired a certain foundation in in- ternational law through recognition by foreign nations. Thus foreign nations have habitually presented their claims to the Pres- ident through the Department of State. "All foreign powers recognize it (the Department of State)," wrote Secretary of State Seward, " and transmit their communications to it, through the dispatches of our ministers abroad, or their own diplomatic representatives residing near this Government. These communications are submitted to the President, and, when proper, are replied to under his direc- tion by the Secretary of State. This mutual correspondence is recorded and preserved in the archives of this Department. This is, I believe, the same system which prevails in the governments of civilized states everywhere." -° The only exception to this rule appears to be in matters of a private law nature litigated before the courts."*' In matters of in- ternational law foreign nations have sometimes been willing to permit trial of the issue in the courts first, ^^ but they have always reserved the right to carry the case before the President (through the Department of State) later, if they think the decision unjust.^® In important matters foreign governments have refused to follow a suggestion for settlement in the courts.-® They have been equally (Corwin, The President's Control of Foreign Relations, p. 33.) See also Wright. Columbia Law Rev., 20: 131. 25 Mr. Seward, Secretary of State, to Mr. Dayton, Minister to France, June 27, 1862, Moore, Digest, 4: 781. See also Borchard, op. cif., p. 355. Congressional Committees may not hear such claims, supra, note 22. " The Department of State has explained that claims against the Government can be presented only in one of two ways: (i) Either by the claimant's availing himself directly of such judicial or administrative remedy as the domestic law might prescribe; or (2) in the absence of such remedy, if the claimant was an alien, by his government ' formally presenting the claim as an international demand to be adjusted through the diplomatic channel.' " (Acting Secretary of State Davis to Baron de Fava, Italian Minister, July 9, 1884. Moore, 6: 608.) 2" Foreign states are entitled to bring suit in United States courts, state or federal (Mexico v. Arrangoiz, 11 How. Prac. i, N. Y. 1855; King of Prussia v. Kupper, 22 Mo. 550, 1856; King of Spain v. Oliver, i Peter's C. C. 217, 276, 1810; The Sapphire, 11 Wall. 164, 1870), and the United States Court of Claims has a limited jurisdiction of claims against the government. (Borchard, op. cit., 164.) See also Westlake, op. at., i : 250. 27 Supra, note 6. 28 Supra, note 13. 29 See suggestions for judicial settlement of the California-Japanese School and Land Ov.mership questions. (Corwin, op. cit., p. 108; H. M. Dilla. Mich. L. R., 12: 583.) In a note of March 16, 1916, with reference to the Appam, a British vessel captured by Germany and brought to a 126 WRIGHT— POSITION OF FOREIGN RELATIONS unresponsive to suggestions for a discussion of international claims with the state governments within the United States. ^° They have United States port, the German government said : "The opinion of the De- partment of State that the American cpurts must decide about the claims of the British Shipping Company is incompatible with the treaty stipulations. It is, therefore, respectfully requested that the legal steps before an American court should be suspended." The American answer of April 7, 1916, " holding the view that Article 19 is not applicable to the case of the Appam, this Government does not consider it necessary to discuss the contention of the Imperial Government that under Article 19 American courts are without jurisdiction to interfere with the prize," appears satisfactor\-. It is, there- fore, unfortunate that the note added the following inadmissible argument. " Moreover, inasmuch as the Appam has been libeled in the United States District Court by the alleged owners, this Government, under the American system of government, in which the judicial and executive branches are entirely separate and independent, could not vouch for a continuance of the status quo of the prize during the progress of the arbitration proposed by the Imperial Government. The United States Court, having taken jurisdiction of the vessel, that jurisdiction can only be dissolved by judicial proceedings leading to a decision of the court discharging the case — a procedure which the executive cannot summarily terminate." However correct this may be from the standpoint of constitutional law it could not justify a failure to meet international responsibilities. (Supra, note 13. White Book, European War, No. 3, pp. 340, 343.) The United States has been similarly reluctant to leave important matters of international law to foreign courts. In a note of June 24, 1915, with reference to indemnity for destruction of the United States vessel Wil- liam P. Frye, by Germany, Secretary Lansing wrote, " The Government of the United States, therefore, suggests that the Imperial German Govern- ment reconsider the subject in the light of these considerations, and because of the objections against resorting to the Prize Court the government of the United States renews its former suggestion that an efifort be made to settle this claim by direct diplomatic negotiations." (Op. cit.. No. 2, p. 187; see also note of April 28, 1915, op. cit., No. i, p. 88.) 30 See Louisiana Lynching Cases, U. S. For. Rel., 1891, pp. (^S-(>^7, 6-1-672, 674-686, 712-713, Ibid., 1901, p. 253; Moore, Digest, 6: 837. "We should not be obliged to refer those who complain of a breach of such an obligation to governors of states and county prosecutors to take up the procedure of vindicating the rights of aliens which have been violated on American soil." (Taft, Proc. Am. Soc. of Int. Lazv, 4: 44.) The United States has taken a similar attitude as to claims against foreign states. " This government cannot with propriety apply to the authorities of Yucatan for redress, that province constituting only a part of the Republic of Mexico, which is responsible in the last resort for all injuries which the judicial tribunals may have neglected or may have been incompetent to redress." (Mr. Calhoun, Secretary of State to Mr. Holmes, Nov. 20, 1844, Moore, Digest, 4: 682.) WRIGHT— POSITION OF FOREIGN RELATIONS 127 insisted upon discussion with the President, through the Depart- ment of State,^^ have accepted the President's interpretation of the responsibihties as the voice of the nation^- and the United States has acquiesced.^^ Thus, though the Presidency is primarily an office under the constitution, it is also an office with distinctive functions and, it may be added, enjoying privileges^* under international law. Does it follow that an attempt to alter the international functions of the office by constitutional amendment would involve a violation of international law? We believe not. Such an amendment would be a matter for international cognizance but no complaint would be justified if a new organ capable of performing the international functions of the president were substituted. International law is concerned only with the existence of a definite organ capable of giving satisfaction to demands based on international law or treaty, not with its precise form.^^ Doubtless the authority might be a council or a congress though there is an unquestionable tendency for international law to favor organs for international communica- tion of the traditional form, that is the Chief Executive acting "^ Supra, note 26. If some international organ of settlement is utilized it must of course be on the basis of express agreement. In the absence of treaty, arbitration is voluntary. See Wright, Columbia Lazv Rev., 20: 146. 32 Foreign states have insisted that executive interpretations of treaties are binding even though not submitted to the Senate (See controversies v^rith reference to notes explaining Mexican Peace Treaty of 1848 and Clayton- Bulwer treaty vi^ith England, 1850, Moore, Digest. 3: 138; 5: 205; Wright, Minn. Law Rev., 4: 22; Crandall, Treaties, their Making and Enforce- ment, 1916, pp. 85, 381) and that the President's messages to Congress are subject to mternational cognizance. (See President Jackson's threat of reprisals against France, Dec, 1834, and President Taylor's comments on the Hungarian revolt of 1848, Message, March 18, 1850, and protest's thereat, Moore, Digest, 7 : 125 ; i : 222. See also infra, sees. 19, 20. 33 In the various lynchings of aliens, especially Italians, the govern- ment has paid the indemnities demanded. Though expressly stated to be gratuities, the uniform practice seems to indicate a sense of responsibility. (jMoore, Digest, 6: 837.) The United States has sometimes refused to ac- cept presidential interpretations of responsibility. Infra, sees. 34-38. 3* The President apparently enjoys sovereign's immunities under inter- national law. See Satow, Diplomatic Practice, 1917, i: 6; Willoughby, Constitutional Law, 2: 1300, et seq.; Oppenheim, op. cit., sec. 356. 35 Hall, op. cit., p. 20, supra, note 15. 128 POWER UNDER INTERNATIONAL LAW. through a foreign minister.^'' However, until the constitution has been amended to this effect, and the change has been recognized by foreign nations, they will be entitled to look to the President as the authority to whom they may present their claims and from whom they may expect satisfaction according to the standard of international law and treaty. Now there is danger of misunderstanding. This does not mean that foreign nations are entitled to consider the President com- petent to commit the United States to all sorts of international re- sponsibilities. A treaty or any other international obligation is valid only when the consent of the state is tacitly or expressly given,^'^ and to determine the reality of consent the constitutional law of the state must be appealed to. Only the organs there designated, each within its constitutional competence,^® can bind the nation. But once the treaty or other commitment is made by the proper constitutional authority, the President is, in the absence of express treaty provision to the contrary ,^^ the authority to whom they may look for its execution. CHAPTER HP Attributes of the National Representative Organ under International Law. A. Sole Agency for Foreign Communication. 13. Foreign Representatives may officially communicate with the nation only through the President or his Representatives. The position of the President as the representative organ implies that foreign nations are entitled to present their claims to him but 36 Supra, notes 22, 25. 37 Wilson and Tucker, op. cit., p. 213; Hall, op. cit., sec. 108; Wright, Minn. Lazv Rev., 4: 17. 38 Crandall, op. cit., sec. i, 2: Wheaton, Dana ed., sec. 265; Borchard, op. cit., pp. 183-184, says, " The power of officers of the government, superior and inferior, to bind the government is limited by their legal authority to enter into such obligations. This authority is generally strictly construed. The President of a country cannot legally grant or alter the terms of con- cessions to foreigners, if the constitutional law of the country requires the approval of Congress for such acts. Those dealing with agents of the state are ordinarily bound by their actual authority, and not, as in private POWER UNDER INTERNATIONAL LAW. 129 it also implies: (a) that they can communicate with the nation through him alone and (b) that they may take cognizance of all his official acts. Efforts of foreign governments to communicate with organs of the United States other than the President or his re- presentatives, with private American citizens or with the American people directly have been protested by the President, while efforts of American organs of government or self-constituted missions to communicate with foreign nations have been vetoed or prohibited by law. Thus in 1793 when Citizen Genet sought to obtain an exequatur for a consul whose commission was addressed to the " Congress of the United States," Secretary of State Jefferson told him that " the President was the only channel of communication between the United States and foreign nations " and refused to issue an exequatur until the commission was correctly addressed.^ In 1833 Secretary of State Livingston sent letters to the Charges of the United States in various capitals instructing them to notify the foreign minister that " all communication made directly to the head of our Executive Government should be addressed * to the President of the United States of America' without any other addition." He referred to the fact that the style of address " to the President and Congress of the United States " which had been continued since the old Confederation was no longer proper.^ In 1874 Congress itself passed a resolution refusing to consider foreign claims, " there being a department of the government in which most questions of an international character may be con- sidered."^ Political correspondence with American citizens by the law, by their ostensible authority. But in the Trumbull case (Chile v. U. S., Aug. 7, 1892, Moore, Int. Arb. 3569) the apparent authority of a diplomatic officer to contract was held sufficient to bind his government, and in the Metzger case (U. S. z: Haiti, Oct. 18, 1899, For. Rel. 262) Judge Day expressed the opinion that the ' limitations upon official authority, undisclosed at the time to the other government,' do not ' prevent the enforcement of a diplomatic agreement.'" See also Wright, Columbia Lazv Rev., 20: 121-122. Infra, sec. 24. ^^ For treaty provisions designating other organs of government as responsible, see Wright, Columbia Law Rev., 20: 123-124. 1 Moore, Digest, 4 : 680. ~ Corwin, op. cit., p. 48, citing S4th Cong., 2d Sess., Sen. Doc. No. 56, p. 9, footnote, and J. Q. Adams, Memoirs, 4 : 17-18. 3 Magoon, Reports, 1902, p. 340, Moore, Digest, 6: 608. See also supra, Chap. II, note 21. 130 POWER UNDER INTERNATIONAL LAW. resident diplomatic representative of a foreign nation has usually resulted in a demand for the recall or in the dismissal of the rep- resentative as in the case of the British Minister Lord Sackville who was led to communicate his views of the impending presidential election to an American correspondent.* Foreign ministers who have tried to talk over the head of the government directly to the people have been sharply rebuked. The government requested the recall of Citizen Genet whose misconduct in that direction became notorious^ and in the later case of the Spanish minister Yrujo, Attorney General Lee said : ® " A foreign minister here is to correspond with the Secretary of State on matters which interest his nation and ought not to be permitted to resort to the press. He has no authority to communicate his sentiments to the people by pubHcations, either in manuscript or in print, and any attempt to do so is contempt of this government. His intercourse is to be with the executive of the United States only upon matters that concern his mission or trust." More recently Ambassador Bernstorfif's newspaper warning to American citizens to keep off of the Lusitania was referred to by Secretary of State Lansing as " the surprising irregularity of a communication from the Imperial German Embassy at Washington addressed to the people of the United States through the news- papers." "^ 14. National Organs of Government other than the President or his Representatives may not communicate. The United States has likewise taken steps to prevent its organs of government other than the President, from communicating with foreign governments. President Grant's veto of two resolutions passed by Congress in response to congratulations on the Centennial Exposition of 1876 is typical of the fate of such resolutions of Congress. " The Constitution of the United States," wrote Pres- ident Grant, " following the established usage of nations, has in- * Pres. Cleveland, Annual Message, Dec. 3, 1888, Richardson, Messages of the Presidents, 8: 780, Moore, Digest, 4: 537-548. 5 Moore, Digest, 4, 487. 6 Lee, Att. Gen., i Op. 74 (1797), Moore, Digest, 4: 682. ■^ Mr. Bryan, Sec. of State, to Mr. Gerard, Ambassador to Germany, May 13, 1915, U. S. White Book, European War, No. i, p. 76. POWER UNDER INTERNATIONAL LAW. 131 dicated the President as the agent to represent the national sover- eignty in its intercourse with foreign powers." ^ 15. National and State Laws subject to International Cognisance. There appears, however, to be an exception to this rule in the cognizance which foreign nations take of state or national laws. In the states, statutes usually become effective upon signature by the governor, or if passed over his veto, upon signature by the Clerk of the last House of the Legislature to act. Sometimes there is provision for official publication, sometimes not, but there is never requirement for formal communication to foreign nations through the President of the United States.^ Yet foreign nations have taken cognizance of such statutes deemed to be in violation of their rights under international law or treaty, as illustrated by Japanese protests at anti-alien legislation in California and other states." The United States has itself recognized that state laws are subject to international cognizance by occasionally concluding treaties, the operation of certain clauses of which is made de- pendent upon state law. Thus article VII of the treaty of 1853 with France allowed French citizens to possess land on an equality with citizens " in all states of the Union where existing laws permit it, so long and to the same extent as the said laws shall remain in force." 1^ s Richardson, op. cit., 7: 431; supra, sec. 12, infra, sec. 202. 9 Field V. Clark, 143 U. S. 649 (1892), appended note. Finley and Sanderson, The Am. Executive and Executive Methods, N. Y., 1908, p. 81 ; Reinsch, Am. Legislatures and Legislative Methods, N. Y., 1913, p. 142. I*' On controversy as to the rights of Japanese School Children in Cali- fornia, 1906, see E. Root, Am. Jl. of Int. Law, i : 273 and editorials, i : 150, 449; Corwin, National Supremacy, 1913, p. 217. On controversy as to Japanese right to hold land, 1913, and since, see Editorial, Am. Jl. Int. Law, 8: 571, Moore, Principles of Am. Dip., p. 191, and Corwin, op. cit., p. 232, Am. Year Book, 1917, p. 48. 11 See also Art. IV of the treaty of 1854 with Great Britain by vi^hich " the Government of the United States further engages to urge upon the state governments to secure to the subjects of Her Britannic Majesty the use of the several state canals on terms of equality with the inhabitants of the Ignited States." By Art. V of the treaty of peace with Great Britain of 1783 it is agreed that " Congress shall earnestly recommend it to the legislatures of the respective states, to provide for the restitution of the estates," etc., of the Loyalists. PROC. AMER. PHIL. SOC., VOL. LX., J, MARCH 6, l922. 132 POWER UNDER INTERNATIONAL LAW. Acts or resolutions of Congress become effective upon signature by the President, or if passed over his veto, upon signature by the Clerk of the last House of Congress to act.^- Amendments to the Federal Constitution become effective upon proclamation by the Secretary of State. ^^ Treaties become effective as domestic law upon proclamation by the President, but as between nations they are effective from signature if ratifications are subsequently exchanged.^* Only in the case of treaties is there any official proc- lamation by the President, yet all of these instruments, declared supreme law by article VI of the Constitution, are subject to inter- national cognizance immediately upon becoming effective. ^^ For- eign nations, in fact, always taken cognizance of acts of Congress deemed to be in violation of their rights under international law or treaty as did China of the exclusion acts^" and Great Britain 12 Rev. Stat., sec. 204, amended Dec. 28, 1874, 18 Stat., 294, sec. 2, Comp. Stat., sec. 302, and supra, note 9. The Secretary of State is required to furnish copies of valid resolutions and acts of Congress and treaties to the Congressional Printer " as soon as possible " after they have become "law." Rev. Stat., sec. 308. 13 Rev. Stat'., sec. 205, Comp. Stat., sec. 303. 1* Rev. Stat., sec. 210, Comp. Stat., sec. 308. Treaties must be published in one newspaper in the District of Columbia to be designated by the Secretary of State, Act July 31, 1876, 19 Stat., 105, Comp. Stat., sec. 7184. " It is undoubtedly true as a principle of international law, that, as re- spects the rights of either government under it, a treaty is considered as concluded and binding from the date of its signature. In this regard the ex- change of ratifications has a retroactive effect, confirming the treaty from its date. (Wheat, Int. Law, by Dana, 336.) But a different rule prevails where the treaty operates on individual rights. ... In so far as it affect's them it is not considered as concluded until there is an exchange of ratifica- tions. ... In this country a treaty is something more than a contract, for the federal constitution declares it to be the law of the land. If so, before it can become a law, the Senate, in whom rests the authority to ratify it, must agree to it. But the Senate are not required to adopt or reject it as a whole, but may modify or amend it, as was done with the Treaty under consideration. As the individual citizen, on whose rights of property it op- erates, has no means of knowing anything of it while before the Senate, it would be wrong in principle to hold him bound by it. as the law of the land, until it was ratified and proclaimed." Haver v. Yaker, 9 Wall., 32. 15 Infra, sec. 22. iG Chinese Protests against Act of Oct. i, 1888, see U. S. For. Rel., 1889, 1 15-150, Ibid., 1890, 177, 206, 210-219, 228-230; against Act of May 5, 1892, see Ibid., 1892, 106, 118, 119, 123, 126, 134-138, 145, 147-155, 158," cited Moore, Digest, 4 : 198, 202. POWER UNDER INTERNATIONAL LAW. 133 of the Panama Canal tolls act of 1911.^^ In the latter case Secre- tary of State Knox maintained that such protest was not proper until action under the statute had actually impaired British rights or as least until executive proclamation to give effect to the statute had issued but his view does not seem to have been accepted. The British ambassador replied : ^® " His Majesty's government feel bound to express their dissent. They conceive that international law or usage does not support the doctrine that the passing of a statute in contravention of a treaty right affords no ground of complaint for the infraction of that right, and that the nation v^rhich holds that its treaty rights have been so infringed or brought into question by a denial that they exist, must, before protesting and seeking a means of de- termining the point at issue, wait until some further action violating those rights in a concrete instance has been taken." So also foreign nations enjoying most favored nation com- mercial privileges by treaty with the United States, have always applied for the advantages assured by such treaties upon the taking efifect of any act or treaty which gives a favor to other nations. Thus Germany and other countries applied under most favored nation clauses for a reduction of the tonnage dues on their vessels upon passage of the act of 1884 which reduced tonnage dues upon vessels from specified ports in the western hemisphere,^^ and Switzerland gained recognition of her claim for an application of the most favored nation clause in her treaty of 1855 upon the conclusion of a treaty in 1898 by which the United States had given commercial favors to France. ^° 16. Legislative Expressions of Opinion not of International Cog- nisance. Though all acts, prima facie law, are subject to international cognizance without transmission through the President, whether they originate in state constitutional or legislative provisions or in national constitutional, legislative or treaty provisions, this is not 17 Mr. Innes, Charge d'Affaires of Great Britain, to Secretary of State Knox, July 8 and Aug. 27, 1912, Diplomatic History of the Panama Canal, 63d Cong., 2d Sess., Sen. Doc, No. 474, pp. 82-83. 1* Ibid., p. loi. 19 Report of Mr. Bayard, Sec. of State, to the President, Jan. 14, 1889, 50 Cong., 2d Sess., H. Ex. Doc, No. 74, Moore, Digest, 5: 289. 20 Moore, Digest, 5 : 283-285. 134 POWER UNDER INTERNATIONAL LAW. true of legislative resolutions not law. Thus resolutions of a single house of congress or concurrent resolutions not submitted to the President are not law according to the Constitution and have not been noticed by foreign nations.-^ This has been expressly held by the courts with reference to such resolutions purporting to interpret treaties.^- Thus the houses of Congress have been able to pass resolutions on such questions as Irish independence without ^1 Secretary of State Seward wrote Mr. Dayton, the minister to France, with reference to a House Resolution declaring " that it does not accord with the policy of the United States to acknowledge a monarchical govern- ment erected on the ruins of any Republican government in America, under the auspices of any European power," reference being to the Maximilian government in Mexico : " This is a practical and purely Executive question, and the decision of it constitutionally belongs not to the House of Repre- sentatives, nor even to Congress, but to the President of the United States, . . . While the President receives the declaration of the House of Repre- ■sentatives with the profound respect to which it is entitled, as an exposition t able to raise reclamations if the treaty fails in one of these phases." 1* Borchard, Diplomatic Protection of Citizens Abroad, p. 184. 15 Metzger (U. S.), Haiti, Oct. 18, 1894, U. S. For. Rel., p. 262, cited Borchard, loc. cit. See also Trumbull (Chile) z: U. S., Aug. 7, 1892, Moore, International Arbitrations, p. 3569. 1^ The conclusion of a treaty involves three steps: (i) exchange of full powers, negotiation and signature, (2) consent to ratification with or without reservations and ratification, (3) exchange of ratifications. Often legislation must be passed before the treaty becomes executable and " putting into effect " may be considered a fourth step in the conclusion of a treaty. In the United States legislation is not needed for self-executing treaties which are executable after proclamation by the President. However, under international law, the treaty is complete and binding after exchange of rati- 142 WRIGHT— CONCLUSIVENESS OF THE ACTS the negotiators. Although these, if satisfactory, originally signified an actual full power of the negotiators to bind the state within the limits of their instructions, at present they are understood to mean that the negotiator is vested merely with the powers of the organ under whose authority he acts, usually in practice the representa- tive organ. ^" Suppose the organ giving " full powers " to the negotiator is the full treaty-making power of the state. It was held by early publicists that in such cases the document when signed bound the state and ratification became a mere form which could not be refused except for the most cogent reasons. ^^ Though recent opinion is less definite, yet it holds that a strong obligation to ratify exists^'' and this has been the view of the United States. Thus in 1802 and in 1819 the Secretary of State insisted that the Spanish crown was under an absolute obligation to ratify the treaties which had been made within the instructions of the negotiators acting under full powers of the Crown. ^° The United States has also fications and the parties are responsible for a failure to take measures neces- sary to put them into effect. See Wright, Am. Jl. of Int. Lazv, 10: 710 (Oct., 1916), Crandall, op. cit., p. 345; Anson, The Law and Custom of the Con- stitution, 3d ed., Oxford, 1907, vol. 2, pt. i, p. 54. 1''' Wheaton, International Law (Dana, ed.), pp. 2>2>7, 338; Crandall, op. cit., p. 2; Moore, Digest, 5: 184, 362; Satow, Diplomatic Practice, London, 1917, 2: 273; Harley, Am. Jl. Int. Law, 13: 389 (July, 1919), Wright, Minn. Law Rev., 4: 18. 1^ Grotius, Dc Jure Belli ac Pads, c. 11, sec. 12; Vattel, Le Droit des Gens, 2, c. 12, sec. 156; Martens, Precis des Droit de Gens, c. i, sec. 36. 19 After citing five authorities supporting an absolute obligation to ratify, thirteen for a moral obligation, eight for no obligation at all, and the circumstances of ten causes celcbres in which ratification was refused, Harley, loc. cit., concludes, " It would seem that the weight of opinion holds that a moral obligation to ratify exists." See also Moore, Digest, 5: 187; Scott, The Reports of the Hague Conferences of 1899 and 1907, London, 1917, introduction, p. xxcii; Hall, International Law (Higgins, ed.), p. 341. 20 A claims convention signed with Spain in 1802 was rejected by the Senate but on new evidence being presented, the Senate changed its mind. Now, however, Spain refused to ratify. " Were it necessary," replied Sec- retary Madison, " to enforce these observations by an inquiry into the right of His Catholic Majesty to withhold his ratification in this case, it would not be difficult to show that it is neither supported by the principles of public law, nor countenanced by the examples which have been cited." Mad- ison to YrujO: Oct. 15, 1804, Am. St. Pap., For. Rel., 2: 625. The con- AND UTTERANCES OF NATIONAL ORGANS. 143 admitted the same principle with reference to its own ratification when instructions have been given by the full treaty power. Thus in 1790 two-thirds of the Senate joined with the President in instruct- ing the negotiation of a treaty with the Cherokees. When the treaty was submitted for ratification, the Senate committee found that it con- formed to these instructions and consequently ratification became obligatory.-^ The same was true of the consular convention with France signed in 1788 according to instructions of Congress which had power to make treaties under the Articles of Confederatioa. The treaty was submitted to the Senate for ratification after or- ganization of the new government under the Constitution. On his advice being asked, John Jay, who continued in charge of foreign afifairs, replied that " while he apprehended that the new conven- tion would prove more inconvenient than beneficial to the United States, the circumstances under which it had been negotiated made, in his opinion, its ratification by the Senate indispensable." The Senate immediately proceeded to ratify.-- 26. Signature under Authority of the President. In case the agreement is of a character which the President has authority to make on his own responsibility, such as protocols, vention was finally ratified by Spain in 1818. Almost immediately a similar controversy arose over the Florida cession treaty. Secretary Adams said, " The President considers the treaty of 22d February last as obligatory upon the honor and good faith of Spain, not as a perfect treaty, ratification being an essential formality to that, but as a compact which Spain was bound to ratify." He then drew an analogy between an imratified treaty and a covenant to convey land, asserting that " the United States have a perfect right to do what a court of chancery would do in a transaction of similar character between individuals, namely, to compel the performance of the engagement as far as compulsion can accomplish it, and to indemnify themselves for all the damages and charges incident to the necessity of using compulsion." It should be noted that in the full powers of his plenipotentiary, the Spanish monarch had expressly promised to ratify " whatsoever may be stipulated and Figned by you." 5 Moore, Digest, 189-190. In both of these cases the United States distinguished its own position, in which the recognized constitutional rights of the Senate precluded an obligation to ratify. 21 Crandall, op. cit., p. 79. The question might be raised whether such a delegation is not an unconstitutional delegation of legislative power. See infra, sec. 60. 22 Crandall, loc. cit.; Hayden, The Senate and Treaties, 1789-1817, N. Y., 1920, p. 7. 144 WRIGHT— CONCLUSIVENESS OF THE ACTS truces and armistices, he is bound by the act of his agents acting within their instructions. In such cases where the agent acts beyond his instructions, as did General Sherman in concluding an armistice with General Johnston in 1865, the President may repudiate the agreement as did President Lincoln on this occasion.^^ In the case of treaties, full powers and instructions are generally from the President alone, although ratification requires the consent of the Senate. Consequently the latter retains full discretion to refuse ratification of the signed instrument.^* The Senate has often rejected treaties and the practice was thus justified by Secretary of State Clay : -^ "The government of his Britannic Majesty is well acquainted 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 treaties. According to the practice of this government the Senate is not ordinarily consulted 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." Foreign nations have acquiesced in the practice though occasion- ally exception has been taken to the practice of amendment or reservation by the Senate on the ground that such amendments present a virtual ultimatum to the foreign government to accept or reject, leaving no opportunity for negotiation.-* "His Majesty's Government," wrote Lord Lansdowne, refusing to accept the first Hay-Pauncefote treaty as amended by the Senate, " find them- selves confronted with a proposal communicated to them by the United States Government, without any previous attempt to ascertain their views, for the abrogation of the Clayton-Bulwer treaty." Objection is here taken to a breach of diplomatic etiquette in method but the full power of the United States under international law to refuse ratification or to consent only if certain alterations are made, is not denied. -3 Halleck, International Law, 4th ed. (Baker), 2: 356, infra, sec. 167. -* Supra, note 17. 25 Moore, Digest, 5 : 200. See also Foster, Practice of Diplomacy, N. Y., 1906, p. 276. 26 Willoughby, Constitutional Law, p. 465. See also Crandall, op. cit., p. 82, Moore, Digest, 5 : 201 ; Satow, op. cit., 2 : 274. See the vigorous denunciation of the Senate amendment to the proposed King-Hawksburg treaty of 1803 by Great Britain, Am. St. Pap., For. Rel., 3: 92-94; Hayden, op. cit., p. 150. AND UTTERANCES OF NATIONAL ORGANS. 145 27. Reservations Expressly Consented to. Though the United States can not be reproached with violation of international law if it refuses to ratify or qualifies its ratification of a treaty signed by authority of the President alone, yet a qualified ratification is of no effect unless consented to by both signatories. How may this consent be evidenced? Express consent to reserva- tions by statement in the act of ratification or by exchange of notes would of course by sufficient,^^ as would acceptance without objec- -' The Senate advised ratification of the treaty with France of Feb. 3, 1801, provided a new^ article be substituted for article II. Bonaparte ratified with this modification but added a new proviso. Ratifications were ex- changed at Paris, but before proclamation President Jefferson resubmitted the treaty to the Senate which accepted Bonaparte's proviso. Malloy, Treaties, etc., p. 505. Hayden, op. cit., p. 124. After consenting to rati- fication of the General Act for the suppression of the African Slave Trade (1890), the Senate " Resolved further, That the Senate advise and consent to the acceptance of the partial ratification of the said General Act on the part of the French Republic, and to the stipulations relative thereto, as set forth in the protocol signed at Brussels, January 2, 1892." It then made a reservation on its own behalf. The protocol of deposit of ratifications of Feb. 2, 1892, provided for in Article 99 of the treaty, recites the Senate's resolution and states : " This resolution of the Senate of the United States having been preparatively and textually conveyed by the Government of His Majesty the King of the Belgians to the knowledge of all the signatory powers of the General Act, the latter have given their assent to its insertion in the present Protocol which will remain annexed to the Protocol of January 2d, 1892." Malloy, Treaties, etc., p. 1992. In the treaty of 191 1, Japan gave express assent to an " understanding " and tacit assent to an " amendment." The proclamation of President Taft reads : " And whereas, the advice and consent of the Senate of the United States to the ratification of the said Treaty was given with the understanding ' that the treaty shall not be deemed to repeal or affect' any of the provisions of the Act of Congress entitled " An Act to regulate the Immigration of Aliens into the United States," approved February 20th, 1907 ; ' " And whereas, the said Treaty, as amended by the Senate of the United States, has been duly ratified on both parts, and the ratifications of the two Governments were exchanged in the City of Tokyo, on the fourth day of April, one thousand nine hundred and eleven ; " Now, therefore, be it known that I, William Howard Taft, President of the United States of America, have caused the said Treaty, as amended and the said understanding to be made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof. In testimony whereof, etc." Charles, Treaties, etc., p. 82. An interpretation proposed by the Senate to the treaty of 1868 with the North German Confederation was duly 14:6 WRIGHT— CONCLUSIVENESS OF THE ACTS tion of an official note stating such reservations.^^ The terms of such a note must be consented to by all the organs constituting the treaty power of each state. Thus, as is the case with the treaty itself, unless the President and Senate have each consented to amendments, reservations or interpretations, the United States is not bound. Attempts of either to act separately have been unavailing. The Supreme Court said in reference to a joint resolution passed by a majority of the Senate, stating the purpose of the Senate in ratifying the treaty annexing the Philippines : ^° " We need not consider the force and effect of a resolution of this sort. . . . The meaning of the treaty can not be controlled by subsequent explanations of some of those who may have voted to ratify it." Justice Brown, concurring, said : " It can not be regarded as part of the treaty, since it received neither the approval of the President nor the consent of the other contracting power. . . . The Senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratificatiton, or make such ratification conditional upon the adop- tion of amendments to the treaty." A similar fate has met interpretations or reservations made by the President without consent of the Senate, even when accepted by the other signatory. Thus explanatory notes signed by the communicated to that government and accepted as the true interpretation of the article. It was, however, omitted in the exchange copy given by that government. This omission being noticed later, a special protocol was signed in 1871, recognizing the interpretation. Crandall, op. cit., p. 88. 28 In negotiating the treaty of 1850 with Switzerland, the American negotiator agreed that the unqualified most-favored-nation clause of article 10 should be interpreted absolutely. In 1898, Switzerland claimed under this clause, the benefits offered to France under a reciprocity agreement of May 30, 1898. At first the United States objected that to admit the claim would be contrary to her accepted interpretation of identical most-favored- nation clauses, but " It was found upon an examination of the original cor- respondence that the President of the United States was advised of the same understanding and that the dispatch in which it was expressed was communicated to the Senate when the treaty was submitted for its approval," consequently customs officials were directed to admit Swiss importations at the reduced rate. Moore, Digest, 5 : 284. 29 Fourteen Diamond Rings v. United States (1901), 183 U. S. 176. " 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." N. Y. Indians v. U. S. (1898), 170 U. S. i. See also Moore, Digest, S: 210; Crandall, op. cit., p. 88. AND UTTERAXCES OF NATIONAL ORGANS. 147 plenipotentiaries on exchange of ratifications to the Mexican peace treaty of 1848 and the Clayton-Bulwer treaty with Great Britain of 1850 were considered of doubtful validity,^*' and on other occasions the President has submitted such explanatory documents to the Senate before proclaiming the treaty."^ Thus, if in fact the note has not received consent of the full treaty-making power, the United States is not bound unless the foreign nation can show that it had reason to suppose the note had been constitutionally accepted. There would certainly be such a presumption where the exchange of notes took place before the Senate had acted. Thus intrepretive agreements relating to the treaties with Mexico (1848) and Great Britain (1850) not having been exchanged until after ratification, though considered valid by foreign nations,^^ were questioned by the United States. ^^ On the other hand, the interpretive notes exchanged before the Senate had acted on the Swiss treaty of 1855 were considered valid. In s^ Moore, Digest, 5: 205-206; Crandall, op. cit., pp. 85, 381. Bigelow, Breaches of Anglo-American Treaties, pp. 1 16-149, discusses at length the effectiveness of these and other documents alleged to be explanatory of the Clayton-Bulwer treaty. Secretary Root agreed by exchange of notes with Mr. Bryce, British Ambassador, as to the meaning of Art. II of the arbi- tration convention of 1908. These documents were submitted to the Senate for its information but apparently not for its approval. Crandall, op. cit., p. 89. 31 Jefferson thought it necessary to submit an interpretation offered by Napoleon of the treaty of 1801 to the Senate before exchange of ratifica- tions. Charles Francis Adams said that the British interpretation of the Declaration of Paris, to which the United States desired to accede, would have to be submitted to the Senate. Secretary Fish declared the exchange of ratifications of a treaty with Turkey in 1874 was invalid because accom- panied by an explanation of the American plenipotentiary which rendered a Senate amendment nugatory. Secretary Bayard refused to give an ex- planation of a Senate amendment to the treaty with Hawaii of 1884 and to authorize a protocol explaining the submarine cable convention of 1886 without Senate approval. Crandall, op. cit., pp. 86-89; Moore, Digest, 5: 207. Although protocols prolonging the time for exchange of ratifications have not always been submitted to the Senate, this has usually been done. Crandall, op. cit., pp. 89-92. 32 Mexico and Great Britain respectively asserted the validity of these agreements. Moore, 5 : 205 ; Lord Clarendon to Mr. Buchanan, May 2, 1854, Br. and For. St. Pap., 46: 267, Moore, 3: 138. The Mexican agreement is printed after the Treaty in Malloy, Treaties, etc., p. 11 19. 33 Supra, note 30. PROC. AMER. PHIL. SQC, VOL., LX., K, MARCH 6, I922. 148 WRIGHT— CONCLUSIVENESS OF THE ACTS this case the notes m question had been submitted to the Senate but had not been formally acted on by that body.^* 28. Reservations Tacitly Consented to. Tacit consent to reservatons is also possible, but it seems doubt- ful whether the United States would be bound by a reservation submitted by a foreign power unless the Senate has had an oppor- tunity to object. The signature and exchange of ratifications of treaties are formal ceremonies offering suitable opportunities for the proposal of reservations. It would appear that if such proposals are stated as conditions of consent by the proposing power, on either of these occasions, lack of protest within a reasonable time by others could be construed as tacit consent. At the Hague Con- ferences, the numerous reservations offered upon signature of the Conventions and maintained by the power upon ratification were accorded tacit consent in this manner.^^ Other signatories are, however, at liberty to object to reservations. Thus the powers objected to a reservation to the treaty of Versailles proposed by China upon signature and, as a result, China refused to sign the treaty.^*' Sometimes the treaty itself has stated that it is not sub- ject to reservation. Thus article 65 of the Declaration of London provided "The provisions of the present Declaration form an indivisible whole." ^^ ^* Supra, note 28. 35 The Marie Glaeser, L. R. (1914), P. 218; The Appam (1916), 243 U. S. 124, infra, note 38. In most cases reservations were offered at signature and affirmed at ratification though sometimes they were offered for the first time at ratification. Thus the Senate resokition advising ratification of the 1907 Hague Convention for the Pacific Settlement of International Dis- putes affirmed the declaration made by the American plenipotentiaries on signature and added a new reservation. Malloy, Treaties, etc., p. 2247. The reservations with statement of the method of presentment are given in full in the Carnegie Endowment for International Peace edition of the Hague Conventions and Declarations of 1899 and 1907. Presumably a reser- vation made at signature but not maintained at ratification is not effective. ^^ Am. Year Book, 1919, p. 93. s'' Upon this, the drafting committee, of which M. Renault was chair- man, commented as follows : " This Article is of great importance, and is in conformity with that which was adopted in the Declaration at Paris. The rules contained in the present Declaration relate to matters of great im- portance and great diversity. They have not all been accepted with the AND UTTERANCES OF NATIONAL ORGANS. 149 The United States Senate is presumed to be aware of reserva- tions made by foreign powers on signature, before it consents to ratification, consequently the United States is bound by such reserva- tions. Thus, said the Supreme Court of a reservation attached by the King of Spain to his ratification of the Florida cession treaty of i8i9:3« " It is too plain for argument that where one of the parties to a treaty at the time of its ratification annexes a written declaration explaining am- biguous language in the instrument or adding a new and distinct stipulation and the treaty is afterwards ratified by the other party with the declaration attached to it, and the ratifications duly exchanged — the declaration thus annexed is a part of the treaty and as binding as if it were inserted in the body of the instrument. The intention of the parties is to be gathered from the whole instrument as it stood when the ratifications were ex- changed." In case foreign reservations are proposed upon exchange of ratifications, the Senate has no opportunity to object unless the reservations are especially submitted to it by the President. Pres- ident Jefiferson thus submitted Napoleon's reservation to the treaty of 1801 after exchange of ratifications and the Senate consented.^® Doubtless, prompt notification of Senatorial objection, had it been given, would have relieved the United States of responsibility same degree of eagerness by all the Delegations ; some concessions have been made on one point in consideration of concessions obtained on another. The whole, all things considered, has been recognized as satisfactory. A legitimate expectation would be defeated if one Power might make reserva- tions on a rule to which another Power attached particular importance." Naval War College, Int. Law Topics, 1909, p. 155. Protocol No. 24 of the Paris Congress of 1856 provided with reference to the Declaration of Paris, " On the proposition of Count Walewski, and recognizing that it is for the general interest to maintain the indivisibility of the four principles men- tioned in the declaration signed this day, the plenipotentiaries agree that the powers which shall have signed it, or which shall have acceded to it, can not hereafter enter into any arrangement in regard to the application of the right of neutrals in time of war, which does not at the same time rest on the four principles which are the object of the said declaration." This was recognized as a binding obligation on the powers and as a result the United States being unwilling to accept one provision of the Declaration was ex- cluded from the treaty, a situation which proved most disadvantageous upon the outbreak of the Civil War five years later. Ibid., 1905, p. no. 38 Doe V. Braden, 16 How. 635, 656 (1853). See also Crandall, p. 88, and supra, note 28. 3^ Crandall, op. cit., p. 86, and supra, note 27. 150 WRIGHT— CONCLUSIVENESS OF THE ACTS under the treaty, in spite of the fact that ratifications had been exchanged. In multi-partite treaties a formal exchange of ratifications is often dispensed with and provision is made for deposit of ratifica- tions at a central bureau. This was provided in the African Slave Trade, Algeciras, Hague, Versailles and other Conventions.*" With such provisions, qualified ratifications may be deposited in the method provided, but if upon receipt of the proces-verbal of the deposit of such qualified ratification, any signatory objects to the reservations, the treaty will not be in effect as between those signatories. As to signatories offering no objection the reservations will be regarded as tacitly accepted, and the treaty will be in efifect as from the date of deposit of ratifications. Undoubtedly, when foreign states make reservations the Senate ought to be given an opportunity to object to such reservations*^ and that was done in ■*o Article 440 of the Treaty of Versailles reads : " The present Treaty of which the French and English texts are both authentic, shall be ratified. " The deposit of ratifications shall be made at Paris as soon as possible. " Powers of which the seat of the Government is outside Europe, will be entitled merely to inform the Government of the French Republic through their diplomatic representative at Paris that their ratification has been given ; in that case they must transmit the instrument of ratification as soon as possible. " A first proces-verbal of the deposit of ratifications will be drawn up as soon as the Treaty has been ratified by Gennany on the one hand, and by three of Principal Allied and Associated Powers on the other hand. " From the date of this first proces-verbal the Treaty will come into force between the High Contracting Parties who have ratified it. For the determination of all periods of time provided for in the present Treaty this date will be the date of the coming into force of the Treatj'. " In all other respects the Treaty will enter into force for each Power at the date of the deposit of its ratification. " The French Government will transmit to all the signatory Powers a certified copy of the proces-verbeaux of the deposit of ratifications." *i " It is believed that it is immaterial whether the reservation be made before, at, or after signing, as until a Power has. ratified and deposited rati- fications of the Convention it is not bound. But good faith requires that objections to any article be stated either before or at the time of signing, so that nations may know the nature and extent of the obligations they are assuming with other nations. International conventions are often com- promises, and the price of a compromise to a nation may be the very article which another nation excludes from the convention or interprets in a AND UTTERANCES OF NATIONAL ORGANS. 151 the French reservation to the African Slave Trade Convention of 1890.^- It does not appear that all reservations attached to deposit of ratifications of the Hague Convention were submitted to the Senate and question might arise as to their validity, though undoubt- edly, after a considerable lapse of time, the foreign nation would be entitled to assume tacit acceptance of its reservation.*^ special sense in the act of ratification." Scott, op. cit., p. xxviii. See also supra, note 37. 42 The following draft of a Protocol of Jan. 2, 1892, is printed in Malloy, Treaties, etc., p. 1990, following the African Slave Trade General act of 1890: " The undersigned . . . met at the Ministrj-t of Foreign Affairs at Brussels, in pursuance of Article XCIX of the General Act of July 2, 1890, and in execution of the Protocol of July 2, 1891, with a view to preparing a certificate of the deposit of the ratifications of such of the signatory powers as were unable to make such deposit at the meeting of July 2^ 1 891. " His Excellency the Minister of France declared that the President of the Republic, in his ratification of the Brussels General Act had provisionally reserved, until a subsequent understanding should be reached, Articles XXI, XXII, XXIII, and XLII to LXI. The representatives . . . , acknowledged to the Minister of France the deposit of the ratifications of the President of the French Republic, as well as of the exception bearing upon Articles XXI, XXII, XXIII, and XLII to LXI. " It is understood that the powers which have ratified the General Act in it's entirety, acknowledge that they are reciprocally bound as regards all its clauses. " It is likewise understood that these powers shall not be bound toward those which shall have ratified it partially, save w'ithin the limits of the engagements assumed by the latter powers. " Finally, it is understood that, as regards the powers that have par- tially ratified, the matters forming the subject of Articles XLII to LXI, shall continue, until a subsequent agreement is adopted to be governed by the stipulations and arrangements now in force. " In testimony whereof . . . ." The Lf^nited States Senate resolution of ratification expressly accepted the French reservation and made another which was consented to by the powers prior to deposit of ratification. Supra, note 27. •*3 See U. S. reservation to Art. 53 of Hague Convention, 1907, Malloy, Treaties, p. 2247, and discussion thereon, Scott, op. cit., p. xxvii. A Senate reservation to the Algeciras Convention of 1906 was in the same spirit but different terms from a reservation attached to American signature of the treaty. Apparently the qualified ratification was accepted when de- posited as required by Article 121 of the treaty. Malloy, Treaties, etc.. p. 2183. The Proces-Verbal of Deposit of Ratifications to the International Sanitary Convention of .1903 notes reservations attached to the ratifications 152 WRIGHT— CONCLUSIVENESS OF THE ACTS 29. Exchange of Ratifications under Authority of the President. Even after the treaty has been ratified** by both parties and interpretations, reservations or amendments properly consented to, the foreign nation can not hold the United States bound until ratifications have been exchanged.*^ This act, performed under authority of the President,*'' gives the treaty complete international validity, which, so far as international obligations are concerned, is then held to date back to the time of signature unless expressly stated otherwise in the treaty itself.*^ It thus appears that foreign nations recognize their duty to know the organization of the full treaty power under the Constitu- tion. They recognize that the United States is not responsible for any instrument beyond the instructions of the negotiators and is not bound by a treaty, signed or ratified merely under authority of the President without advice and consent of the Senate. They have likewise recognized that reservations or amendments, not consented to by the whole treaty power, do not bind the United ■States unless there is reason to suppose that such action had taken place. 30. Treaty Provisions Ultra Vires from Lack of Original Authority. Difficulties, however, arise in cases where the constitutional law defining the competence of the organ for making agreements is obscure. In such cases, is the foreign nation justified in accepting the President's interpretation of the Constitution? We must recall that the President is for them the only official source of information of the United States, Great Britain, and Persia, which apparently were tacitly accepted. Malloy, p. 2129. See also supra, note 35. ** Ratification in the United States is under authority of the President alone and he may refuse to ratify treaties after the Senate has consented. Shepherd v. Insurance Co., 40 Fed. 341 ; Taft, Our Chief Magistrate, and His Powers, p. 106; Crandall, op. cit., pp. 81, 94, 97; Willoughby, op. cit., i: 466; Black, Constitutional Law, p. 124; Foster, Practice of Diplomacy, p. 279; Spooner, Sen. from Wis., Cong. Rec, 59th Cong., ist Sess., p. 1419, quoted Corwin, op. cit., p. 175. See also colloquy Senators Reed, Mo., and Brandegee, Conn., March 2. 1920, Cong. Rec, 59: 4032. *s Scott, op. cit., p. xxvii; Foster, op. cit., p. 280; Crandall, op. cit., p. 6. ^'^ Crandall, op. cit., p. 93. ^'^ Haver v. Yaker, 9 Wall. 32; Crandall, op. cit., p. 343; Willoughby, op. cit., i: 517; Hall (Higgins ed.), op. cit., 343, supra, sec. 15, note 14; infra, sees. 179, 180. AND UTTERANCES OF NATIONAL ORGANS. 153 about the Constitution of the United States-^^ Following practice, the answer seems to depend upon whether the alleged want of competence arises (i) from a lack of original authority or (2) from operation of obscure constitutional limitations. Foreign nations are supposed to know what organs the Constitu- tion designates for concluding various types of international agree- ments. Thus they are supposed to know that in England power to make treaties is vested in the Crown in Council,*" that in France : ^° " The President of the Republic shall negotiate and ratify treaties. Treaties of peace and of commerce, treaties which involve the finances or the state, those relating to the person and property of French citizens in foreign countries, shall be ratified only after having been voted by the two chambers." That in the United States. "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." ^^ Until these organs have authorized ratification, foreign nations can not hold the nation bound even though the authority conducting negotiations neglected to inform them or informed them erroneously as to the organs with constitutional competence. However, all agreements are not treaties. Certain military agreements, such as armistices, are usually within the inherent power of the Commander-in-Chief Others such as protocols and agreements of temporary effect are within the inherent power of the representative organ. ^^ The Pres- ident has often concluded such agreements, notably the preliminaries of peace to end the Spanish and World Wars. If he permits the other nation to understand that such action is within his constitutional authority, is the United States bound, even though the Senate sub- sequently take a contrary view? Opinions have differed in the United States^^ but foreign nations have actually held the United 48 Supra, sec. 13. 49 Anson, op. cit., vol. 2, pt. i, p. 54; pt. 2, p. 108. 50 Constitutional Law of July 16, 1875, art. 8. 51 Const. Art. II, sec. 2. 52 Crandall, op. cit., p. 11 r; Willoughby, op. cit., i: 200-202, infra, sees. 161-172. 53 President Wilson took the position that the agreement of Nov. 5, 1918, and earlier exchanges of notes, upon the basis of which the armistice of November 11, 1918, was concluded with Germany, rendered ratification of a treaty in accordance with those terms obligatory upon the United States. 154; WRIGHT— CONCLUSIVENESS OF THE ACTS States bound.^* We believe that in such cases the United States is bound only if the President actually is within the scope of his constitutional powers. However, the extent of these powers is so obscure that the foreign nation is justified in accepting the President's own view of his powers and holding the United States accordingly unless that view is very obviously erroneous, i.e., unless the agreement in question is obviously of sufficient perma- nence and importance to constitute a " treaty." 31. Treaty Provisions Ultra Vires from Operation of Constitutional Limitations. When an alleged want of constitutional competence in the agree- ment-making power arises from the operation of an obscure con- stitutional limitation, the foreign nation would seem entitled to accept the ostensible competence of the agreement-making author- ity absolutely and to hold the nation accordingly. Thus in England, if the Crown in Council ratifies a treaty on its own responsibility, the other party is entitled to insist upon its validity, even though the treaty is of a character which, according to the law of the Constitution, should have been submitted td parliament before ratification, if indeed there are any such.^^ So the United States is bound by all agreements ratified by the treaty-making power, even though it may subsequently appear that the treaty-making " I am ready," he said in a speech at Spokane, Washington, Sept. 12, 1919, " to fight from now until all the fight has been taken out of me by death to redeem the faith and promises of the United States." (Sen. Doc. No. 120, 66th Cong., ist Sess., p. 173.) President Wilson and the German dele- gation agreed as to the obligation of the preliminary agreement but differed as to the concurrence of the treaty therewith. See also Wright, Minn. Lazv Rev., 4: 35. The Senate appears to have paid little attention to arguments derived from the obligation of the preliminary agreements, in considering either the Spanish treaty of 1898 or the German treaty of 1919. s*Thus Spain insisted that the preliminaries of peace of Aug. 12, 1898, were a binding obligation and protested against proposed terms of the defini- tive treaty on the ground of conflict (Benton, Int. Law and Diplomacy of Spanish-American War, Baltimore, 1908, p. 244) and Germany protested against proposed terms of the treaty of Versailles on the ground of conflict with the preliminary exchange of notes of Nov. 5, 1918. (See Text of German note of May 29, 1919, Int. Conciliation, 1919, p. 1203, and Official Summary, 66th Cong., ist Sess., Senate Doc. No. 149, p. 83.) 's Supra, note 49. AND UTTERANCES OF NATIONAL ORGANS. 155 power acted in disregard of limitations imposed by the guarantees of the Constitution in favor of individual, state or other rights.^" Thus in negotiation of the Webster-Ashburton treaty involving a fixing of the IMaine boundary and the cession to Great Britain of land claimed by that state, the British government was aware of the doubt which existed as to the competence of the United States treaty-making power to cede territory belonging to the state without that state's consent. ' They, therefore, refused to negotiate until assured by authority of the President that the constitutional diffi- culty had been eliminated, an assurance which was made possible by ^Maine's consent to the cession.^" So also, in 1854 France contended that the United States continued bound by the provision of the treaty of 1852 granting consuls immunity from compulsory process to serve as witnesses, in spite of the American contention that the provision was in violation of the guarantee of compulsory process 56 " The fundamental laws of a state may withhold from the executive department the power of transferring what belongs to the state; but if there be no express provision of that kind, the inference 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. (Kent, Commentaries, i : 166.) 5" " The negotiations for a convention to settle the boundary question can hardly be said to have made any positive progress, since last year. . . . The interest of both parties, undoubtedly, requires a compromise, and I have no doubt that the position which Maine has assumed is the only obstacle to bringing such a compromise about. The English government can not treat with us about a compromise, unless we say we have authority to con- summate what we agree to; and although I entertain not the slightest doubt of the just authority of this government to settle this question by compro- mise, as well as in any other way, yet in the present position of affairs, I suppose it will not be prudent to stir, in the direction of compromise with- out the consent of Maine." (Mr. Webster, Sec. of State, to Mr. Kent, Gov. of Maine, Dec. 21, 1841, Moore, Digest, 5: 174, infra, sec. 50.) The terms of the agreement with Maine and Massachusetts were included in article 5 of the treaty with Great Britain. The same principle doubtless applies to constitutional limitation upon the treaty power arising from rights guaran- teed to individuals and the rights and privileges of departments of the national government as well as rights guaranteed the states. The tend- ency, however, has been to minimize the application of these limitations and where necessity presses as in treaties of peace to end a disastrous war, doubtless the ostensible authority of the executive even of a de facto government would fully bind the nation. (Kent, op. cit., i: 166-167, Wright, Am. Jl. Int. Lazu, 13: 249-250, infra, sec. 32.) 156 WRIGHT— CONCLUSIVENESS OF THE ACTS for obtaining witnesses to persons accused of crime in the Fifth Amendment of the Constitution, and thus beyond the competence of the treaty-making power. The United States acquiesced after a considerable controversy and made amends for the arrest of the French consul which had actually occurred, although instructions were issued to avoid the inclusion of such provisions in future treaties.^^ It appears that foreign nations are expected to know what organs are authorized by the Constitution to conclude international agreements of various kinds, but with respect to constitutional limitations upon the power of these organs, they are entitled to infer from the statements or silence of the President at the time, that the Constitution has been followed. " It' is a principle of international law," says Willoughby, " that one Nation in its dealings with another Nation is not required to know, and, therefore, is not held to be bound by, the peculiar constitutional structure of that other Nation. It is required, indeed, to know what is the govern- mental organ through which treaties are to be ratified." ^^ 32. Treaty Made under Necessity. One general exception to this rule may be noticed. In case of necessity any treaty whatever, even if made under mere de facto au- thority, is valid under international law. While international law rec- ognizes coercion of the negotiators of a treaty as grounds for void- ing a treaty, it does not so recognize coercion of the state.®° All com- mentators agree that in case an unfortunate war necessitated, the treaty power might cede state territory without state consent or impair the Republican form of government in a state by accepting a monarchical protectorate.^^ This would be valid even though the government under the Constitution were overthrown and a de facto government with neither President nor Senate set up in its stead were the only authority concerned in making the treaty. It has been suggested that the phraseology of Article VI, whereby treaties are supreme law if made " under the authority of the United States " and need not, as statutes, " be made in pursuance " of the 58 Moore, Digest, 5 : 80, 167. 59 Willoughby, op. cit., i : 515. ^'■'^ Crandall, op. cit., p. 4. ci Crandall, op. cit., pp. 227-229; Wright, Am. Jl. Int. Laxv, 13: 250. AND UTTERANCES OF NATIONAL ORGANS. 157 Constitution, gives authority for this plenary power of treaty making.^^ If that were accepted, however, it would free the treaty power of constitutional restrictions in times of tranquility as well as of necessity, a view which is not accepted. The better view seems to admit that such a treaty would be unconstitutional in its origin but would be valid under international law upon the principle of self-preservation. C. With Reference to the Meeting of International Responsibilities. ^T,. United States Bound by International Lazv and Treaty. Are foreign nations entitled to consider the President's interpre- tation of the international responsibilities of the United States as authoritative? We have noticed that the United States, as a sov- ereign nation, is under international responsibilities, only in so far as such responsibilities have been accepted by organs acting within their apparent constitutional powers.®^ General international law is presumed to have been tacitly accepted by the United States on becoming a member of the family of nations.^* Treaties are formal ^- See Congressman D. J. Lewis, Feb. 17, 1917, Cong. Rec, 64th Cong., 2d Sess., p. 4205, quoted, Wright, Am. Jl. Int. Law, 13: 249, and Holmes, J. in Mo. v. Holland, U. S. Sup. Ct, April 19, 1920 : " Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention." See also Kent, Commentaries, i : 166, 176. The different phraseology was actually introduced to assure the validity of treaties con- cluded by the United States before 1789. Rawle, On the Constitution, p. 66; Farrand, op. cit., 2: 417. 63 Supra, sec. 24 6* Maine, International Law. N. Y., 1888, p. 37, infra, sec. 258. Dupon- ceau, Jurisdiction of the Courts of the LT. S., Philadelphia, 1824, p. 3, has expressed the same view : " The law of nations, being the common law of the civilized world, may be said indeed to be a part of the law of every civilized nation ; but it stands on other and higher grounds than municipal customs, statutes, edicts or ordinances. It is binding on every people and on every government. It is to be carried into effect at all times under the penalty of being thrown out of the pale of civilization or involving the country in war. Every branch of the national administration, each within its district and its particular jurisdiction, is bound to administer it. It de- fines offenses and affixes punishments and acts everywhere Propria vigore, whenever it is not altered or modified by particular national statutes or usages not inconsistent with its great and fundamental principles. Whether 158 WRIGHT— CONCLUSIVENESS OF THE ACTS modifications of the general law of nations with respect to the parties, and are only valid when expressly accepted through ratifi- cation by the proper constitutional process. But when consent has been given whether tacitly or expressly, foreign nations can hold the United States bound for the future. 34. Decisions by the President. We have noticed that international law requires that every independent government maintain a representative organ able to dis- cuss with and give satisfaction to foreign nations for demands based on international law and treaty.^^ We have seen that foreign nations have recognized the President acting through the Depart- ment of State as the representative organ of the United States.®** It follows that, with respect to the meeting of international respon- sibilities, foreign nations are entitled to accept the President's opinion as the authoritative voice of the United States. Thus if the President admits that international law or treaty requires the pay- there is or not a national common law in other respects, this iink'crsal common laiv can never cease to be the rule of executive and judicial proceed- ings until mankind shall return to the savage state." The Supreme Court said in Ware v. Hylton, through Wilson, J. : " When the United States de- clared their independence, they were bound to receive the law of nations in its modern state of purity and refinement." (3 Dall. 199, 281, 1796.) So also Secretary of State Webster: "Every nation, on being received, at her own request, into the circle of civilized governments, must understand that she not only attains rights of sovereignty and the dignity of national char- acter, but that she binds herself also to the strict and faithful observance of all those principles, laws and usages which have obtained currency among civilized states and which have for their object the mitigation of the miseries of war." (Letter to Mr. Thompson, INIinister to Mexico, April 15, 1842, Moore, Digest, i : 5.) Willoughby calls attention to the evidence that the United States actually has accepted general international law : " The federal constitution provides that Congress shall have the power to define and punish offenses against the law of nations, and to make rules concern- ing captures on land and water. Furthermore, it is declared that treaties made under the authority of the United States shall be the supreme law of the land. The effect of these clauses which recognize the existence of a body of international laws and the granting to Congress of the power to punish offenses against them, the courts have repeatedly held is to adopt these laws into our municipal law en bloc except where Congress or the treaty- making power has expressly changed them." (Op. cit., p. 1018.) ^^ Supra, sec. 11. 6^ Supra, sec. 12. AND UTTERANCES OF NATIONAL ORGANS. 159 ment of a sum of money, the cession of territory, the dispatch of military forces, the deHvery of a fugitive, or the release of an alien held in custody, the foreign nation can hold the United States bound to perform such an act, even though Congress, or the states or whatever other organ may be endowed with the necessary legal power to act has not been consulted. In practice foreign nations have acted on this theory. Where the President has given an opinion against the contention of a foreign nation, that nation may of course continue discussion until a decision has been reached satisfactory to it or authorized by an arbitration court or other body by whose decision it has agreed to be bound. Where, however, the President has acknowledged the justice of a foreign claim, the foreign nation has held the United States bound. Thus in the McLeod case, the Italian lynching cases and the Panama Canal tolls controversy the -ultimate acknowledg- ment by the President of an obligation to return McLeod,*'^ to pay damages"^ and to charge equal tolls upon American vessels using the Canape made the cases res adjudicata. In many cases it would doubtless be expedient, in some it is required by constitutional law,"" and in others it is required by con- stitutional understanding,'^ that the President assure himself of the needed cooperation of other departments before interpreting an international responsibility or acknowledging a specific obligation flowing therefrom, but the foreign nation is not obliged to concern itself with such questions. It is entitled to present all international claims to the President and to hold his voice as the voice of the nation with respect to their settlement. 35. Decisions by Subordinates to the President. This is true of agents acting under authority of the President unless their action is promptly repudiated by the President. Thus 67 Moore, Digest, 6: 261. 68 Moore, Digest, 6: 839, 849. ''''"In my own judgment, very fully considered and maturely formed, that exemption ... is in plain contravention of the treaty with Great Britain concerning the canal, concluded on November 18, 1901." (President Wilson, Message to Congress, March 5, 1914. Cong. Rec, 51: 4313.) "•^ Infra, sees. 143-145. "1 Infra, sec. 251. 160 AND UTTERANCES OF NATIONAL ORGANS. if a representative of the President should sit in the Council of the League of Nations and admit that a guarantee undertaken by- treaty by the United States required the use of armed forces in a specific manner under existing circumstances, the United States would be bound to carry out the treaty in that precise manner/^ The proposed Hitchcock reservation to Article X of the Covenant, while not impairing the obligation of the United States to fulfill the guarantee, transferred the representative powers of the Pres- ident to Congress in this respect, by indicating that the representative on the Council was not competent to acknowledge an obligation owed by the United States and expressly stating that Congress remained free to interpret the obligation according to its own "conscience and judgment." ''^ The same result could of course be obtained by transferring control of the American representative in the Council to the Congress, but this, as proved by the experience of congressional control of diplomats during the revolutionary- period, would hardly be expedient.'-* ''^ This interpretation of the Covenant is contained in the Swiss official commentary. " The Council may formulate obligatory advice unanimously only and solely for its own members and for other states invited in the specific instance to be represented on the Council, Art. 4, par. 5." This im- plies that for states whose representatives have consented, the advice is obligatory. See the League of Nations, pviblished by the World Peace Foundation, III, No. 3, p. 125. "•^ Article X reads : " The members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression the Council shall advise upon the means by which this obligation shall be fulfilled." The proposed Hitchcock reservation reads : " That the advice, mentioned in Article X of the Covenant of the League, which the Council may give to the member nations as to the employment of their naval and military forces, is merely advice, which each member nation is free to accept or reject, according to the conscience and judgment of its then existing government, and in the United States this advice can be ac- cepted only by action of the Congress at the time, it being Congress alone, under the Constitution of the United States, having the power to declare war." The proposed Lodge reservation to Article X did not affect merely the authority to interpret Article X, but under it the United States refused to accept the guarantee of Article X altogether. For text of these reserva- tions and notes upon the votes received in the Senate, see The League of Nations, III, No. 4 (August, 1920). 7* See Hamilton, The Federalist, No. 22, Ford ed., p. 141 ; and Fish, American Diplomacy, N. Y., 1916, pp. 60, yy; "The experience of the AND UTTERANCES OF NATIONAL ORGANS. 161 36. Decisions by International Organs Authorized by the President. The same binding obligation flows from the decisions of inter- national courts of justice or arbitration acting on cases submitted by the President. As the President can himself interpret the obliga- tions of the United States, or do so through agents in conference with the representatives of other nations, so he can do so through submission to an international court. It is true that under the contitution, such submissions must, if involving national claims or claims against the United States, be by general or special treaty to which the Senate has consented,'^^ but since the function of a court of arbitration is to decide on obligations and not to make agreements, the foreign nation is not obliged to take cognizance of such constitutional provisions. It can hold the arbitrated case res adjudicata even though the President exceeded his powers in submitting it.'^^ 37. Meeting Responsibilities Distinguished from Making Agree- ments. It will be observed that while foreign nations are entitled to accept the President's statements absolutely with respect to meeting international responsibilities, it can only accept them presumptively with respect to making international agreements. It is, therefore, important to distinguish between these two acts. Usually the line is clear enough. In the case of treaties, steps up to and including the exchange of ratifications are making the treaty steps afterward are meeting the responsibility. Thus tlie Senate has a part in the making of treaties as it must give its advice and consent before ratification. The House of Representatives, however, is concerned Continental Congress was most useful to the country. ... It had made it clear that a most serious defect was in the absence of an executive, clothed with sufficient power and dignity to properly conduct intercourse with foreign sovereigns. . . . An attempt had been made to supply these wants by the creation of various committees or boards. . . . The experience of the con- federation with its various boards was most unsatisfactory and sometimes pathetic."' Foster, Century of Am. Diplomacy, N. Y., 1901, pp. 103-104. ^5 Infra, sec. 148. "^^ " Recourse to arbitration implies an engagement to submit in good faith to the award." I Hague Conventions, 1907, act. 37. See also infra, sec. 62. 162 WRIGHT— CONCLUSIVENESS OF THE ACTS only with meeting responsibilities under them as pointed out by President Washington in the controversy over 'the Jay treaty.'^" One hundred and twenty-five years later Former Secretary of State Root explained the same point/^ " The making of a treaty ... is a solemn assurance to all the nations that (the subject matter) is within the treaty making power and that the promise to make war binds Congress as fully as it binds all other members of our government to maintain the plighted faith of the United States. In all governments the power to declare war rests somewhere, and an agreement to make war is an agreement that that power shall be so exercised by the officers in whom it rests. A refusal of Congress to pass the necessary resolution would simply be a breach of the treaty." Consequently though failure of the Senate to consent can be offered to foreign nations as a valid excuse for non-ratification/^ failure of the House of Representatives to pass an appropriation, declare war or take other measures necessary to give effect to a ratified treaty can not be oft'ered as an excuse for avoiding the responsibility.^" " If a treaty," says Dana, " requires the payment of money, or any other special act, which cannot be done without legislation, the treaty is still binding on the nation ; and it is the duty of the nation to pass the necessary laws. If that duty is not performed, the result is a breach of the treaty by the nation, just as much as if the breach had been an affirmative act by any other department of the government. Each nation is responsible for the right working of the internal system, by which it distributes its sov- ereign functions ; and, as foreign nations dealing with it cannot be per- mitted to interfere with or control these, so they are not to be affected or concluded by them to their own injury." 38. Interpretation of Treaties. But what of the interpretation of a treaty? Is interpretation a step in the making, or in the execution of the treaty? Interpre- "■^ Message to House of Rep., March 30, 1796. Richardson, INIessages, 1 : 195, Moore, Digest, 5 : 225. 78 Telegram to Governor Cox, October 21, 1920. See also Hamilton, Pa- cificus Paper, quoted Corwin, The President's Control of Foreign Relations, p. 14; Taft, op. cit., p. 115. ^■9 Supra, sees. 24-26. so Dana, note to Wheaton, Int. Law, sec. 543, p. 715. See also Wil- loughby, op. cit., p. 515; Moore, Digest, 5: 230. "A treaty though complete in itself, and the unquestioned law of the land, may be inexecutable without the aid of an act of Congress. But it is the constitutional duty of Congress to pass the requisite laws. But the need of further legislation, however, does not affect the question of the legal force of the treaty per se." Cushing, Att. Gen., 6 Op. 291, 1854; Moore, Digest, 5: 226, 370. AND UTTERANCES OF NATIONAL ORGANS. 163 tation is essentially a judicial function but there has been a long controversy as to whether judges make law or merely apply it. The familiar saying of Bishop Hoadley, " Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law giver to all intents and purposes," points to the former view.^^ The true distinction seems to depend upon the generality or concrctcncss of the interpretation. Where judicial interpreta- tions of the law extend to merely the case before them, judges do not make law. Where their opinions furnish precedents for the future they do. Thus if an interpretation of law merely renders the controversy res adjudicata, it is not law-making. If, on the other hand, the principle stare decisis is applied the interpretation assumes a legislative character.^^ The same distinction exists in the decision of international controversies. A decision upon the applicability of a treaty, or a principle of international law to a particular case, and the deter- mination of the obligation resulting therefrom, has to do with the meeting of the responsibility and not with the making of the treaty or the principle of law. Consequently foreign nations are entitled to hold a controversy upon which decision has been made under authority of the President, res adjudicata. But can they regard such a decision and the interpretation of international law or treaty upon which it is based as going farther than this and as binding the United States when similar controversies arise in the future.®^ " The President," says ex-President Taft, "' carries on the correspondence through the State Department with all foreign countries. He is bound in such correspondence to discuss the proper construction of treaties. He must state our attitude upon questions constantly arising. While strictly 81 Sermon preached before the King, 1717, Works, 15th ed., p. 12, Gray, Nature and Sources of the Law, pp. 100, 120. " Statutory construction is practically one of the greatest of executive powers. . . . One might say, . . . Let any one make the laws of the country if I can construe them." (Taft. Our Chief Magistrate, p. 78.) " I recognize that judges do and must legis- late. But they can do so only interstitially : they are confined from molar to molecular motions." (Holmes, J., dissent in Southern Pacific z\ Jensen, 244, U. S. 205, 1917.) 82 See Gray, op. cif.. chap. IX, and especially sec. 498; Cooley, Constitu- tional Limitations, 6th ed., pp. 61-68. 83 Taft, op. cit.. p. 113, see also infra, sec. 172. PROG. AMER. PHIL. SOC, VOL. LX,L, Alarch 7, I922. 164 WRIGHT— CONCLUSIVENESS OF THE ACTS he may not bind our government as a treaty would bind it, to a definition of its rights, still in future discussions foreign Secretaries of other countries are wont to look for support of their contentions to the declarations and admissions of our Secretaries of State in other controversies as in a sense binding upon us. There is thus much practical framing of our foreign policies in the executive conduct of our foreign relations. "Whenever our American citizens have claims to present against a foreign nation, they do it through the President by the State Department and when foreign citizens have claims to present against us, they present them through their diplomatic representatives to our State Department, and the formulation and the discussion of the merits of those claims create an important body of precedents in our foreign policy." As President Taft points out, it is inevitable that the principle of stare decisis will be of weight in the settlement of future contro- versies and consequently that executive practice will in fact es- tablish an interpretation of responsibilities from which it will be difficult for future Presidents to escape. In theory, however, it is believed that foreign nations can not hold the United States absolutely bound by decisions or interpretations under authority of the President alone, except witli reference to the specific contro- versy under discussion.^* Thus explanatory or interpretive notes, designed to control the general application of a treaty in the future, are part of its making, whether they precede, accompany, or follow exchange of ratifications and do not internationally bind the United States unless foreign nations had reason to suppose that the full treaty power had consented to them.^^ 84 In the Pious Fund Arbitration Case (U. S. v. Mexico), 1903, the court held that while the principle stare decisis was not wholly applicable to arbitration, the principle of res adjtidicata was : " Considering that all the parts of the judgment or the decree con- cerning the points debated in the litigation enlighten and mutually supple- ment each other, and that they all serve to render precise the meaning and the bearing of the dispositif (decisory part of the judgment) and to de- termine the points upon which there is res judicata and which thereafter can not be put in question ; " Considering that this rule applies not only to the judgments of tribunals created by the State, but equally to arbitral sentences rendered within the limits of the jurisdiction fixed by the compromise ; " Considering that this same principle should for a still stronger reason be applied to international arbitration, etc." (Wilson, Hague Arbitration Cases, Boston, 1915, p. 9.) 85 The United States refused to consider itself bound by explanatory notes exchanged prior to exchange of ratification of the Mexican peace treaty of 1848 and the Clayton-Bulwer treaty of 1850 though Mexico and Great AND UTTERANCES OF NATIONAL ORGANS. 165 39. Understandings do not Require Forbearance in Pressing Inter- national Claims. The distribution of constitutional powers among various organs in the national and state governments of the United States often makes it very difficult for the President actually to satisfy claims which he has admitted to be valid under international law. In fact these constitutional limitations are well known to foreign nations. The United States has sometimes urged such difficulties as an excuse for failure to meet the obligation promptly. While such a plea has no validity whatever, under international law®*' it remains to be seen whether there is an international understanding whereby nations withhold pressure on just claims in view of constitutional difficulties in the delinquent state. '■ Every nation," said Justice McLean, " may be presvmied to know that, so far as the treaty stipulates to pay money, the legislative sanction is required. . . . And in such a case the representative of the people and the States exercise their own judgment in granting or withholding the money. They act upon their own responsibility and not upon the responsibility of the treaty-making power." ^'^ The theory is attractive for delinquent states. Unfortunately for them it is not practiced. No such understanding of interna- tional law exists. The United States did not withhold pressure from France when she pleaded the refusal of her legislature to appropriate for carrying out the claims treaty of 183 1.^® Nor have European nations withheld pressure from the United States in similar circumstances. Congress has always, though generally with much protestation by the House of its untrammeled discretion, appropriated money where treaty or international law has required,*^ Britain protested. See Moore, Digest, 5: 205-206; Crandall, op. cit., pp. 85, 381; Wright, Minn. Lazv Rev., 4: 16; supra, sees. 27, 28. It has been the usual practice to submit such explanatory notes to the Senate. See Cran- dall, op. cit., pp. 86-89 ; Moore, Digest, 5 : 207, 284. ^^ See supra, sec. 22 ^t ^^Q- ^"^ Turner v. Am. Baptist Missionary Union, 5 McLean, 347, 1852, para- phrased in Wharton, Digest, 2 : jt,; Moore, Digest, 5 : 222. ^^ President Jackson recommended reprisals on this occasion. (Moore, Digest, 7: 123-126.) See also note of Secretary of State Livingston to the French government, supra, chap, i, note 3, and of Mr. Wheaton, Minister to Copenhagen, to Mr. Butler, Attorney General, Jan. 20. 1835. Wharton, Digest, 1 : 36. ®^ Infra, sees. 149, 256. 166 WRIGHT— CONCLUSIVENESS OF THE ACTS but the states have often failed in performing essential acts. Thus Louisiana failed to take sufficient interest in. apprehending those guilty of lynching Italians in the nineties, nor did she take measures adequate to prevent the frequent repetition of these gross violations of the Italian treaty of 1871. In the state of congressional legis- lation the power of the national government to act within the states was not adequate and Italy was so informed but there was no abatement of diplomatic pressure. In fact, Italy at length with- drew her ambassador and the United States was forced to pay the indemnity demanded. ^*^ Experience seems to show that it is unwise to assume the exist- ence of such international understandings. Nations are wont to demand the pound of flesh. " To calculate upon real favors from nation to nation," said Washington. '' is an illusion which expe- rience must cure, which a just pride ought to discard." ®^ Such understanding may be well to follow in pressing claims against 'Others but to expect that others will observe them in pressing claims against us is unwise.^- The United States should so -modify its laws and the understandings of its own constitution that •acknowledged obligations of the nation under international law and treaty will be promptly executed. Thus from the standpoint of international law, the national authority for meeting international responsibilities is the important element in the control of foreign relations, and in the United States this authority is the President acting through the Secretary of State. Foreign nations are entitled to bring their grievances to him and to expect from him redress according to the standard of international law and treaty. Constitutional limitations upon his power to effect the redress are to them unknown, either by law or understanding. 90 Moore, Digest, 6 : 838 cf scq. See also infra, sees. 120, 149. ^1 Farewell Address, Sept. 17, 1796, Richardson, ot>. cit., i : 223. ^2 Vattel makes a similar distinction : " Since the necessary (natural or moral) law is at all times obligatory upon the conscience, a Nation must never lose sight of it when deliberating upon the course it must pursue to fulfill its duty ; but when there is a question of what it can demand from ether states, it must consult the voluntary (positive) law whose rules are devoted to the welfare and advancement of the universal society," op. cit.. Introduction, sec. 28. AND UTTERANCES OF NATIONAL ORGANS. 167 With the making of inteniational agreements on the other hand foreign nations are entitled to assume no such Presidential omnipo- tence. The United States cannot be bound by new engagements until the organs designated by the Constitution have acted. In the meeting of international responsibilities, international law is prior, in the making of international engagements the Constitution is prior. PART III. Constitutional Limitations upon the Foreign Relations Power. CHAPTER V. Limitations upon State Powers. 40. Position of the Foreign Relations Power under Constitutional Laiv. From the standpoint of international law the essential element in the foreign relations power of any state is the authority rec- ognized by foreign states as representing the state and competent to meet its international responsibilities. We have seen that in the United .States this authority is the President acting through the Department of State. Foreign states with claims or complaints need know nothing of constitutional powers or limitations. They are entitled to present their cases to the President through the State Department and to demand of him satisfaction according to the measure of international law and treaty. If he is luiable to obtain it the United States is liable to such measures of redress as inter- national law may permit the claimant state. In sharp contrast, is the position of the foreign relations power under constitutional law. The question is not of responsibility but of power. Under constitutional law the foreign relations power consists of those organs of government competent to perform the various acts connected with the conduct of foreign relations. 168 WRIGHT— LIMITATIONS UPON STATE POWERS. These acts may be classified as (i) the meeting of international responsibilities, (2) the making of international agreements (3) the making of national decisions of international importance. The first includes the observance and enforcement of international law and treaty. The second includes the settlement of international controversies and the making of treaties. The third includes the recognition of facts and the declaration of policies of international significance. Before considering the constitutional authority for performing these acts, however, it will be well to recall certain fundamental principles of the Constitution. 41. • Relation Between State and National Pozvers. Under American constitutional law the legal competence of any organ is determined by two factors, the authorization of power and restrictions upon the exercise of power. With one hand the people are supposed to have granted certain powers expressed in written constitutions, to be exercised by governmental organs, for the general welfare.^ but with the other hand they are supposed to have taken away in part the powers thus granted through re- strictions upon their exercise expressed in bills of rights, guar- antees and prohibitions for the protection of private individuals, subordinate governmental areas and particular organs of the gov- ernment.- The authority for all powers exercised by organs of 1 " The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legislative authority." Cooley, Consti- tutional Limitations, 6th ed., p. 39, citing McLean, J., in Spooner v. McConnell, i McLean 347, Waite, C. J., in Minor v. Happersett, 21 Wall. 162, 172, etc. For influence of the theories of popular sovereignty and the social contract on the constitutional fathers, see Merriam, Am. Political Theories, N. Y., 1903, p. 38; Willoughby, Am. Constitutional System, N. Y., 1904, p. 23 ct seq. 2 The theory of constitutional limitations derived from the dogma of separation of powers and from the supposed division of sovereignty between the state and nation was prominent in the federal convention, but the Fed- eralist (No. 84) thought a bill of rights unimportant. The Jeffersonian Republicans took a different view and succeeded in having the first ten amendments attached to the Constitution, thereby following the usual cus- tom in state constitutions. See Cooley, of^. cit., chap. ix. p. 311 ct seq. P'or influence of theories of separation of powers, divided sovereignty, and natural rights upon the constitutional fathers, see Merriam, op. cit., pp. 107, 146, and Willoughby, loc. cit. WRIGHT— LIMITATIONS UPON STATE POWERS. 169 the national government comes from the federal Constitution either by express or implied delegation. The authority for all powers exercised by state governments comes from their own Constitutions and may include all governmental powers the exercise of which does not conflict with the full exercise of its delegated powers by the national government, and is not expressly prohibited by the federal Constitution. This theory of the division of governmental authority between national and state governments is set forth in the tenth amendment and the sixth article of the federal Con- stitution. " 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- " This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the Land ; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwith- standing." The system may be characterized by the three phrases : national delegated powers, state residual powers, and national supremacy.^ 42. Constitutional Prohibitions of State Power. Restrictions upon the exercise of state power may exist by virtue of (i) express or implied constitutional prohibitions or (2) as a result of action taken by national governmental organs. Consti- tutional restrictions may be expressed in the state's own Constitu- tion or in the federal Constitution. In the latter are several express restrictions upon the exercise of state power. Some are for the protection of private rights such as the prohibition of laws im- pairing the obligation of contracts, ex post facto laws and laws de- priving persons of life, liberty and property without due process of law.* Others are intended to insure the centralization of power in matters of national interest, especially in the control of for- eign relations. Such are the prohibitions against treaty making, war making, import, export and tonnage duties. ° In addition are ^ See Willoughby, Const. Law, pp. 53. 78. * Constitution, Art. I, sec. 10, cl. i. Amendment XIV. 5 Ibid., Art. I, sec. 10. 17(> WRIGHT— LIMITATIONS UPON STATE POWERS. several prohibitions implied from the nature of the federal union such as the prohibitions against secession" and the taxation of agencies of the national government.'^ Other prohibitions have been implied from the necessarily exclusive character of certain powers delegated to the national government such as the power to regulate foreign commerce, except purely local regulations, and to provide for the naturalization of aliens.^ 43. Action of National Organs Liniiting State Powers. State powers may also be restricted in their exercise by the principle of national supremacy. As national organs exercise more and more of their concurrent powers, state powers are correspond- ingly reduced. For example when Congress passes bankruptcy statutes or statutes fixing standards of weights and measures, the state's power in these fields is lost and state statutes on the subject automatically cease to operate though if the national statute is re- pealed they automatically come into force again.^ The state police power has been greatly restricted by the more complete exercise by the national government of its powers to regulate interstate commerce, to establish postoffices and post roads and to tax.^° No less remarkable, however, has been the reduction of state powers through the exercise of national powers relating to foreign relations. Thus wars have justified legislation by Congress such as recently illustrated by the draft acts, acts author- izing railroad, telegraph, food and fuel control, and acts punishing espionage and disloyal conduct. These have all entered fields ordinarily within state control. Similar reductions of state power but in less degree have resulted from a state of neutrality and the consequent operation of laws punishing offenses against neutrality, authorizing national censorship of telegraph and radio communica- tion and a closer supervision of commercial transactions. Even c Texas z: White, 7 Wall. 700 (1868). 7 McCulloch V. Md., 4 Wheat. 316, 432; Dobbins z: Erie County, 16 Pet. 435. s Willoughby, op. cit., pp. 73-/4 ; J. P. Hall, Constitutional Law, pp. 254, 288; Cooley V. Port Wardens, 12 How. 299; Chirac v. Chirac, 2 Wheat. 259. 0 Willoughby, op. cit., pp. 74, 779. 1" See Cushman, The Police Power of the National Government, 1920, reprinted from the Minn. Lazv Rev., vols. 3, 4. WRIGHT— LIMITATIONS UPON STATE POWERS. 171 in time of peace the exercise of foreign relations powers has shown a tendency to narrow state power. Thus Congress has extended the jurisdiction of federal courts over many cases involving treaty interpretation, over numerous controversies where aliens or persons especially protected by international law are parties, and over many offenses against international law and treaty. Congress has also given national officers authority to enforce such treaties as those protecting migratory birds, and fish in boundary waters, and those requiring extradition of criminals and prohibition of the white slave traffic. Many self-executing treaties have limited state power without congressional action such as those according property and personal rights to aliens. ^^ Although this limitation of state powers by action of national organs has been a patent phenomenon, its constitutionality has been questioned, especially so far as effected through exercise by the national government of its power over foreign relations. Thus it has been alleged that all state powers are not merely residual but that some, for instance the police power, are " reserved " powers incapable of limitation by any exercise of its delegated powers by the national government. It will readily be seen that this notion is wholly incompatible with the principle of national supremacy and while it has great historic importance, it never commanded whole- hearted support from the courts and at present enjoys no legal recognition.^- The concept of " reserved " powers is, however, of importance as an " understanding " of the Constitution. In practice both Congress and the treaty-making power have sometimes re- frained from fully exercising their powers out of respect for state susceptibilities, and the courts have sometimes given rather strained interpretations to treaties for the same reason. ^^ We may conclude that state exercises of power in the field of foreign relations have been so restricted that such powers hardly exist at all. 1^ See Corwin, National Supremacy, N. Y., 1913; Sutherland, Constitu- tional Power and World Affairs, N. Y., 19 19. ''■-Infra., sees. 48-51. 13 Infra, sec. 50. 172 WRIGHT— LIMITATIONS UPON NATIONAL POWERS, CHAPTER VI. Limitations upon National Powers : Private Rights and States' Rights. 44. Nature of Prohibitions. Restriction upon the exercise of power by national organs may be expressed in the federal Constitution or implied from the rights guaranteed the states and individuals and the independence guar- anteed the departments of government by the federal Constitution Whether stated in the negative form of a prohibition against the national government or in the positive form of a right or privilege guaranteed the individual, state, or particular organ of government, the eflfect is the same. These restrictions fall into three groups, (i) Some are in behalf of the states, as those prohibiting anti-slave-trade laws before 1808 and the freeing of fugitive slaves;^ those prohibiting direct taxes except in proportion to population, export taxes and discriminatory commercial or revenue regulations or tariffs ; ^ those prohibiting the formation of new states within the jurisdiction of existing states or the junction of states without their consent;^ and those implied from the guarantee to the states of territorial integrity, a Republican form of government and immunity of their necessary governmental organs from taxation.* (2) A second class of restrictions is in behalf of the separation of powers as that prohibiting members of the House or Senate from holding any office under the United States,^ that prohibiting appropriations except by " law," ^ and those implied from the privileges expressly guaranteed certain organs or from the separation of the legislative, executive and judicial departments.^ (3) The most numerous prohibitions are in behalf of individual rights and interests. Thus the indi- vidual's supposed interest in democratic government. Puritanic 1 Constitution. I, sec. 9, cl. i ; IV, sec. 2, cl. 3. ^ Ibid., I, sec. 9, cl'. 4-6; sec. 8, cl. i. ^ Ibid., IV, sec. 3, cl. i, 2. 4 Ibid., IV, sec. 4. See also infra, sec. 48. s Ibid., I, sec. 6, cl. 2. ^ Ibid., I, sec. 9, cl. 7. " See infra, sees. 52-55. PRIVATE RIGHTS AND STATES' RIGHTS. 173 morals, and the general welfare are protected by prohibitions against titles of nobility, the acceptance by officers of foreign presents, the abridgment of the voting privilege on account of race, color, previous condition of servitude, or sex ; ^ by prohibitions against slavery and intoxicating beverages," and by the implied prohibition against taxes not for the " general welfare." ^'^ The individual's interest in life, liberty and property are especially protected by prohibitions against suspension of the privilege of habeas corpus except in emergency, bills of attainder and ex post facto laws ; ^^ prohilMtions against religious tests for officers, against the establishment of religion, the abridgment of the freedom of speech, press, assembly, petition and the bearing of arms ; ^- prohibitions against compulsory quartering of troops in time of peace, unreasonable searches and seizures, the taking of life, liberty or property without due process of law and the taking of private property for public use without just compensation,^^ and finally prohibitions designed to assure a fair trial, especially in criminal cases, as the requirement of jury trial and compulsory process to obtain witnesses and the prohibition against excessive bail, double jeopardy, cruel and unusual punishments.^* Prohibitions for the protection of individual interests have seldom affected the power of national organs in the conduct of foreign relations. A. Private Rights. 45- Effect upon Pozvcr to Meet International Responsibilities. Such guarantees have not interfered with the meeting of responsibilities imposed by international law or treaty. ^^ They are ^Ibid., I, sec. 9, cl. 8; Amendments XV, XIX. ^Ibid., Amendments XIII, XVIII. ^<^ Ibid., I, sec. 8, cl. i. See also Willoughby, op. n't., p. 39; J. P. Hall, Constitutional Law, pp. 173-174. " Ibid., I, sec. 9, cl. 2, 3. ^2 Ibid., VI, sec. 3, Amendments I-II. "^^ Ibid., Amendments III-V. ^* Ibid., Ill, sec. 2, cl. 3; sec. 3; Amendments V-VIII. 15 Most Constitutional Limitations cannot affect the power to execute treaties, because they apply to the treaty-making power as well as other organs of government. Consequently if an apparent treaty proved inex- ecutable by virtue of a constitutional limitation, it would really be no treaty 174 WRIGHT— LIMITATIONS UPON NATIONAL POWERS, not applicable exterritorially, thus do not interfere with the carrying out of treaties giving American consular courts jurisdiction over crimes committed by American citizens abroad. It was held that such a consular court in Japan was not obliged to accord jury trial in criminal cases. ^'^ Nor have constitutional guarantees interfered with the execution of treaties for the internment of belligerent troops entering the territory when the United States is neutral, the return of seamen deserting from foreign vessels, and the extra- dition of criminals found within the United States. Compliance with the terms of the treaty has been held to accord the person subject to internment,^' return^'' or extradition^^ the " due process of law " required by the \''th Amendment. It is, however, doubt- ful whether an extradition authorized by the President in the absence of treaty would be legal though one Arguelles was thus extradited to Spain under authority of President Lincoln in 1864.^** Doubt has been expressed as to the power of the United States to execute treaties requiring the punishment of persons for certain acts, such as the acceptance of letters of marque, therein described as crimes.-^ There has also been doubt of its ability to punish those violating rights guaranteed by treaty or international law to at all, but ultra vires and void from the start. See Infra, sec. 46. As we have noticed, however, the United States would be bound by such an obligation because the foreign government cannot be presumed to know of obscure constitutional Hmitations. Supra, sec. 31. See also Willoughby, op. cit., p. 515. 16 /n re Ross, 140 U. S. 453 (1890). !'■ Ex Parte Toscano, 208 Fed. Rept. 938. IS Tucker v. Alexandroff, 183 U. .S. 424 (1902); Moore, Digest, 6, 423, '^^ U. S. V. Jonathan Robbins, Bees Adm., 266 ; The British Prisoners, I Wood and Min. 66; Neeley v. Henkel, 180 U. S. 109 (1901), Moore, Digest, 6: 267, 270. 20 Dicta in Terlinden v. Ames, 184 U. S. 271, 289 (1902), and Tucker v. Alexandrofif, 183 U. S. 424, 431 (1902); Moore, Digest, 6: 247-253; Wil- loughby, op. cit., p. 479. 21 See Marcy, Sec. of State, to Mr. Aspuria, Nov. 15, 1854, Moore, Digest, 2: 978; 5: 169; Livingston, J., in the Bello Corrimes, 6 Wheat. 152, and dis- cussion by Wright, Am. Jl. Int. Lazv, 12: 79. The objection in these cases, however, v.'as based on a supposed encroachment by the treaty upon the power of Congress to " punish , . . offenses against the law of nations." PRIVATE RIGHTS AND STATES' RIGHTS. 175 resident aliens.-- In these cases, however, the difficulty has arisen from the strictly statutor\ character of the jurisdiction of federal courts and not from constitutional guarantees. Congress is compe- tent"'' and in fact has provided for the punishment of offenses of the first though not of the second character in federal courts.-'* Constitutional guarantees do not seem to interfere with a due observance of the immunities guaranteed to foreign sovereigns, diplomats, naval and military forces, consuls, etc., by international law or treaty. Thus foreign diplomatic officers have been con- sidered immune from compulsory attendance as witnesses.-^ In a case where the accused claimed a constitutional right to have a French consul subpoenaed as a witness in a criminal trial, the California court upheld the consul's claim of treaty immunity on the ground that the guarantee of the \^Ith Amendment of the Con- stitution gave the accused only the same rights as the prosecution and not an absolute right " to have compulsory process for obtain- ing witnesses in his favor." -'' It also appears that the prohibition amendment does not interfere with the exemption from inspection enjoyed by the baggage of diplomatic officers.^" Finally, constitutional guarantees have not impaired the gov- ernment's ability to follow the custom of international law whereby the succeeding government continues the existing system of civil and criminal law in newly acquired territory. In the insular cases the Supreme Court held that constitutional guarantees did not apply to unincorporated territory ex propria vigore and hence the pre- existing system of law in the Philippines, Porto Rico, etc., although '2 Objection has been made in Congress on the score of encroachment upon state reserved powers. See Taft. U. S. and Peace, N. Y., 1914, p. 74. 23 Baldwin v. Franks, 120 U. S. 678. 2t U. S. Rev. Stat., sees. 5373-5374 ; Criminal Code of 1910, sees. 304-305 ; infra, chap. XII. -^ See case of the Dutch minister Dubois, 1856, who refused to appear in a criminal trial, and case of the Venezuelan minister, Comancho, who with consent of his government waived his privilege and appeared as a witness in the Guiteau trial for murder of President Garfield. Moore, Digest, 4: 643-645. -'^ In re Dillon, Sawver 561, Fed. Case No. 3914 (1854); Moore, Digest, 5: 78. 2^ The papers of October 22, 1920, reported a controversy on this sub- ject between the State and Treasury departments at Washington. 176 WRIGHT— LIMITATIONS UPON NATIONAL POWERS, not providing for jury trial and other methods guaranteed by the Constitution, might be continued.^* The court, however, suggested that certain " natural rights " among these guarantees, such as that requiring " due process of law," might apply even in these ter- ritories.-^ Clearly the prohibition of slavery stated in amendment XIII to extend to "any place subject to the jurisdiction" of the United States would so apply. However, there is no international custom favoring the continuance of institutions disapproved by the usual standards of justice and morality.^'' 46. Effect upon Power to Make International Agreements. The power to make international agreements, likewise, seems almost unafifected by constitutional guarantees of private right. Many of these guarantees apply to all organs of the government, and hence in theory limit the treaty-making power, but a treaty has never been held void in consequence.^^ The courts have shown an inclination to reconcile such guarantees to treaty provisions where a conflict has been alleged. The various cases we have considered in which the power of the government to meet responsibilities founded on treaty has been sustained likewise indicates the competence of the treaty power. According to Amer- ican constitutional theory and the terms of the " necessary and proper clause " the national government is competent to carry into effect all of its constitutional powers.^" Hence if the courts had held the execution of treaties for extradition, internment, or the return of deserting seamen to be in violation of constitutional guarantees, they would in reality have been holding the treaty itself void as beyond the competence of the treaty power.^^ This issue was definitely raised in the case of the French consul referred to. In this case as we have seen the California court upheld the -8 Hawaii v. Mankichi, 190 U. S. 197 ; Dorr v. U. S.. 195 U. S. 138. 29 Dicta of Brown, J., in Downes v. Bidwell, 182 U. S. 244, 282 ; Dorr v. U. S., 195 U. S. 138. ^^ As to the attitude of international law on slavery see Story, J., in LT. S. V. La Jeune Eugenie, 2 Mason 409 (1822). "1 Willoughby, op. cit., p. 493 ; Corvvfin, National Supremacy, p. 5 ; An- derson, Am. Jl. Int. Law, i: 647; Wright, ibid., 13: 248, infra, sec. 173. "2 Marshall, C. J., in McCulloch v. Md., 4 Wheat. 316. 33 Supra, note 15. PRIVATE RIGHTS AND STATES' RIGHTS. 177 consul's claim to immunity by an interpretation reconciling the treaty clause and the constitutional guarantee in question. How- ever, in a diplomatic controversy resulting from a French protest against the original arrest of the consul for refusal to obey the subpoena, Secretary of State Alarcy took a less favorable view of the treaty : ^* " The Constitution is to prevail over a treaty where the provisions of the one come in conflict with the other. It would be difficult to find a reputable lawyer in this country who would not yield a ready assent to this proposition. Mr. Dillon's counsel admitted it in his argument for the con- sul's privilege before the court in California. The sixth amendment to the United States Constitution gives, in general and comprehensive language, the right to a defendant in criminal prosecutions to have compulsory process to procure the attendance of witnesses in his favor. Neither Congress nor the treaty-making power are competent to put any restriction on this con- stitutional provision. ... As the law of evidence stood when the Constitu- tion went into effect, ambassadors and ministers could not be served with compulsory process to appear as witnesses, and the clause in the Constitu- tion referred to did not give the defendant in criminal prosecutions the right to compel their attendance in court. But what was the case in this respect as to the consuls? They had not the diplomatic privileges of am- bassadors and ministers. After the adoption of the Constitution the de- fendant in a criminal prosecution had the right to compulsory process to bring into court as a witness in his behalf any foreign consul whatsoever. If he then had it, and has it not now, when and how has this constitutional right been taken from him ? Congress could not take it away, neither could the treaty-making power, for it is not within the competence of either to modify or restrict the operation of any provision of the Constitution of the United States." Though with his interpretation of the Constitution, Secretary Marcy was doubtless correct from a constitutional point of view,^^ yet in the international discussion he found it necessary to acquiesce in the French view and make amends for the arrest.^" Since France had not been informed of the constitutional limitation when the treaty was made she was entitled to hold the United 3* Moore, Digest, 5 : 167. 35 To the same effect, see Mr. Marcy to Mr. Aspuria, Nov. 15, 1854; Mr. Blaine. Sec. of State, to Mr. Chen Lan Pin, March 25, 1881 ; Mr. Cass to Lord Napier, Feb. 7, 1859 ; Moore, Digest, 5 : 169, 177 ; Cherokee Tobacco Case, II Wall. 616 (1870) ; Geofroy v. Riggs, 133 U. S. 258 (1890) ; Corwin, National Supremacy, p. 5; Crandall, op. cit., p. 266; VonHolst, Constitutional Law of U. S., Chicago, 1887, p. 202. •■'6 Moore, Digest, 5 : 80. 178 WRIGHT— LIMITATIONS UPON NATIONAL POWERS, States bound.^' However, the state department has adhered to Secretary Marcy's position and instructed negotiators to exclude such provisions from future treaties. ^^ Finally it has been held that the treaty power violates no con- stitutional guarantee when it refuses to press the claims of Amer- ican citizens against foreign governments or settles them unjustly by compromise.^* Conventions of the latter effect cannot be said to deprive an individual of a guaranteed right, because the con- stitution can guarantee no more than the government can obtain.*" Where valid private claims are bartered for national advantage, as were the French Spoliation claims in 1801, a moral duty of the government to compensate undoubtedly exists and was acted on in this case after the lapse of a century.'*^ The constitutionality of the treaty, however, was not questioned. 47. Effect on Power to Make Decisions on National Policy. Although important decisions on foreign policy such as the recognition of foreign states, governments and belligerency, the annexation of territory and the declaration of war and intervention may have important effects upon the life, liberty or property of individuals, such acts are considered " political questions " not reviewable by the courts and are not affected by constitutional 3" Supra, sec. 31. 3s Mr. Fish, Sec. of State, to Mr. Bassett', Oct. 18, 1872, Moore, Digest, 5: 81. This provision is omitted in consular treaties with Greece and Spain, 1902, Malloy, Treaties, pp. 855, 1701 ; Corwin, National Supremacy, p. 15; Wright, Am. Jl. Int. Lazv, 13: 260. 39 Comegys v. Vasse, i Pet. 193 (1828). "In as much as the govern- ment is under no legal obligation to any citizen to prosecute his claim against a foreign country, but is guided solely by the public interest, considerations of public policy and upright dealing between states may warrant the aban- donment of a claim." Borchard, op. cit., p. 367. •*o Corwin, National, Supremacy, p. 16, and Borchard, op. cit., p. 366 ct seq. 41 Gray v. U. S., 21 Ct. CI. 340, and Gushing v. U. S., 22 Ct. CI. i. Meade's claim, however, though generally admitted to have been uniustly settled by the Spanish treaty of 1819, has never been liquidated by the United States. See Borchard, op. cit., pp. 2>77> 380. PRIVATE RIGHTS AND STATES' RIGHTS. 179 guarantees.'*- The court refused to enjoin the Secretary of the Treasury from disbursing funds for construction of the Panama Canal on suit of one Wilson, a tax-payer, on the ground that Panama was not properly a state and the United States had no authority. The recognition of Panama by the President and acceptance of his act by Congress were held conclusive by the court. '*^ " For the courts to interfere," said Justice Brewer, " and at the instance of a citizen, who does not disclose the amount of his interest, stay the work of construction by stopping the payment of money from the Treasury of the United States therefore, would be an exercise of judicial power which, to say the least, is novel and extraordinary. ... In the case at bar it is clear not only that the plaintiff is not entitled to an injunction, but also that he presents no ground for any relief." In the carrying out of foreign policies and decisions in peace and war the national government has been very little impeded by constitutional guarantees. It may exclude or expel aliens without judicial hearing, even when they allege citizenship, the courts holding that in such cases administrative hearing is " due process of law." ** It may annex territory and subject it to military*^ *2 Williams z\ Suffolk Ins. Co., 13 Pet. 415; The Divina Pastora, 4 Wheat. 52; Jones z'. U. S., 137 U. S. 202; The Prize Cases, 2 Black 635; Willoughby, o/j. cit., pp. 999-1008. 43 Wilson z: Shaw, 204 U. S. 24 (1907). 4*U. S. v. Ju Toy, 198 U. S. 253 (1905). Holmes, J., also suggested that the constitutional guarantee might not apply to an immigrant because " although physically within our boundaries (he) is to be regarded as if he had been stopped at the limit of our jurisdiction and kept there while his right to enter was under debate." On power to expel see Fong Yue Ting v. U. S., 149 U. S. 698 (1893). The immigration act of Feb. 5, 1917, art. 19, pro- vides for return of immigrants illegally entering within a period of 5 years, on warrant of the Secretary of Labor, and the act of Oct. 16, 1918, provides for the expulsion of any alien within enumerated classes, on warrant of the Secretary of Labor. Rule 19 of May i, 1917, gives the procedure of en- forcement. See Dept. of Labor, Bureau of Immigration, ed. of Immigra- tion Laws, 1919, and compiled statutes, sees. 4289 1/4 jj. 4289 1/4 b(2). For Chinese exclusion and deportation provisions see acts, May 6, 1882, sees. I, 12 (22 Stat. 58, 61), as amended July 5, 1884 (23 stat. 115, 117), Sept. 13. 1888, sec. IS (28 stat. 1210). For finality of decisions of immigration and customs officials see act, Aug. 18, 1894, sec. i (28 stat. 390). See Comp. Statutes, sec. 4290 et scq.; J. P. Hall, Const. Law, pp. 124, 325; Willoughby, op. cit., pp. 1286-1293. 45 Neeley v. Henkel, 180 U. S. 109 (1901). PROC. .A.MER. PHIL, soc, VOL. LX., M, March, 7, 1922. 180 WRIGHT— LIMITATIONS UPON NATIONAL POWERS, or civil government*'' untrammeled by constitutional guarantees. The constitutional guarantees do not extend to annexed territory until it has been incorporated by act of Congress.*'^ The government may give its consuls, diplomatic and naval officers authority over American citizens abroad, even to the extent of criminal convictions without jury or other constitutional re- quirements.'*^ By a recognized custom at the time the Xlllth Amendment was adopted, seamen may be compelled to fulfill their contracts against their will and by force without violation of the prohibition against slavery and involuntary servitude.*^ Though the Supreme Court has said,^'' " The war power of the United States, like its other powers ... is subject to applicable constitutional limitations," practice indicates that few such limita- tions are applicable.^^ Military discipline may be enforced within the army and navy by courts martial exempt from constitutional restrictions and subject only to the articles of war enacted, by. Congress. ^^ Armies may be raised by draft without violation of constitutional guarantees, "^^ and by express exception of the Vth Amendment persons in the service may be held to answer for infamous crimes without presentment or indictment of grand jury. Foreign territory, or even domestic territory in rebellion may be 46 Dorr V. U. S., 195 U. S. 138. 4T Ibid. *^ In re Ross, 140 U. S. 453 (1890). 49 Robertson v. Baldwin, 165 U. S. 275 (1897). This rule was altered by the La Follette Seaman's act of 1915, sec. 16, 38 Stat. 1184, Comp. Stat., sec. 8382a. ^0 Brandeis, J., in Hamilton v. Ky. Distilleries and Warehouse Co., 251 U. S. 146, 156. See also Ruppert r. Caffey, 251 U. S. 264. 51 " In my judgment, the power exists without any restrictions whatso- ever, save those which are imposed by such express prohibitions of the Constitution, and such fundamental restraints upon governmental action, as are obviously and clearly intended to apply at all times and under all conditions. There is, in this field of governmental activity therefore, little, if any occasion to employ those niceties of logical analysis which have crys- tallized into canons of statutory and constitutional construction, the appli- cation of which tends to elucidate the meaning of language otherwise ob- scure." Sutherland, Constitutional Power and World Affairs, N. Y., 1919, p. 94. Senator Sutherland's language doubtless elucidates the obscurities con- nected with the limitations of the war power. 52 Dynes v. Hoover, 26 How. 65. 53 Selective Draft Cases, 245 U. S. 366. PRIVATE RIGHTS AND STATES' RIGHTS. 181 occupied and governed without observance of the guarantees.'* Within any territory of the United States the privilege of the writ of habeas corpus may be suspended by Congress when in case of rebelhon or invasion the pubHc safety may demand it. Though such a suspension of the writ does not mean a suspension of the other guarantees and a rule of martial law except in so far as " necessity," due to public disturbance and an actual closure of the courts, may demand, yet the practice of the Civil War indicates that an actual rule of martial law may be established in territory not the scene of immediate violence. ^^ In pursuance of war. Congress may provide for the confiscation of property in enemy territory (even though American territory in rebellion) ^^ or property belonging to enemy persons wherever found^'^ without following the guarantees of the Vth and Vlth Amendments. Such confisca- tions are authorized under the power of Congress to make rules concerning captures and not under its power of criminal legislation, hence the guarantees for criminal trial do not apply. ^^ Under military necessity executive authority alone will justify the confisca- tion of property.'" Congress may also provide for the internment and expulsion of alien enemies by administrative process.®" 54Neeley z: Henkel, i8o U. S. log (igoi), Ford 7-. Surget, 97 U. S. 594- 55 Ex parte Milligan, 4 Wall. 2, and dissent by Chase, C. J., which Winthrop (Military Law, 2: 38) regards as the "sounder and more reason- able " view. 56 Miller V. U. S., 11 Wall. 268. 57 Brown z: U. S., 8 Cranch no. See Trading with the Enemy Act, Oct. 6, 191 7. Property of loyal citizens may be taken under necessity but must be paid for as required by the Vth Amendment, U. S. z'. Russell, 13 Wall. 623 ; Willoughby, op. cit., p. 1243. 58 Miller v. U. S., 11 Wall. 268. 59 Mitchell V. Harmony, 13 Wall. 115. It has been held that the rights of the President as commander-in-chief, though not limited by the Constitu- tion, are limited by the international law of war and consequently confisca- tion of property beyond those allowed by the law of war can only be justified by act of Congress. P)rown ■:•. U. S.. 8 Cranch no, thus held that enemy property on land was not subject to confiscation except by express act of Congress. See also Lieber's Instructions for the Government of the Armies in the Field, Gen. Order. 100, April 24, 1863, arts. 4, 11; and Sutherland, op. cit., pp. 75, 77. Willoughby thinks the President may even go beyond the law of war (op. cit., 1212) and, regarding the Emancipation Proclamation of Jan. i, 1863, as a confiscation of enemy property on land. 182 WRIGHT— LIMITATIONS UPON NATIONAL POWERS, We may conclude that constitutional guarantees of individual rights restrict the foreign relations power very little whether acting to meet international responsibilities, to make international agree- ments or to make and carry out national decisions and policies. B. States' Rights. 48. Nature of Prohibition. Restrictions upon the exercise of power by national organs may be implied from the guarantee of certain rights to the states. Territorial integrity,''^ a republican form of government^- and the independence of their governmental organs from taxation or other burdening*'^ appear to be genuine "states' rights" and must be distinguished from the so-called " reserved powers " of the states. The former constitute definite limitations upon the exercise of national power, the latter if they restrict the exercise of national powers at all, do so simply by virtue of constitutional understand- ings. 49. Effect upon Pozver to Meet International Responsibilities. The power to meet international responsibilities does not seem to be limited by any states' rights. The power to define and punish ofifenses against the law of nations and the necessary and proper clause of the Constitution*'* confer upon Congress ample power to provide for carrying out all treaties and all responsibilities under President Lincoln probably did so by that proclamation. For criticism see Burgess, The Civil War and the Constitution, 2: 117; Rhodes, History of U. S., 4 : 70. See also infra, sec. 218. 6'' See Alien Enemy Act, July 6, 1798 (i stat. 577), amended July 6, 1812 (i stat. 781, rev. stat., sees. 4067, 4068), and April 16, 1918, making it applicable to women, which authorizes internment and expulsion. The President issued proclamations under them April 6, Nov. 16, Dec. 11, 1917, and April 19, 1918. See Comp. Stat., sees. 7615-18. See also Brown v. U. S., 8 Cranch no. ^1 Constitution, IV, sec. 3, cl. i ; sec. 4. 62 Ibid., IV, sec. 4. "3 Collector 7'. Day. 11 Wall. 113; Willoughby, op. cit., pp. 110-114; Willoughby, The American Constitutional System, pp. 123, 129. For ex- press prohibitions upon the national government in behalf of the states, see supra, sec. 44. 64 Constitution, I, sec. 8, cl. 10, 18. PRIVATE RIGHTS AND STATES' RIGHTS. 183 against neutrality, offenses against foreign diplomatic officers, and the counterfeiting of foreign securities have been held to violate international law. Legislation of Congress punishing offenses no guaranteed states' rights"^ and many acts for the carrying out of treaties have been sustained.*'^ Of this character are acts pro- viding for extradition and for the return of deserting seamen. The conclusion of treaties may unquestionably extend the power of Congress to provide for the exercise of police power within the states. Thus although the court held unconstitutional an act of 1907 rendering persons criminally liable for harboring immigrant women as prostitutes within a period of three years of landing, it indicated that if the law had been in pursuance of a treaty it would have been valid."' The Mann White Slave Act of 1910"^ actually includes provisions in pursuance of the International White Slave Convention of 1904. So also an act for the protection of migratory birds was held unconstitutional*"' but the court has sustained a similar act passed in pursuance of a treaty with Great Britain.'^* " The treaty in question," says Mr. Justice Holmes, " does not contra- vene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the loth Amendment. We must consider what this country has become in deciding what that amendment has reserved. . . . Valid treaties, of course, ' are as binding within the territorial limits of the states as they are effective throughout the dominion of the United States.' " Baldwin v. Franks, 120 U. S. 678, 683. No doubt the great body of private relations usually falls within the control of the state, but a treaty may over- ride its power. We do not have to invoke the later developments of con- stitutional law for this proposition ; it was recognized as early as Hopkirk v. Bell, 3 Cranch 454, with regard to statutes of limitation, and even earlier as to confiscation, in Ware v. Hylton, 3 Dall. 199. It was assumed by Chief Justice Marshall with regard to the escheat of land to the state in Chirac v. Chirac, 2 Wheat. 259, 275; Hauenstein v. Lynham, 100 U. S. 483; Geofroy v. Riggs, 133 U. S. 258; Blythe v. Hinckley, 180 U. S. 3^,3, 340. So, as to a limited jurisdiction of foreign consuls within a state. Wildenhus Case, 120 ^^ U. S. V. Arjona, 120 U. S. 479. 66 Mo. V. Holland, 252 U. S. 416 (1920). 67 Ullman v. U. S., 213 U. S. 138 (1909), declaring act of Feb. 20, 1907, sec. 3 (34 Stat. 898), void. 68 Act, June 25, 1910, sec. 6, 2>^ stat. 825. 69 U. S. V. Shauves, 214 Fed. 154; U. S. v. McCullagh, 227 Fed. 288. 70 Mo. V. Holland. 252 U. S. 416 (1920). 184 WRIGHT— LIMITATIONS UPON NATIONAL POWERS, U. S. I. See Re Ross, 140 U. S. 453. Further illustration seems unnecessary, and it only remains to consider the application of established rules to the present case. " Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another povi^er. The subject matter is only transitorily within the state, and has no permanent habitat therein. But for the treaty and the statute, there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the government to sit by while a food supply is cut ofif and the protectors of our forests and of our crops are destroyed. It is not sufficient to rely upon the states. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treat}' and statute must be upheld. Gary v. South Dakota, 250 U. S. 118." The present inability of federal courts to prosecute persons within the states guilty of violating the rights of aliens guaranteed by international law or treaty is not due to a limitation upon na- tional power but to an insufficiency of congressional legislation.'^^ .50. Effect upon Power to Make International Agreements. The national guarantee of territorial integrity and a repub- "lican form of government to the states limits the treaty power. The capacity of the treaty power to cede state territory was discussed in Washington's cabinet. Secretary of State Jefferson maintained that " the United States had no right to alienate one inch of the territory of any state " while Secretary of the Treasury Hamilton took the opposite view.'^- While admission of the supremacy of treaties granting Indian tribes an exclusive right in reservations within the states'^^ seems to go far toward admitting the right of the treaty power to alienate state territory, an actual cession was not here in question. In the only case of foreign cession of state territory that has arisen, the adjustment of the Maine boundary by the Webster-Ashburton treaty of 1S42, the political expediency if not the constitutional necessity of obtaining the state's consent was admitted. The compensation to be paid Maine and Massa- ''■i Willoughby, Am. Gonstitutional System, p. 108; Pomeroy, Gonst. Law, 9th ed., p. 571; Gorwin, National Supremacy, pp. 288-289; Taft. V. S. and Peace, 40 ct seq., Gammons, Am. II. Int. Laiv, 11: 6; Moore, Digest, 6: 839 et seq. 72 Jefiferson's Anas, March 11, 1792, Wharton, Digest, 2: 66. 73 Worcester v. Ga., 6 Pet. 515 (1832). PRIVATE RIGHTS AND STATES' RIGHTS. 185 chusettes was especially referred to in the treaty.'* The better opinion seems to hold that state consent must be obtained/^ though in case of necessity, as to end an unfortunate war, a treaty cession without such consent would doubtless stand. '^'^ The interpretation of the guarantee of a " Republican Form of Government " was held by the courts a political question in a case recognizing the legitimacy of the military government set up in Texas after the Civil War.^' Doubtless a treaty putting a state under a protectorate or otherwise subverting its government could be equally well reconciled with the guarantee. Legally, however, the guarantee unquestionably restricts the treaty power. The " reserved powers " of the states, however, do not limit the treaty-making power. Powers often claimed to be " reserved powers " may be classified as ( i ) the power to regulate exclusively state land and natural resources; (2) the power to exercise ex- clusive control over public services supported by state taxation ; (3) the power to exercise police control over classes of persons and businesses within the state in behalf of public safety, health, morals and economic welfare. Treaty provisions often guarantee to aliens rights of entry, residence landholding, inheritance, etc., equal to that of citizens or subjects of the most-favored nation. '^^ It has been alleged that such provisions are void in so far as they conflict with the exercise by the States of these " reserved " powers. The issue has been judicially considered in reference to state statutes discriminating against aliens, or aliens of a partic- ■^^ Art. V of treaty. See Moore, 5: 172-174, supra, sec. 31. This inci- dent is discussed in Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541, quoting Webster's Works, 5: 99, 6: 273. ■^5 Dicta in Lattimer r. Poteet, 14 Pet. 14 (1840); Geofroy v. Riggs, 133 U. S. 267 (1890); Insular Cases, 182 U. S. 316 (1901) ; Fort Leaven- worth Railroad Co. v. Lowe, 114 U. S. 525, 541; Moore, Digest, 5: 171- 17s; Butler, The Treaty Making Power, 1902, i: 411-413, 2: 238, 287-294; Corwin, National Supremacy, 130-134; Wright, Am. Jl. Int. Law, 13: 253. 76 Supra, sec. 2>2. ' " Texas v. White, 7 Wall. 700. ■^s Art. XI of the Treaty of 1778 with France and Art. I of the Treaty of 1894 with Japan, superseded by Art. I of the Treaty of 191 1, are examples of this type of provision. 186 WRIGHT— LIMITATIONS UPON NATIONAL POWERS, ular race or nationality (i) in the privilege of owning land/' operating mines,^° and taking fish^^ and game;*^ (2) in the use of public schools^^ and the right to labor on public works ;^* (3) and in the freedom of immigration,®^ labor,^*' personal habits,®^ and conduct of business. ®® In a few cases dicta damaging to the treaty- power have been uttered ; ®° sometimes the treaty has been sub- "9 Fairfax v. Hunter, 7 Cr. 503; Chirac z: Cliirac, 2 Wheat. 259 (1817); Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464 (1823) ; Carneal v. Banks, 10 Wheat. 259 (1825) ; California-Japanese con- trovers}', 1913, Corwin, op. cit., p. 2:^2. Art. VII of the treaty of 1853 with France made concessions to this " states' right." It allowed French- men to possess land on an equality with citizens " in all the states of the Union where existing laws permit it, so long and to the same extent as the said laws shall remain in force." As to the other states " the President engages to recommend to them the passage of such laws as may be neces- sary for the purpose of conferring the right." 80 People V. Noglee, i Cal. 232 (1850). 81 Griggs, Att. Gen.. 1898, 22 Op. 214. 82 Patsone v. Pa., 232 U. S. 138, 145, Mo. v. Holland, 252 U. S. 416 (1920). 83 California-Japanese school children controversy, 1906, Corwin, op. cit., p. 217; E. Root, Am. Jl. Int. Lazv, i: 273, and editorials, ibid., i: 150, 449. Art. IV of the Treaty of 1854 with Great Britain indicates that the United States doubted its right to control a state established utility without state consent. " The government of the United States further engages to urge upon the state government to secure to the subjects of Her Britannic Majesty the use of the several State Canals on terms of equality with the inhabitants of the United States." 84 Baker v. Portland, 5 Sawyer 566 (1879) ; Heim v. McCall, 239 U. S. (1915), Am. Jl. Int. Lazv, 10: 162. 85 Elkinson z'. Deliesseline, Leg. Doc. Mass. 1845 (Senate), No. 31, p. 39 (1823), Thayer, Cases in Constitutional Law, p. 1849, Corwin, op. cit., p. 125; Wirt, Att. Gen., 10: 661 (1824) ; Berrien, Att. Gen., 20: 431 (1831) ; The Passenger Cases, 7 How. 283 (1849) ; in re Ah Fong, 3 Sawyer 144; Henderson v. N. Y., 92 U. S. 259 (1875). 86 /;j re Tiburcio Parrotf, 6 Sawyer 349 (1880); Truax v. Raich, 239 U. S. 2>3, 43 (1915), Am. Jl. Int. Lazv, 10: 158. 8T Ho Ah Kow V. Nunan, 5 Sawyer 532 (1879). 88 Yick Wo V. Hopkins, 118 U. S. 356 (1886); Compagnie Francaise v. State Board of Health, 186 U. S. 380 (1902). Frequently in these cases the XIV Amendment as well as treaties have been in opposition to the exercise of state powers. See also Rocca v. Thompson, 232 U. S. 318. 83 Taney, C. J., in Holmes v. Jennison, 14 Pet. S40 (1840); The Pas- senger Cases, 7 How. 283, 465 (1849) ; Daniels, J., in The License Cases, 5 How. 504, 613; Grier, J., in The Passenger Cases, 7 How. 283 (1849). PRIVATE RIGHTS AND STATES' RIGHTS. 187 jected to a strained interpretation to save the State's power ; °° but in no case has a clear treaty provision been superseded by the state law. On the contrary, state statuies of this character have fre- quently been declared void when conflicting with clear treaty pro- visions."^ With respect to statutes relating to the control of natural resources and state-supported services, the attitude of the courts has been cautious, with a decided tendency in recent cases to com- promise by adopting interpretations of the treaty favorable to the state power.'-'- The question, however, has been on the applicability of the treaty, not upon its validity. A more extreme extension of the " reserved powers " doctrine has been put forward in the claim that unlimited discretion in the regulation and taxation of property and inheritances is a state power exempt from interference by the treaty-making power. Treaties of the character mentioned have sometimes conflicted with the alleged exclusive right of the state to regulate the ownership, transmission and inheritance of property within its limits.®^ An historical view of the many cases bearing upon this point shows that in the days of MarshalP* and since the Civil War°^ the Supreme Court has uniformly and in no uncertain voice sustained the treaty power as against these alleged states' reserved powers. Only during the period preceding the Civil War was there a wavering, even then confined to dicta."" 9" Compagnie Francaise v. State Board of Health, i86 U. S. 380 (1902). 9^ Chirac z: Chirac, 2 Wheat. 259 (1817) ; Elkinson f. Deliesseline, supra, note 42; ill re Tiburcio Parrott, 6 Sawyer 349 (1884); Truax v. Raich, 239 U. S. 2i^, 43 (1915), Am. Jl. Int. Law, 10: 158. 92Patsone r. Pa., 232 U. S. 138, 145; Heim v. McCall, 239 U. S. 175, 193 (1915)- Am. Jl. Int. Lazv, 10: 162. But see Mo. z'. Holland, supra, sec. 49. 93 Ware v. Hylton, 3 Dall. 199 (1796); Hopkirk v. Bell, 3 Cranch 454; Prevost V. Greenaux, 10 How. i (1856); Fredricksen v. La., 23 How. 443 (i86o) ; Hauenstein v. Lynham, 100 U. S. 483 (1879) ; Wynans Petitioner, 191 Mass. 276; People z: Gerke, 5 Cal. 381 (1855). 9* Fairfax z\ Hunter, 7 Cr. 603 (1813) ; Chirac z: Chirac, 3 Wheat. 259 (1817). 95 Hauenstein v. Lynham, 100 U. S. 483 (1879); Geofroy v. Riggs, 133 U. S. 258 (1890). 9^ Supra, note 89. 188 WRIGHT— LIMITATIONS UPON NATIONAL POWERS, Statesmen and text writers with few exceptions have taken a similar attitude in support of a broad treaty power.''^ We may accept the view of a California judge in a case involving the state intestacy laws.''^ "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 present case, to alter materially the statutes of distribution. If this was so to the full extent claimed, it might be a sufficient answer to say, that it is one of the results 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." Thus any respect that is shown by the treaty-making power to " reserved powers " of the states is merely by virtue of an under- standing of the Constitution. In fact such respect has often been shown and it was thus to safeguard the interests of the states 9'^ For supremacy of treaty power over state powers : Anderson, C, Am. Jl. Int. Law, i: 636; Burr, Treaty Making Power of U. S., 1912 ; Butler, The Treaty Making Power of the U. S., 1902; Calhoun, Discourse, Works, ed. 1853, i : 202 ; Elliot's Debates, 4 : 463 ; Corwin, National Supremacy, 1913 ; Crandall, Treaties, their Making and Enforcement, 1916; Devlin, Treaty Power under the Constitution of U. S., San Francisco, 1908; Elliott, E. C, The Treaty Making Power, with reference to the Re- served Powers of the States, Case and Comment, 22: jy (1913) ; Hall, J. P., State Interference with the Enforcement of Treaties, Proc. Acad. Pol. Set., 7: 24; Livingston, Sec. of State, Wharton, 2: 67; Moore, J. B., Pol. Sci. Quar., 32: 320; Pomeroy, Introduction to the Constitutional Law of U. S., 9th ed., 1886, sec. 674; Root, Am. Jl. Int. Law, i: 273; Story, Commentaries on the Constitution ; Willoughby, W. W., Constitutional Law of U. S., 2 vols., 1910, Against supremacy of treaty power over state powers : Hayden, Am. Hist. Rev., 22: 566 (takes a historical view showing that the political check has sometimes preserved states' rights from adverse treaties) ; Jefferson. Manual of Parliamentary Practice, p. no; Mikell, University of Pa. Law Rev., 57, 435, 528; Tucker, H. S., Limitations on the Treaty Making Power under the Constitution of U. S., Boston, 1915; Tucker, J. R., Constitution of U. S., 2 vols., 1899. «s People V. Gerke, 5 Cal. 381 (1855). PRIVATE RIGHTS AND STATES' RIGHTS. 189 that the Senate was made such an important element in treaty- making.^^ This function the Senate has recognized, and, especially in the period before the Civil War, has frequently exercised a veto upon treaties thought to violate states' rights, or redrafted them so as to permit of state consent before the treaty became effective within its territory."" The practice of the Senate, the opinions of statesmen and dicta of the courts indicate that, except for the most cogent reasons, the treaty power ought to exercise its powers in such way as not to interfere with the control by the states of their own land, natural resources, and public services and not to interfere unnecessarily with the enforcement by the state of its own policy with reference to the protection of public safety, health, morals and economic welfare. 51. Effect upon Power to Make Decisions upon National Policy. States' Rights have not interfered with the making and carrying out of national decisions. Such decisions as the declaration of war, recognition of foreign states and governments, annexation of territory, etc., being of external application, have never been alleged to conflict with states' rights, unless the protests of the Hartford Convention against the War of 1812 be so considered. ^°^ The exercise of war powers, has conflicted with alleged states' reserved powers. Thus the drafting of armies was attacked as an impair- ment of the states' reserved power over its militia. ^°- Though the 9^ Ralston Hayden, The States' Rights Doctrine and the Treaty Making Power, Am. Hist. Rev., 22: 56; Corwin, National Supremacy, 141, 302. The fathers seem to have considered the Senate a special bulwark of states' rights, Farrand, op. cit., 2: 393; The Federalist, No. 64 (Jay), Ford ed., p. 432; Elliot, Debates, 4: 137. ^°o Hayden, op. cit., Am. Hist. Rev., 22: 56. For example see supra, note 79. 101 See proposed amendment to the Constitution requiring two-thirds vote of both houses to declare war, MacDonald, Select Documents in American History, N. Y., 1898, p. 206. ^02 Constitution, Art. I, sec. 8, cl. 15, 16. The national government can call forth the militia, as such, only " to execute the laws of the Union, sup- press insurrections and repel invasions," which does not permit of use out- side the territory (Wickersham, Att. Gen., 29 Op. 322), but under present law the militia are not used as such but are reenlisted in the national army when called out for national service. (Act June 3, 1916, 39 stat. 200, 211, sees. 70, 71, 73, III.) The power to raise armies (Constitution, I, sec. 8, 190 WRIGHT— LIMITATIONS UPON NATIONAL POWERS, contention at first received some judicial support in Civil War cases/°^ it was thoroughly demolished during the World War.^°* Apparently the only legal limitation upon the exercise of powers in foreign relations imposed by states' rights is that upon the power to cede state territory by treaty, which is acknowl- edged to evaporate before necessity. CHAPTER VII. Limitations upon National Powers : The Separation of Powers. 52. Nature of the Theory. The doctrine of separation of powers means that the legislative, executive, and judicial powers of government ought to be exercised by separate and independent departments. " It is also essential," says tlie Supreme Court, " to the successful work- ing of the system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no others." ^ The doctrine is implied by three clauses of the Constitution: " All legislative power herein granted shall be vested in a Congress of the United States." (Art. I, sec. i.) " The executive power shall be vested in a President of the United States of America." (Art. II, sec. i.) "The judicial power of the United States shall be vested in one Su- preme Court and in such inferior courts as the Congress may from time to time ordain and establish." (Art. Ill, sec. i.) cl. 12) is wholly distinct from the power over the militia and is not limited by the state's right to its militia. (Selective Draft Cases. 245 U. S. 366.) See Wright, Military Administration, Report of Efficiency and Economy Committee of Illinois, 191S, p. 903. 103 Kneedler v. Lane, 45 Pa. 238 (1863), Thayer, Cases on Constitutional Law, p. 2316. Lowrie, J., supported by Justices Woodward and Thompson, with Justices Strong and Read in dissent, granted a preliminary injunction on November 9, 1863. On December 12, 1863, Justice Lowrie's term ex- pired. He was succeeded by Justice Agnew, who sided with the two former dissenting justices, thus making Justice Strong's opinion dissolving the injunction the opinion of the court. nonselective Draft Cases, 245 U. S. 366; Sutherland, op. cit., p. 108. n Kilbourn v. Thompson, 103 U. .S. 168. On impossibility of so defining the functions of the departments as to make an actually complete separation, see Goodnow, The Principles of the Administrative Law of \J. S., N. Y., 1905, p. 26, and Willoughby, op. cit., p. 1262. WRIGHT— LIMITATIONS UPOT^ NATIONAL POWERS. 191 It will be noticed that the Congress is vested merely with "all legislative powers herein granted " while the President and the courts are vested respectively with " the executive power " and "the judicial power of the United States." The mere fact that a power is legislative in character does not, therefore, indicate its possession by Congress unless it is specifically granted to that body elsewhere in the Constitution. It has been urged, however, that all powers by nature executive belong inherently to the Pres- ident^ and all powers by nature judicial to the courts.^ Doubtless certain inherent executive -and judicial powers and privileges, nec- essary for the functioning of the organ, and for the preservation of its independence, such as the executive power to remove officials* and the judicial power to punish for contempts,^ exist aside from express delegation, but so also do inherent legislative powers, such as the power to subpoena witnesses necessary to give information essential to intelligent legislation.*' The general vesting of executive and judicial power cannot, therefore, be made the basis of powers other than essentially inherent power. To do so would render the subsequent express delegations of power to the President and the courts useless verbiage. Expressis unius exclusis alteris applies to the executive and judicial powers as well as the legis- lative.'^ Aside, therefore, from its assurance of certain necessary and inherent powers to each department, the theory of separation of 2 Hamilton, " Pacificus " Letter, June 29, 1793, and Roosevelt, Auto- biography, pp. 388-389, quoted, Corwin, The President's Control of Foreign Relations, pp. 11, 168. See also infra, sec. 92. 3 Kansas v. Colorado, 206 U. S. 46, 81-83, Corwin, ot>. cit., p. 31. * Parsons v. U. S., 167 U. S. 324; Willoughby, op. cit., pp. 1181-1184, and Congressional debate of 1789 on the question there cited. Infra, sec. 230. The removal power is not, however, regarded as an inherent executive power in the states. Goodnow, op. cit., p; 311. 5/h re Debs, 158 U. S. 595; Carter v. Va.. 96 Va. 791; Willoughby, op. cit., pp. 1268-1270; J. P. Hall, Constitutional Law, p. 19. 6 Anderson v. Dunn, 6 Wheat. 204; Kilbourn v. Thompson, 103 U. S. 168; In re Chapman, 166 U. S. 661; Willoughby, op. cit., p. 1272. ■'See Taft, Our Chief Magistrate, pp. y:^, 140, 144; Senate debate of 1831 quoted Corwin, op. cit., p. 59; and infra, sec. 92. 192 WRIGHT— LIMITATIONS UPON NATIONAL POWERS. power is a limitation rather than a source of power for each de- partment. We may express the doctrine in three principles.^ 53. Protection of Independence of Departments. Each department is endowed with such rights, privileges and inherent powers as will assure its independence of the others.^ Thus members of Congress are immune from arrest during the session, each house is given exclusive authority to judge the quali- fications of its own members, to make its own rules of procedure, to discipline and expel its own members and to subpoena witness and commit for contempt when necessary for performing its legislative functions.^'' The President is immune from judicial process except trial of impeachment and holds himself entitled to exclusive control of the personnel of the national civil and military service through the power to commission and remove officials. ^^ The Federal Justices are assured permanence of tenure and com- pensation and the courts hold themselves to enjoy certain inherent privileges such as the power to commit for contempt and perhaps to control admissions to the bar and rules of practice. ^^ These rights, privileges and inherent powers cannot be impaired by action of the organ itself or by that of other organs. 54. Protection of Delegated Powers of Departments. Each department is entitled to exercise the powers delegated to it by the Constitution. Two interpretations of this guarantee of quite divergent effect must be distinguished. Thus it is generally recognized that one organ cannot, unless the Constitution expressly provides otherwise, take away a power specifically or impliedly ^ Infra, sees. 53-55- 9 Goodnow, op. cit., p. 38. 10 Constitution, I, sees. S, 6, and supra, note 6. 11 Mississippi v. Johnson, 4 Wall. 475; Willoughby, op. cit., 1300-1304; Constitution, II, sec. 3, and supra, note 4. ^2 Constitution, III, sec. i, supra, note 5. Illinois and Pennsylvania hold the setting of standards for admission to the bar is an inherent judicial power (In re Day, 181 III, 73, In re Splane, 123 Pa. 527), while New York and North Carolina hold the contrary (Matter of Cooper, 22 N. Y. 67, Re applicants for license, 143 N. C. i). Indiana holds that statutes cannot lower the standard set by court rules of procedure. (Epstein v. State, 128 N. F. 353, Ind. 1920, and note in Minn. Law Rev., 5 : 73, Dec, 1920.) WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 193 delegated to another organ or give away a power so delegated to itself. ^^ But it is sometimes contended, that in addition, one organ cannot so exercise its own powers as to limit the discretion of another organ or of itself in the future exercise of its powers. These two interpretations are very different and much misconcep- tion has arisen from their confusion. Thus for the treaty power to provide that in defined circumstances the United States would automatically be at war, would be a clear invasion of the power of Congress to declare war. On the other hand for the treaty power to provide that in defined circumstances the United States would declare war, would not invade the power of Congress but would merely limit its discretion in the future exercise of this power. In certain circumstances the practical efifect might be the same, but the legal difiference would nevertheless exist. It appears that constitutional law merely guarantees to each organ continued pos- session of its delegated powers. The degree of discretion which the organ may actually enjoy in exercising these powers depends largely upon constitutional understandings. 55. Prohibition upon Exercise of Uncharacteristic Power by Any Department. Each department is prohibited from "exercising powers (not inherent or expressly delegated) which from their essential nature do not fall within its division of governmental functions}^ Thus Congress cannot exercise such judicial powers as punishing for contempt unless necessary for performing its legislative functions,^' nor such executive powers as directing the detailed movement of troops^® or appointing ofificers.^^ The courts cannot exercise such ^3 Legislative power cannot be delegated even by the legislature itself, but the Constitution gives considerable power to Congress over the deter- mination of executive and judicial competence. Infra, sec. 60. But see Goodnow, op. cit., p. 41. 1* Willoughby, op. cit., p. 1263. ^5 Kilbourn v. Thompson, 103 U. S. 168. Nor can Congress exercise ju- dicial power by deciding specific cases involving private rights, Willoughby, op. cit., p. 1264. 1^ Ex parte Milligan, 4 Wall. 2, Willoughby, op. cit., p. 1207. 1'^ Constitution, II, sec. 2. Congress, however, has the inherent power to appoint subordinate officers necessary for the conduct of its internal busi- ness, Goodnow, op. cit., p. 38. 194 WRIGHT— LIMITATIONS UPON NATIONAL POWERS. executive powers as the giving of advisory opinions^^ or the making of decisions which are reviewable by executive or legislative officers/** The theory has been most difficult to apply as a restric- tion upon the executive because methods closely approaching a judicial and a legislative character often seem essential to the per- formance of executive duties. Though the theory that the legis- lature cannot delegate its power exists, the courts actually give the force of law to executive orders and regulations issued under authority of statute.^" This is justified by the theory that the ordinances are not legislation but merely the application of a policy determined by Congress in the delegating act. So also executive boards and commissions are permitted to proceed as courts and give decisions of a definitive character in certain types of cases.*^ The almost complete control over the organization and jurisdiction of federal courts given by the Constitution to Congress^^ makes any attempt by the courts to prevent the vesting of judicial func- tions in administrative bodies virtually impossible.^^ A. Effect on the Power to Meet International Responsibilities. 56. The Government as a Whole Competent to Meet Responsibil- ities. The doctrine of separation of powers does not impose any limitation upon the power of the United States to meet its inter- national responsibilities. International law and treaty provisions have very seldom directed the instrumentality through which re- sponsibilities shall be met. The responsibility rests on the nation and it can ordinarily determine its own instrumentality for per- formance. Consequently if any organ of the government has power to meet a particular responsibility, or to provide for meeting 1^ See Thayer, Cases of Const. Law, i : 175, and Willoughby, op. cit., p. 13- 19 Hayburn's Case, 2 Dall. 409; Gordon v. U. S., 2 Wall. 561 ; Willoughby, op. cit., p. 1275. 20 Field V. Clark, 143 U. S. 649; Goodnow, op. cit., pp. 42, 85. 21 U. S. V. Ju Toy, 198 U. S. 253; Willoughby, op. cit., p. 1278, et seq. 22 Constitution, I, sec. 8, cl. 9; III, sec. i, sec. 2, cl. 2, seems to give Congress complete control over the courts except the original jurisdiction of the Supreme Court. Ex Parte McCardle, 7 Wall. 506. 23 Willoughby, op. cit., p. 1277. WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 195 it, we may be sure the government as a whole has the power. Treaties have occasionally required that responsibilities be met through a particular instrumentality, as that certain controversies be submitted to an international tribunal, or that the compromis of arbitrations be made by the President with advice and consent of the Senate.^* Such reference to domestic organs has usually been declaratory of the Constitution, and has been inserted out of excess of caution to give notice to the foreign government of constitutional steps which must be taken, or by insistence of one department of the government to prevent anticipated usurpations by another. If, however, a treaty required that certain acts be performed by a particular organ, which, under the theory of sep- aration of powers, could not exercise such a power, that clause of the treaty could not be executed by the United* States. Such a treaty clause, however, would be unconstitutional from the start. The question would relate, therefore, to the power to make treaties rather than to the power to meet international responsibilities.^^ 57. Power of the President to Meet International Responsibilities. Although the doctrine of separation of powers does not legally limit the power of the government to meet its responsibilities, it often throws practical difificulties in the way of prompt action. Congress is by nature slow moving but often under the constitu- tional distribution of powers it alone has power to meet certain international responsibilities. Were the President and the courts vested with adequate authority to act, delay in the meeting of responsibilities might often be avoided. The President and courts cannot, under the doctrine which prohibits the delegation of legis- lative power be vested with such exclusive congressional powers as that to appropriate money and to declare war. Thus a prompt meeting of responsibilities requiring such acts depends upon con- gressional observance of the constitutional understanding which 2* See pecuniary claims convention with Latin American States, 1910, Charles, Treaties, 345; arbitration treaty with Great Britain, 1908, Art. V, Malloy, Treaties, p. 814. For other treaty provisions referring to specific organs see Wright, Columbia Latv Rev., 20: 123-4. 25 Supra, sees. 45, 46. PROC. AMER. PHIL. SOC., VOL. LX., N, MARCH 8, I922. 196 WRIGHT— LIMITATIONS UPON NATIONAL POWERS. enjoins all departments to exercise such powers as they have in order promptly to meet international responsibilities.^® Often, however, it is within the power of Congress to vest the President and courts by general law with adequate power to meet responsibilities, and a mass of legislation with this purpose has grown up dealing especially with the enforcement of neutrality, the protection of diplomatic officers, the protection of foreign securities, the suppression of piracy, the extradition of criminals, and the enforcement of many treaties such as that for supressing the slave trade and for the protection of migratory birds. No general law has as yet been passed giving the President and courts adequate power to protect the rights of resident aliens guaranteed by international law and treaty, though Congress, undoubtedly, has power to pass such laws.^^ B. Effect on the Power to Make International Agreements. 58. Limitations upon the Government as a Whole. In considering limitations derived from the separation of powers, upon the power of the national government to make inter- national agreements, we need consider only the limitations upon the full treaty-making power. Whatever independent power the President may enjoy in making interfiational agreements is a fortiori subject to the same limitations. These limitations exist by virtue of the constitutional prerogatives of Congress, of the courts and of the President. 59. Limitations Derived from Powers of Congress. " The treaty making power," said Calhoun, " is limited by such provisions of the Constitution as direct certain acts to be done in a particular way, and which prohibit the contrary, of which a striking example is to be found in that which declares that ' no money shall be drawn from the Treasury but in consequence of appropriations to be made by law.' " ^s Undoubtedly, the treaty power is prohibited from depriving organs of the government of rights, privileges or powers inherent or delegated by the Constitution, or from giving them powers not 26 Infra, sec. 258. 27 Infra, sec. 120. 28 Works, i: 203; Moore, Digest', 5: 166. WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 197 appropriate to their nature. There does not appear to have ever been a treaty attempting to deprive Congress of a delegated power or to confer upon it power of a non-legislative nature. It is believed that a treaty declaring that war should automatically exist in certain circumstances would be an unconstitutional deprivation of Congress's power to declare war,-" and that a treaty giving Congress power to appoint an officer of the United States, as for instance a representative in an international body, would be an unconstitutional delegation to Congress of power not of a legis- lative character.^" Jefferson stated among " exeptions " from the treaty-making power: "those subjects of legislation in which it gave a participa- tion to the House of Representatives." He noticed, however, that this exception " would leave very little matter for the treaty power to work on." ^^ Practice does not sustain Jefferson's contention. Most treaties have dealt with subjects within the delegated powers of Congress and have been held valid. ^^ Congress has questioned the validity of treaties requiring an appropriation, notably the Jay 29 See Taft, address before League to Enforce Peace, May 26, 1916, Enforced Peace, p. 64, and Hughes address, May 28, 1917, Proc. Acad. Pol. ScL, vol. 7, No. 2, p. 14, quoted in Am. Jl. Int. Law, 12: 75-76. 30 The exclusive mode of making appointments described in the Con- stitution, II, sec. 2, does not include appointments by Congress. See also Goodnow, op. cit., p. 39; Willoughby, op. cit., p. 1180. 31 Jefferson, Manual of Pari. Prac, sec. 52, printed in Senate rules, 1913; H. of R. Rules, 1914; and Moore, Digest, 5: 162. 32 Crandall, op. cit., p. 182; Wright, Am. Jl. Int. Law, 12: 93. "The principle of interpretation on which the doubt is suggested appears to be radically unsound and to belong in the category of notions which tend to bring constitutional law into disrepute. That the United States cannot in- ternationally agree to forego the exercise of any power which the Constitu- tion has conferred on Congress, or other department of government, is a supposition contradicted by every exercise of the treaty-making power since the government came into existence. When we reflect upon the number and extent of the powers conferred upon the national govrnment, and upon their distribution and the methods prescribed for their exercise, it is obvious that the attempt to act upon such a supposition would exclude the United States from any part in the progress of the world through the amelioration of law and practice by international action." Moore, Principles of American Diplomacy, 1918, p. 65. 198 WRIGHT— LIMITATIONS UPON NATIONAL POWERS. treaty of 1794^^ and the Alaska Purchase treaty of 1867.^* The Senate refused consent to a commercial treaty with the German states in 1844 because of " want of constitutional competency." ^^ President Jefferson himself seriously questioned .the constitutionality of the Louisiana annexation treaty,^® and authorities have ques- tioned the constitutionality of treaties making certain acts crimes,'^ treaties of guarantee which might require war for fulfillment,^* and treaties forbidding privateering.^'' But treaties on all these subjects and in fact most other subjects within the delegated powers of Congress have been made, regularly acted upon and applied by the courts without question of constitutionality. " If this be the true view of the treaty-making power," said Calhoun with reference to the Senate rejection of the German treaty in 1844, " it may be truly said that its exercise has been one continual series of habitual and uninterrupted infringements of the Constitution. From the beginning and throughout the whole existence of the Federal Government it has been exercised constantly on commerce, navigation, and other delegated powers." *° Treaties of this kind often require action by Congress for execution and the degree of discretion Congress may exercise in -executing them is determined by constitutional understandings, but the treaty is undoubtedly valid. It does not deprive Congress of power but only of its full discretion in the exercise of power. '■60. The Delegation of Legislative Power. As an implication from the doctrine of separation of powers it IS recognized that legislative power cannot be delegated.*^ The 33 Wharton, Digest, 2: 19; Moore, Digest, 5: 224; Crandall, op. cit., p. 165; Wright, Am. Jl. Int. Law, 12: 66. 3* Moore, Digest, 5: 226-228; Crandall, op. cit., p. 175. ■''5 Crandall, op. cit., pp. 189-190; Wright, Am. Jl. Int. Law, 12: 68. 36 Crandall, op. cit., p. 172; Moore, Digest, 5: 225; Wright, Am. Jl. Int. Law, 12: 69; Adams, History of U. S., 2: 83. 37 For objection of Secretary of State Marcy to treaties making priva- teering a crime see Moore, Digest, 2: 978; 5: 169; Wright, Am. Jl. Int. Law, 12: 79-80; Crandall, op. cit., p. 242. 38 For objection of W. J. Bryan and others see Wright, Ant. Jl. Int. Law, 12: 73. 3" Black, Constitutional Law, 1910, p. 274; Moore, Principles of Ameri- can Diplomacy, p. 64. 40 Moore, Digest, 5: 164; Willoughby, op. cit., p. 491; Wright, Am. Jl. Int. Lazu, 12: 68. 41 Field z: Clark, 143 U- S. 649; Willoughby, op. cit., pp. 1317-1332. WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 199 Constitution gives to Congress and to the treaty-making power considerable authority to designate or even create organs for the exercise of judicial and executive power*- and such provision is not considered incompatible with the theory of separation of powers, but no organs other than those specifically empowered thereto by the Constitution can be authorized to exercise legislative power. " The Legislative," said John Locke, " neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." *^ However, this does not mean that all powers which the Legis- lature might exercise are incapable of delegation. It is well established that Congress can delegate to the President or other authority power to decide when** and where*^ the conditions exist which are to bring its enacted policy into operation, and the method*** by which such a policy is to be administered. The legis- lative power, which cannot be delegated, is not confined to the making of permanent laws but includes such political powers of Congress as appropriating money and declaring war.*'' Further- more, "legislative power" is not confined to the powers of Congress but includes political powers given by the Constitution to other organs. Thus the treaty-making power exercises legislative power which cannot be delegated since its acts, by Article VI, constitute 42 Congress has power to create inferior federal courts (Constitution, I, sec. 8, cl. 9; III, sec. i), to regulate their jurisdiction and the appellate juris- diction of the Supreme Court (III, sec. 2, cl. 2), to create "offices" (II, sec. 2, cl. 2), and to create and regulate a military and naval establishment (I, sec. 8, cl. 12-16). See also McCulloch v. Md., 4 Wheat. 316, holding that Congress may create other instrumentalities, necessary and proper for carrying out constitutional powers. The treaty power may provide for courts. In re Ross, 140 U. S. 453; The Konigin Luise, 184 Fed. 170 (1910) ; Wright, Am. Jl. Int. Law, 12 : 70. See also in^ra, sees. 225, 226. 43 Treatise on Civil Government, Works, vol. 5, sec. 142, quoted Cooley, Constitutional Limitations, 6th ed., p. 137. 44 Martin v. Mott, 12 Wheat. 19; Field v. Clark. 143 U. S. 649 (1892). 45 Dalby v. Wolf, 14 Iowa 228 (1862). Legislative power may be dele- gated to local bodies. State v. Noyes, 30 N. H. 279. 46 Morrill v. Jones, 106 U. S. 466; Ex Parte Killock, 165 U. S. 526. 47 The phraseology of the clauses conferring these powers indicates that they cannot be delegated. Constitution, I, sec. 8, cl. 2; sec. 9, cl. 7. 200 WRIGHT— LIMITATIONS UPON NATIONAL POWERS. " the supreme law of the land " and this, nothwithstanding the apparent contradiction in the statement of Article I, section i, that " All Legislative power herein granted shall be vested in a Congress of the United States." "^ Thus " legislative power " includes the power to make general laws and political decisions in whatever organ vested by the Con- stitution and does not include the executive power of carrying out policies and enforcing decisions, nor the judicial power of deciding questions of fact and applying law to particular cases. 6i. Congressional Delegation of Poiuer to Make International Agreements, Although Congress has no power to make treaties, it has power to make laws on many subjects which may be appropriate for inter- national agreement. Within this field it has delegated power to the President** to make international agreements in pursuance of a policy outlined by Legislation and such delegation has been sus- tained by the courts. Thus by an act of 1872^" Congress provided that " for the purpose of making better postal arrangements with foreign countries," the postmaster-general, acting under the advice of the President, might '' negotiate and conclude postal treaties." The United States has become a party to the Universal Postal Union Convention under this authority. ^^ Similar provision for the conclusion of patent, copyright and trademark agreements have been made.^^ 48 The principle that legislative power cannot be delegated has always been assumed to be applicable to the treaty power. See Senate For. Rel. Committee. Rept. 62A Cong., ist sess., S. ^Doc. 98, p. 6, and remarks of Senator Walsh, Mont., Cong. Rec, 58: 8609, Nov. 8, 1919, quoted in Am. Jl. Int. Law. 12: 91, and Col. Laiv Rev., 20: 133. 4^ A possible encroachment upon the Senate's prerogative in treaty-making is considered infra, sees. 159, 162. s" U. S. Rev. Stat., sec. 398, Compiled Stat., sec. 587, founded on Act of 1792, see Crandall, op. cit., p. 131. 51 Moore, Digest, 5 : 870. 52 Patents Act, March 3, 1903, 22 Stat. 1225, Rev. Stat., sec. 4887. Copy- rights Acts, March 3, 1891, 26 Stat, mo, Moore, Digest, 2: 45, and March 4, 1909. sec. 8, 35 Stat. 1077, Comp. Stat., sec. 9220, Crandall, op. cit., p. 127. Trademarks Act, March 3, 1881, 21 Stat. 502; Feb. 20, 1905, 33 Stat. 724, as amended in 1906 and 1909, Comp. Stat., sec. 9485. In the Trademark WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 201 Under the McKinley Tariff Act of 1890 authority was given the President to suspend by proclamation the free entry of speci- fied articles from countries which did not give reciprocity. Ten reciprocity agreements were negotiated by the President through exchange of notes which were made effective by proclamation and remained so until repeal of the McKinley Act in 1894.°^ In Field V. Clark^* the Supreme Court held this provision of the McKinley Act valid since by it Congress had not delegated legislative power but merely power to carry out the policy outlined by Congress in the Act. The Dingley Tariff of 1897 and the Payne- Aldrich Tariff of 1909 contained similar provisions for reciprocity which have been carried out by a number of agreements. ^^ Similar provision for reciprocity with Canada made in an act of 191 1 has never been carried out because of the unwillingness of Canada to act.^'' We may conclude that power to make agreements in pursuance of enacted legislative policy is not " legislative power " and may be delegated. Cases (100 U. S. 82, 99) the Supreme Court held Congress incompetent to pass and enforce general trademarks laws but implied that such laws if confined to interstate and foreign commerce or to the protection of treaty rights would be valid. In most cases trademark agreements have been by treaty (See Secretary of State Hay to the Secretary of the Interior, Nov. 4, 1898, Moore, Digest, 2: 37), but the statute provided for the regis- tration of trademarks used in interstate or foreign commerce by persons residing in foreign countries which, " by treaty, convention or law, appHes such privileges to citizens of the United States " (sec. 3, Comp. Stat., sec. 9489). Apparently the President might independently recognize the extension of laws to American citizens by foreign nations, entitling their citizens to the privileges of the act, but in fact, such recognition seems always to have been by treaty, except with reference to reciprocal protection in consular courts in China and Morocco. See Crandall, op. cit., p. 130; Willoughby, op. cit., p. 477. 53 U. S. Tariff Commission, Reciprocity and Commercial Treaties, 1919, pp. 27, 153; Crandall, op. cit., p. 122; Willoughby, op. cit., pp. 478. See also Gresham, Secretary of State, to Mr. Mendonga, Brazilian Minister, Oct. 26, 1894, Moore, Digest, 5 : 359-362. 5* Field V. Clark, 143 U. S. 649 (1892). 55 U. S. Tariff Commission, op. cit., pp. 29, 32, 205, 271 ; Crandall, op. cit., p. 123; Fish, Am. Diplomacy, p. 471. 56 Act July 26, 191 1, 27 Stat. 4, Comp. Stat., sec. 5326; Crandall, op. cit., p. 125; U. S. Tariff Commission, op. cit., pp. 36-38, 371. 202 WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 62. Treaty Delegations of Power to National Organs. Treaties have on occasion delegated power to both national and international organs. These provisions have often been attacked on the ground that " legislative power " has been unconstitutionally delegated. The Cuban treaty of 1903, Article VII, authorized the President to acquire naval bases in Cuba and in accord therewith President Roosevelt acquired Guantanamo by executive agreement.^^ Here the President was clearly carrying out the policy laid down by the treaty and the case was clearly within the precedents of con- gressional delegation of power to make international agreements. One of the proposed Senate reservations to the treaty of Ver- sailles provided for denunciation of the League of Nations Covenant on two years, notice by " concurrent resolution " of Congress. ^^ The only constitutional authorities for terminating treaties are Congress by an act signed by the President or passed over his veto, the treaty-making power and possibly the President alone.^* Clearly the termination of a law, such as a treaty, is an exercise of legislative power and cannot be delegated to any authority other than those specified for that purpose by the Constitution.^" 57 The provision of the treaty was also contained in an act of Congress of March 2, 1901 (the Piatt Amendment), and in the Cuban Constitution. An agreement' to make the lease was signed February 16, 1903, and the lease itself was signed July 2, 1903, while the treaty, although signed May 22, 1903, was not proclaimed until July 2, 1904. Thus the lease was in reality authorized by the act of Congress rather than by the treaty. See Malloy, Treaties, pp. 358-363. For other examples see Crandall, op. cit., p. 117. 58 Lodge Reservation No. i, in form voted on by Senate, Nov. 19, 1919, and March 19, 1920. For text of Lodge Reservations see Cong. Rec, Nov. 19, 1919, 58: 9289; March 19, 1919, 59: 4915; The League of Nations, World Peace Foundation, Boston, III, No. 4, pp. 166, 182, and note. Col. Lazv Rev., 20: 156. 5» Jefferson, Manual, sec. 52, Senate Rules, 1913, p. 150; House Rules, 1914, sec. 592; Hinds, Precedents, 5: 6270; President Hayes, Message, March, 1879, Richardson, Messages, 7: 519; Sen. Rept., No. 97, 34th Cong., ist Sess. ; Taft, Our Chief Magistrate, p. 117; Willoughby, o/>. cit., p. 518; Crandall, op. cit., pp. 401-462; Wright, Col. Lazv Rev., 20: 129. See also infra, sees. 181-187. 60 The Constitution provides that " Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States ; and before the same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 203 It was contended by the President and in the Senate, the writer believes correctly, that delegation of this power to a mere majority of the two houses of Congress without the President's approval would be an unconstitutional delegation of legislative power.*^^ An extended controversy has arisen over the delegation of power to the President by general arbitration treaties, to make the comprornis or instrument submitting specific cases to arbitration. The I Hague Convention of 1899, as also that of 1907, provided a panel of arbitrators, a method for selecting a court and a pro- cedure for arbitrating cases. By Article 16, the parties including the United States recognized arbitration " as the most efficacious and at the same time the most equitable method of deciding contro- versies which have not been settled by diplomatic methods." Under these provisions, in 1903, President Roosevelt submitted the Pious Fund claim against Mexico to the Hague Tribunal, without consulting the Senate. ^^ Opinion has dififered as to whether the Hague Convention delegated this power. Simeon E. Baldwin has said : ^* '■ The Hague Convention when ratified by the Senate, became thus a standing warrant, or, so to speak, a power of attorney, from the United States to the President, to submit such international controversies as he might think fit to the uhimate decision of the International Court of Arbitration." Ex-Secretary of State Foster, however, took a contrary view : ®* " I apprehend that should our government decide to refer any dispute with a foreign government to the Hague Tribunal, President Roosevelt, or whoever should succeed him, would enter into a convention with the foreign 61 " A statute or a treaty might end upon the occurrence of a fortuitous event or upon the determination of a certain fact or of a certain condition by a certain officer, he having no discretion on the subject at all; but when it becomes a question of the exercise of his judgment or his discretion about whether the law should remain in force or whether it should be repealed, considering the good of the country, that would be an unlawful delegation of legislative power." Senator Walsh, Mont., Cong. Rec, Nov. 8, 1919, 58: 8609. " I doubt whether the President can be deprived of his veto power under the Constitution even with his own consent." President Wilson, letter to Senator Hitchcock, Jan. 26, 1920. ^2 Willoughby, op. cit., p. 475. 63 Yale Reznew, 9: 415, quoted, Willoughby, op. cit., p. 476. ^^ Yale Latv Jl., 11: 76, quoted Willoughby, loc. cit. 204 WRIGHT— LIMITATIONS UPON NATIONAL POWERS. government, very carefully setting forth the question to be arbitrated, and submit that convention to the Senate for its advice and consent. If I read the Constitution of the United States and the Hague Convention aright, such would be the only course permissible by those instruments." It may be observed that since the President has power under the Constitution to settle claims of the United States against foreign countries*'^ he unquestionably had power to submit the Pious Fund claim to arbitration aside from the Hague Convention or from the arbitration provision of the Mexican treaty of 1848 in force in 1903. '"^ Thus claims against Venezuela were submitted *to the Hague Tribunal in 1903 and 1909 by executive protocols.®^ The North Atlantic Fisheries arbitration with Great Britain, the remain- ing Hague Case to which the United States has been a party, was, however, submitted by a treaty,''^ though in this case treaty sub- mission had been expressly required by the general arbitration treaty with Great Britain of 1908,*^^ and the United States had made express reservation to the Hague Convention of 1907 requiring that submission to the Hague Court be by " general or special treaties of arbitration." ^'^ The same question was raised with reference to the proposed Hay arbitration treaties of 1905, providing for arbitration of " dif- ferences " of a " legal nature " which do not affect the " vital interests, the independence or the honor of the two contracting states and do not concern the interests of third parties." These treaties required conclusion of a " special agreement " defining the matter in dispute, the powers of the arbitrators and the procedure. The Senate was willing to consent only if the word "treaty" was substituted for " agreement " and President Roosevelt refused to submit the treaties thus amended thinking that a general arbitration treaty was valueless if each specific submission required conclusion "5 Infra, sec. 171. 66 Art. 21, Malloy, Treaties, p. 1117. 67 Ibid., pp. 1870, 1889. 68 Ibid., p. 835. 69 Art. II, Ibid., p. 814. ■^0 Ibid., p. 2247. See also Scott, ed., Reports of the Hague Conferences, pp. xxvii, 903. WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 205 of a " special treaty." '^ In 1908, however, Secretary Root con- cluded many treaties substantially of the form of the Hay treaties with the Senate amendment.'^^ Aside from the question of policy, it seems that the Hay treaties in their original form would not amount to an unconstitutional delegation of legislative power." They merely authorize the President to carry out the policy of arbitrating certain classes of disputes laid down by the general treaty and are well within the decision of Field v. Clark. '^* 63. Treaty Delegation of Power to International Organs. Where treaties have delegated power to international bodies, constitutional questions have often been raised. The courts have sustained treaties submitting claims, boundary questions, etc., to international arbitration courts and have held that the decision of such a court is of the same legal weight in the United States as the treaty itself. Thus after the Bering Sea Arbitration Tribunal had held that American jurisdiction in Bering Sea terminated at the three mile hmit, the United States Circuit Court of Appeals refused to apply the acts of Congress for protecting the seal herds, to vessels engaged in sealing beyond that limit. "^ Where, however, treaties have provided for an international commission or court which shall decide whether or not a particular dispute is of a justiciable character as defined by the general treaty, doubt has been expressed in the Senate. The proposed international Prize Court Convention of 1907 with its attached protocol of 1910 provided that claims against the United States for defined types of prize decisions might be brought in the inter- national Prize Court by private individuals, and the court would itself decide whether the case was within the described classes i.e., ■^1 Willoughby, op. cit., pp. 473-475 ; Taft, The United States and Peace, 1914, p. 95 ; Sutherland, op. cit., p. 129. T2 As example see British treaty, Malloy, Treaties, p. 814. 73 Crandall. op. cit., p. 120; Willoughby, op. cit., p. 475; Taft, The United States and Peace, p. 95; Moore, Pol. Sci. Quarterly, 20: 403. 7* Field V. Clark, 143 U. S. 649 (1892). " U. S. V. La Ninfa, 75 Fed. 513. 206 WRIGHT— LIMITATIONS UPON NATIONAL POWERS. whether it had jurisdiction. This treaty and protocol, although never operative, were consented to by the Senate in 1911.''^ In 191 1 President Taft negotiated arbitration treaties with Great Britain and France providing for the arbitration of defined classes of cases and for decision by an international joint high commission upon the question of whether a specific dispute was within these classes. '^^ The Senate Foreign Relations Committee reported adversely on the latter provision : '^^ " This recommendation is made because there can be no question that, through the machinery of the joint commission, as provided in Articles II and III and with the last clause of Article III included, the Senate is de- prived of its constituent power to pass upon all questions involved in any treaty submitted to it in accordance with the Constitution. The committee believes that it would be a violation of the Constitution of the United States to confer upon an outside commission, powers which, under the Constitution, devolve upon the Senate. . . . To vest in an outside commission the power to say finally what the treaty means by its very general and indefinite language is to vest in that commission the power to make for us an entirely different treaty from that which we supposed ourselves to be making." The delegation of power here objected to was of the same sort as that to which exception had been taken in the Hay treaties of 1905. In the one case, however, delegation was to the Pres- ■^6 Charles, Treaties, p. 262. A constitutional objection of a different kind connected with this convention is considered, infra, sec. 64. The Hague Convention of 1907 provided in article 53 that the Permanent Court might arrange the conipromis on application of one party where the dispute is " covered by a general treaty of arbitration concluded or renewed after the present convention has come into, force," specifying subjects for compulsory arbitration; and where the dispute arises from contract debts due by one power to the nationals of another. (Malloy, Treaties, p. 2238.) The Senate consented to ratification of the treaty with a reservation to this article assert- ing that the United States " excludes from the competence of the permanent court the power to frame the ' conipromis ' required by general or special treaties of arbitration concluded or hereafter to be concluded by the United States, and further expressly declares that the ' compromis ' required by any treaty of arbitration to which the United States may be a party shall be settled only by agreement between the contracting parties, unless such treaty shall expressly provide otherwise." (Ibid., p. 2248, and Scott, ed., Reports of the Hague Conferences, introduction, p. xxvii.) 7^ These treaties though never ratified are printed in Charles, Treaties, pp. 380-389. ^8 62d Cong., 1st sess., S. Doc. 98, p. 6; Cong. Rec, 47: 3935. WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 207 ident, in the other to an international commission.'''^ Neither case seems to involve a delegation of legislative power, but rather of judicial power, to interpret the treaty. The minority report of the Senate Committee signed by Senators Root and CuUom pointed out that the majority view could "not be maintained except on the theory that all general treaties of arbitration " involve a like un- constitutional delegation of power, the only difference being that the treaties under consideration submitted " certain described classes " of cases to arbitration, instead of particular cases. The decision of the joint high commission on what questions are justiciable " is not delegating to a commission power to say what shall be arbitrated ; it is merely empowering the commission to find whether the particular case is one that the United States have said shall be arbitrated." ^° President Taft, Senator Sutherland, J. B. Moore, and other constitutional authorities have endorsed this opinion. ^^ A logical carrying out of the majority theory would seem to deny any power to conclude treaties in good faith, for all treaties require interpretation, and to say that the interpretations must always be according to the will of the existing treaty-making power of the United States, however that may differ from the intent of the original negotiators, is virtually to substitute political expediency for treaty obligation. Good faith would seem to require that the true intent of the instrument govern its application through its entire life, and it is hard to see where a more impartial determination of what this intent was could be obtained than in an international '^8 It may be noticed that the Taft treaties accepted the point upon which the Senate had insisted in 1905 and required that the " co)npromis " sub- mitting each case be a treaty consented to by the Senate, even after the Joint High Commission had given its decision. See next note. so Ihid., p. 9. This report was signed by Senators Root and Cullom. In a special minority report, Senator Burton pointed out that even after decision by the joint high commission the " couiprouiis" would go to the Senate. " In such case, as in every other case, it would be within the power of the Senate to refuse its advice and consent to the special agreement, but it would be contrary to its treaty obligation." Ibid., p. 12. See also Wright, Am. Jl. Int. Law, 12: 93, Col. Law Rev., 20: 133. 81 Taft, The United States and Peace, p. 113: Our Chief Magistrate, p. 107; Sutherland, op. cit., p. 132; Moore, Independent, Aug. 8, 191 1. 208 WRIGHT— LIMITATIONS UPON NATIONAL POWERS. tribunal. The common law doctrine that no one should be judge in his own case would seem as applicable to international as to private relations.*^ This particular question has not been raised in connection with the League of Nations Covenant because, according to Article XIII, disputes can be submitted to arbitration only by consent of the parties and in the United States this consent would be indicated by the treaty-making power in concluding the instrument of sub- mission.^^ Senator Knox and others have, however, in effect asserted that the powers conferred upon the Council and Assembly of the League of Nations are in part legislative, and hence in so far the treaty would be unconstitutional.^* It is believed that this criticism overlooks three important aspects of the Covenant, (i) "Decision at any meeting of the Assembly or of the Council (except where otherwise expressly provided) shall require the agreement of all the members of the League represented at the meeting," ^^ thus the United States would not be delegating legis- lative power any more than it has in participating in international conferences such as the Hague, Algeciras or Versailles Confer- ences. It will be noticed that it is not the agreement of the Amer- ican representative which is required but of the " member of the League," that is, of the United States itself, and as has been noticed the United States cannot be bound by any agreement unless the proper constitutional organ has acted. ^^ Thus if the decision was of a character which could only be made by the treaty-making power, the United States would not be bound until the Senate had consented. Apparently the only decisions, aside from questions of 82 See infra, sec. 139. S3 The scheme drafted by Mr. Root and others for the international court authorized by Article XIV of the Covenant would, however, raise the issue, since Article XXXIV provides : " In the event of a dispute as to whether a certain case is within any of the categories above mentioned, the matter shall be settled by the decision of the court." Am. Jl. Int. Law, Supp. 14: 379 (Oct., 1920). This was modified by the Assembly of the League of Nations in December, 1920, Ibid., 15: 264. s* Address in Senate, March i, 1919. 8^ Art. V. The United States is by the terms of the Covenant repre- sented on both the Council and the Assembly. 86 Stipra, sec. 24. WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 209 procedure,^' which by express exception might be made without consent of the United States, are to admit new members (Art. I) which requires two-thirds of the Assembly but which is clearly not an exercise of legislative power, and to make a report in a dispute likely to lead to a rupture, to which the United States is a party. (Art. XV.)®® This will be discussed presently. (2) The other consideration which seems to have been over- looked by critics of the Covenant is that no legislative or binding political power has been conferred upon the Council or Assembly. The powers of these bodies are limited to the giving of " advice " or the making of " proposals," " recommendations " or " reports," which even if unanimous are of binding efifect in only three cases.®* These three cases are: (a) The limits of armament once agreed upon by members " shall not be exceeded without the concurrence of the Council." (Art. VIII, sec. 4.) (b) If a country has vol- untarily accepted a mandate, and has neglected to fully define " the degree of authority, control or administration " which it is to exer- cise, the Council may " explicitly define " these powers in each case. (Art. XXII, sec. 8.) (c) A dispute likely to lead to a rupture 87 These may be settled by a majority vote (Art. V). Amendments to the Covenant, though requiring ratification by only a majority of the members represented in the Assembly, require ratification by all the members represented in the Council, thus always 'including the United States (Art. 26). 88 See Lowell, The Covenanter, N. Y., 1919, p. 81, and British Official Commentary, printed in Pollock, The League of Nations, London, 1920, p. 208. 8^ Lowell, The Covenanter, pp. 40, 80. Some doubt exists as to whether the '■ advice" which the Council may give as to the method of carrying out the guarantees of Article X is obligatory. Lowell (Ibid., p. 40) and Pollock (op. cit., p. 128) believe not, while the Official Swiss Commentary holds that for members that have assented to the " advice," if unanimous, it is obligatory. (League of Nations, World Peace Foundation, III, No. 3, p. 125.) So far as the "advice " extends merely to an interpretation of the meaning of the treaty, we are inclined to agree with the latter opinion (supra, sec. 35), which appears to be consonant with the interpretation of similar terms in article XVI by the Second Assembly of the League (see Report of International Block- ade Committee, Second Assembly Document No. 28, part II, and resolutions adopted October 4, 1921, Official Journal, Special Supp. No. 6, p. 25). 210 WRIGHT— LIMITATIONS UVON NATIONAL POWERS. must be submitted to the Council or Assembly and if no solution is reached the Council or Assembly make a report. " If a report by the Council is unanimously agreed to by the members thereof, other than the representatives of one or more of the parties to the dispute, the members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report." (Art. XV, sec. 6.) If the dispute is submitted to the Assembly it has the same effect " if concurred in by the Representatives of those Members of the League rep- lesented on the Council and by a majority of the other Members of the League, exclusive in each case of the Representatives of the parties to the dispute." (Art. XV, sec. lo.) Although binding decisions may be given in the first two cases by unanimous action of the Council, the power exercised would not be " legislative " but merely a carrying out of the policy already agreed upon in the treaties providing for disarmament or accept- ance of the mandatory. Decision on such a question clearly may be delegated. ^° In the third case which relates to the settlement of political controversies which the parties have not agreed to submit to arbitration, it will be observed that the decision even if unanimous with exception of the parties to the dispute is not strictly binding. If the United States were a party to the dispute it w^ould not be legally bound to follow the report, even if all other members of the Council or Assembly had signed it. Doubtless, however, there would be a practical compulsion, in view of the fact that it could get no members of the League as allies in case it went to war with the other party to the dispute.^^ (3) A third consideration which should be noticed is that the most discussed provisions of the Covenant such as Articles X, XII, and XVI do not delegate power at all. They are guarantees which leave to the members of the League discretion in deciding upon the method for carrying them out in concrete cases.**^ Of course the United States would have to follow constitutional provisions in 90 Supra, sec. 60. 91 See British Commentary, Pollock, op. cit., p. 212 ; Swiss Commentary, op. cit., p. 137- 92 Lowell, The Covenanter, p. 2>7- WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 211 doing so.^^ It does not appear that there is any unconstitutional delegation of legislative power in the League of Nations Cov- enant. 64. Limitations Derived from Powers of the Judiciary. The constitutionality of a treaty seems never to have been questioned on the ground that it was itself an exercise of judicial power though treaties or arbitrations based upon them have interpreted statutes and international law and the courts have followed such decisions.^* Nor is there any encroachment upon the judicial power when treaties vest judicial powers in bodies other than the supreme and inferior courts of the United States. Consular courts abroad and international courts founded on treaty do not exercise " the judicial power of the United States " in the meaning of Article III of the Constitution^^ and foreign con- sular courts in the United States for the trial of seamen of vessels of the consul's nationality have been held of " ministerial " rather than judicial character, though the grounds for this distinction is not apparent.^*' 93 W. H. Taft, The Covenanter, p. 60 et seq. See also Wright, Am. Jl. Int. Law, 12 : 75, and supra, sec. 59. 94 U. S. V. La Ninfa, 75 Fed. 513; Comegys v. Vasse, i Pet. 193 (1828) ; Meade v. U. S., 9 Wall. 691; Wright, Am. Jl. Int. Law,- 12: 85, and supra, note 75. 85 " The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein. . . . The Constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other." /n re Ross, 140 U. S. 453 (1890). Nor is the "Judicial power of the United States" exercised by congressional courts in the territories (Am. Ins. Co. v. Cater, i Pet. 511) ; nor by presidential courts organized in territory under military occupa- tion (Neeley v. Henkel, 180 U. S. 109) or in annexed territory under mili- tary government. (Cross z'. Harrison, 16 How. 164; Magoon, Reports, pp. 16, 30.) Such presidential courts may exercise local jurisdiction but may not be given an admiralty and prize jurisdiction. (Jecker v. Montgomery, 13 How. 498.) ''•'' Cushing, Att. Gen., 8 Op. 390, 1857. See also the Konigin Luise, 184 Fed. 170 (1910), and Wright, Am. Jl. Int. Law, 12: 71. I'ROC. AMER. PHIL., SOC. , VOL. LX., O, MAKCH 8, Jg22. 212 WRIGHT— LIMITATIONS UPON NATIONAL POWERS. A treaty depriving courts of any inherent right, privilege or power would, undoubtedly, be void,^^ though a treaty may exempt certain persons from the judicial power of subpoena"^ and need not provide security of tenure and compensation for the judges in consular and other courts it establishes, as they do not exercise the " judicial power of the United States." °^ Treaties cannot vest courts exercising " the judicial power of the United States " with non-judicial functions.^"" Thus doubt has been expressed whether treaties could provide for appeal from federal courts to an international tribunal, since with such a review by an authority not exercising " the judicial power of the United States " the original hearing by the federal court would be rendered non-judicial in character. Such an international tribunal could not not be endowed by Congress with the " judicial power of the United States " since its judges could not be assured the security of tenure and compensation required of courts exercising that power and the Supreme Court has expressly held that courts established by Congress in the territories and courts established abroad or in the United States by treaty do not exercise that power.^"^ In the case of Gordon v. United States the Supreme Court refused to hear appeals from the Court of Claims which would subsequently be reviewable by the Secretary of the Treasury, saying : ^°^ " The Supreme Court's jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty. . . . The award of execution is a part, and an essential part, of every judgment passed by a court exercising judicial power. It is no judgment in the legal sense of the term, without it. Without such an award judgment would be inoperative and nugatory, leav- ing the aggrieved party without a remedy. . . . Such is not the judicial power confided to this court, in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this act of Congress." 97 Infra, sec. 53. 9^ Dillon's case, supra, sec. 46. ^^ Supra, note 95. 100 Supra, sec. 55. i°i Supra, note 95. 102 Gordon v. U. S., 117 U. S. 697. WRIGHT— LIMITATIONS UPON N'ATIONAL POWERS. 213 The XII Hague Convention of 1907 proposed an International Prize Court with appellate jurisdiction in prize cases. Doubts as to its constitutionality were felt by Secretary Root, on the grounds of this case, and he instructed the American delegation to the London Naval Conference (designed to codify the law for this court) to propose a supplementary protocol, whereby, instead of subjecting decisions of the United States courts to appeal and possible re- versal in the International Prize Court, a direct claim might be brought there against the United States " in the form of an action in damages for the injury caused by the capture." ^'^^ This sug- gestion was adopted by the Naval Conference in a final protocol^"* and was ultimately incorporated in a protocol signed by all signa- tories of the original Prize Court Convention.^"^ " The (American) delegation remarked that for certain states the func- tioning of the International Prize Court is not compatible with that of the Constitution. The decision of national courts cannot be annulled by for- eign decisions in certain countries, such as the United States of America. Recourse to the Prize Court might have that effect of annulling a decision of the Supreme Court of the United States of America, a result incom- patible with their Constitution." ^^^ The option permitted by the protocol would eliminate this possibility. It seems probable that the difficulty might have been equally met by domestic legislation providing special courts for the original hearing of Prize Cases. '' Congress," said the Supreme Court in the Gordon Case, " may un- doubtedly establish tribunals with special powers to examine testimony and decide, in the first instance, upon the validity and justice of any claim for money against the United States, subject to the supervision and control of Congress, or a head of any of the executive departments." ^"'^ The establishment of such special tribunals not exercising the judicial power of the United States would, however, be a cumber- i*'3 U. S. For. Rel., 1909, p. 303. ^^*Ibid., p. 318; Report of U. S. delegates, Ibid., p. 305, and President Taft's message, Dec. 6, 1910, Ibid., 1910, p. viii. ^f5 Charles, Treaties, p. 263. Neither the Protocol nor the original con- vention has been ratified though ratification was advised by the Senate, Feb. 15, iQii- 106 Proceedings, London Naval Conference, British Par. Pap. Misc. No. 5 (1909), p. 222. See American statement. Ibid., p. 216. lo'^ Gordon v. U. S., 117 U. S. 697. 214 WRIGHT— LIMITATIONS UPON NATIONAL POWERS. some process if applied merely to prize courts and would become impracticable if appeal to an international tribunal were provided in all cases involving international law or treaty. 65. Limitations Derived from Powers of the President. A treaty may delegate ministerial powers within the United States but it may not deprive the President of rights, privileges, or powers inherent or expressly granted by the Constitution. Some of the proposed Senate reservations to the Treaty of Versailles seemed to be unconstitutional as in certain circumstances they would deprive the President of his veto/*^® of his power to direct the move- ment of troops,^*"* of his power to conduct foreign negotiations in person or through agents^ ^° and of his power to make interim appointments.^^^ 108 " Notice of withdrawal by the United States (from the League of Nations) may be given by concurrent resolution of the Congress of the United States," i.e., by a resolution not submitted to the President. Lodge Reservations, No. i. See Wright, Col. Lazv Rev., 20: 128, and supra, sec. 62. 109 " Congress . . . under the Constitution, has the sole power to declare war or authorize the employment' of the military or naval forces of the United States." Lodge Reservations, No. 2. " The President is made Commander-in-Chief of the army and navy by the Constitution, evidently for the purpose of enabling him to defend the country against invasion, t'o suppress insurrection, and to take care that the laws be faithfully executed. If Congress were to attempt to prevent his use of the army for any of these purposes, the action would be void." Taft, Our Chief Magistrate, pp. 128-129. See also Wright, Col. Law Rev., 20: 134-136. 110 " Until such participation and appointment have been so provided for (i.e., by act of Congress) and the powers and duties of such representatives have been defined by law, no person shall represent the United States under either said League of Nations or the treaty of peace with Germany or be authorized to perform any act for or on behalf of the United States there- under." Lodge Reservation No. 7. This was somewhat modified in the reservations as voted on March 19, 1920. With reference to the independent powers of the President, the Senate Foreign Relations Committee reported in 1894 '■ " Many precedents could be noted to show that such power has been exercised by the President on various occasions without dissent on the part of Congress. These precedents also show that the Senate of the United States, though in session, need not be consulted as to the appointment of such agents." (Cong. Rec, 2d Sess., p. 127, quoted Corwin, op. cit., p. 64.) See also Wright, Col. Law Rev., 20: 136-137. ^11 " No citizen of the United States shall be selected or appointed as a member of said commissions, committees, tribunals, courts, councils or conferences except with the approval of the Senate of the U. S." Lodge WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 215 The manner in which the power to make treaties must be exercised in the United States does not affect the power of the national government as a whole to make international agreements. The distribution of power in making treaties between the President and the Senate will be considered in a later chapter.^^^ Suffice it to say here, that controversy has arisen over the power of the President to negotiate treaties by agents to whose appointment the Senate has not consented, to make executive agreements without Senate consent, and to ignore directions of Congress in negotiation and treaty making. C. Effect oil Potvcy to Make National Decisions. 66. Alleged Encroachments. The doctrine of separation of powers does not limit the power of the United States to make national decisions on international questions. It does, however, limit the power of particular organs to make such decisions. The details of this distribution of power will be considered in a later chapter.^^^ A few of the contro- versies which have arisen may be suggested here. Congressional resolutions recognizing foreign states or govern- ments, expressing national sentiment or policy, directing the Pres- ident in foreign policy, or ordering the detailed movement of troops, have been alleged to encroach upon the President's exclusive power in these matters. Congressional delegations of power to the President to decide when the conditions, previsioned by statutes, actually exist, and upon such decision to put legislative policies into effect by proclama- tion have been questioned. Presidential proclamations of neutrality and war, and confisca- tion orders in time of war, have been questioned as encroachments upon the powers of Congress. Reservation No. 7 but eliminated in revision voted on March 19, 1920. This conflicts with the constitutional provision : " The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." TI, sec. 2, cl. 3. See Wright, Col. Lazv Rev., 20: 138. ^^^ Infra, chap. XIV. ^^^ Infra, chap. XV. 216 WRIGHT— CONSTITUTIONAL LIMITATIONS. Finally, judicial decisions on political questions have been alleged to encroach upon the powers of the President and Congress. CHAPTER VIII. Conclusion on Constitutional Limitations. 67. Traditional Statements of Limitations upon the Treaty Power. As we have seen, limitations upon the power of national organs are of three kinds, in defense of the rights and privileges of individ- uals, the rights and privileges of the states, and the rights, privi- leges and powers of the organs of the national government. The observance of these limitations is considered essential to the preser- vation respectively of individual liberty, the autonomy of the states, and the separation of powers. These three types of limitations are expressed in the classic statement of Justice Field in reference to the treaty power : ^ " 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 arising from the nature of the government 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. Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541. 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 country. Ware v. Hylt'on, 3 Dall. 199; Chirac z: Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 100 U. S. 483; 8 Opinions Attys. Gen. 417; People v. Gerke, 5 California 381." Jefferson and Calhoun each attempted to define the limits of the treaty power in well-known statements. Calhoun wrote : - " It (the treaty-making power) is . . . limited by all the provisions of the Constitution which inhibit certain acts from being done by the govern- ment, or any of its departments ; of which description there are many. It is also limited by such provisions of the Constitution as direct certain act's to 1 Geofroy v. Riggs, 133 U. S. 258, 267 (1890). 2 Calhoun, Discourse on Constitutional Government of U. S., Works, I : 203 ; Moore, Digest, 5 : 166. WRIGHT— CONSTITUTIONAL LIMITATIONS. 217 be done in a particular way, and which prohibit the contrary, of which a striking example is to be found in that which declares that no money shall be drawn from the Treasury but in consequence of appropriations to be made by law. This not only imposes an important restriction on the power, but gives to Congress as the law-making power, and to the House of Rep- resentatives as a portion of Congress, the right to withhold appropriations; and thereby, an important control over the treaty-making power, whenever money is required to carry a treaty into effect; which is usually the case, especially in reference to those of much importance. There still remains another, and more important limitation, but of a more general and indefinite character. It can enter into no stipulation calculated to change the 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." This seems to follow the recognized view. It should be noticed, however, that while, under constitutional law (though not under international law), Congress has the right to withhold appropria- tions, yet by constitutional understandings^ it ought not to do so. Thus though .a treaty could not vest the power to make appropria- tions in any organ other than Congress, yet, the fact that a treaty requires an appropriation does not impeach the validity of a treaty, as Calhoun himself clearly stated while Secretary of State:* " The treaty-making power has, indeed, been regarded to be so compre- hensive as to embrace, with few exceptions, all questions that' can possibly arise between us and other nations, and which can only be adjusted by their mutual consent, whether the subject matter be comprised among the delegated or the reserved powers. So far, indeed, is it from being true, as the report supposed, that the mere fact of a power being delegated to Congress excludes it from being the subject of treaty stipulations; that even its exclusive delegation, if we may judge from the habitual practice of the government, does not — of which the power of appropriating money affords a striking example. It is expressly and exclusively delegated to Congress, and yet scarcely a treaty has been made of any importance which does not stipulate for the payment of money. No objection has ever been made on this account. The only question ever raised in reference to it is, whether Congress has not unlimited discretion to grant or withhold the appro- priation." ^ Infra, sec. 256. * Mr. Calhoun, Sec. of State, to Mr. Wheaton, jNIinister to Prussia, June 28, 1844. Moore, Digest, 5 : 164. See also infra, sec. 59. 218 WRIGHT— CONSTITUTIONAL LIMITATIONS. Jefferson wrote in his Manual of Parliamentary Practice : ^ " To what subjects this power extends, has not been defined in detail by the Constitution, nor are we entirely agreed among ourselves, (i) It is admitted that it must concern the foreign nation, party to the contract, or it would be a mere nullity, res inter alios acta. (2) By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty and cannot be otherwise regulated. (3) 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. (4) And also to except those subjects of legislation in which it gave a par- ticipation to the House of Representatives. This last exception is denied by some, on the ground that it would leave very little matter for the treaty power to work on. The less the better, say others." This statement is both erroneous and incomplete, it seems, there- fore, unfortunate that it should be reprinted in both Senate and House manuals without explanatory comment.® It does not state all of the limitations which actually exist and the last two limitations stated do not exist. The last is effectively refuted by the state- ment quoted from Calhoun. The third is thus dealt with by Attorney General Griggs : '^ " The regulation of fisheries in navigable waters within the territorial limits of the several States is, in the absence of a treaty, a subject of State rather than of Federal jurisdiction ; but the government of the United States has power to enter into treaty stipulations on the subject, e.g., with Great Britain, for the regulation of the fisheries in the waters of the United States and Canada along the international boundary; and the fact that a treaty provision would annul and supersede a particular State law on the subject would be no objection to the validity of the treaty." The limitation referred to last by Justice Field and first and sec- ond by Jefferson applies to the exercise of all powers in the field of foreign relations. They must be bona fide directed toward the conduct of international relations. Thus a purported declaration of war, really designed to excuse an invasion of the residual powers of the states, would doubtless be void ; though it might be difficult to discover a court with sufficient temerity to declare it so, if con- 5 Art. 52, Moore, Digest, 5 : 162. 6 Senate, Manual, 1913, p. 149; Rules of H. of R., 1914, sec. 587, p. 252. ''Griggs, Att. Gen., 22 Op. 214 (1898), Moore, Digest, 5: 161-162. See also supra, sec. 50. WRIGHT— CONSTITUTIONAL LIMITATIONS. 219 stitutional government had so lapsed in vigilance as to present the opportunity. Such acts can only be prevented by operation of the political checks upon government.^ 68. Alost Limitations Unimportant in Practice. Although in theory constitutional limitations apply to the organs of government in the conduct of foreign relations, as well as domestic affairs, yet in practice it is discovered that many limita- tions, especially those for the protection of individual and states' rights, are applicable only within American territory and hence do not limit the exterritorial action of national organs.^ Further- more, even when limitations are legally applicable, their enforce- ment is apt to belong to the political departments of government because of the disinclination of the courts to pass on " political questions." ^° Obviously the political departments are more likely to err on the side of an efficient exercise of national power than on the side of an excessive regard for constitutional limitations. Finally, even when such cases do come before the courts, they show an unquestionable tendency to interpret limitations less rigor- ously where foreign affairs are involved." ^^ " In the exercise of its international and military power," says Freund, " the state is freed from many of the restraints under which it must conduct the peaceful government of its own citizens." ^^ Though this cati hardly be accepted in constitutional theory, except as explained above, undoubtedly, it is true in fact,^^ and for reasons thus ex- plained by Hamilton : ^* " As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power s Willoughby, op. cit., p. 504; Corwin, National Supremacy, pp. 302-308. ^ In re Ross, 140 U. S. 453. ^0 Foster v. Neilson, 2 Pet. 253 ; The Prize Case, 2 Black 635 ; Texas v. White, 7 Wall. 700, Infra, sec. 107. 11 Dillon's case, 7 Sawyer 561, Fed. Cas. No. 3914 (1854) ; Moore, Digest, 5 : 79 ; Supra, sec. 46. 12 Freund, The Police Power, Chicago, 1904, p. 4. 13 Note the long leash given to the military power during the Civil War as compared with the law as subsequently stated in Ex Parte Milligan, 4 Wall. 2; Rhodes, History of U. S.. 4: 248 et seq. 1* The Federalist, No. 31, Ford ed., p. 194. 220 WRIGHT— CONSTITUTIONAL LIMITATIONS. of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community." 69. Important Limitations from Separation of Powers. In fact the only important legal limitation upon the foreign relations power seems to be that, resulting from the doctrine of separation of powers, that all acts must be performed by the organ designated for that purpose by the Constitution. With a proper application of the understandings of the Constitution this limita- tion does not interfere with an adequate meeting of international responsibilities and carrying out of national policies except in one case. This is where the achievement of these ends requires that powers be vested in an international body created by treaty. As we have seen there is no difficulty in vesting such a body with au- thority to decide on questions of fact and law since the treaty power, or the treaty power supplemented by congressional legisla- tion have been held fully competent to create agencies for these purposes. ^^ A difficulty might arise, in case such a body were given appellate jurisdiction over the Supreme Court but this could be eliminated either by treaty provision for starting original action in the international tribunal or, in certain cases, by congressional provision for special tribunals within the United States, not exer- cising the judicial power of the United States, for the original hearing, from which appeal might be taken to the international court.^^ A delegation of political power, that is legislative or treaty-mak- ing power, to such a body would be luiconstitutional, but this never seems to have been contemplated. Bodies such as the Assembly and Council of the League of Nations, in which all binding political decisions require the assent of the American representative, would not violate this principle, since the American representative would presumably be instructed to withhold his consent or give merely tentative consent in any matter within the exclusive competence of Congress or the treaty-making power until those organs had acted. ^'^ 15 Supra, sec. 60, note 42 ; infra, sees. 225-227. 16 Stipra, sec. 64. 1'^ Supra, sec. 63. WRIGHT— CONSTITUTIONAL LIMITATIONS. 221 A too rigid application of the doctrine of separation of powers will inevitably produce friction between the departments and impair the ability of the government rapidly and efficiently to meet inter- national responsibilities and to decide upon and carry out national policies. This difficulty may be greatly reduced through the regular observance by each organ of certain constitutional understandings, directing the method by which discretionary power ought to be exercised. Thus before making a decision each independent organ ought to consider the views of other independent organs whose cooperation will be necessary in order to carry out such decision ; and after a decision has been made by any organ acting within its constitutional powers, all other independent organs ought to con- sider themselves bound to so exercise their powers as to give that decision full effect. The development of and adhesion to these understandings is most essential if foreign relations are to be carried on effectively by a government guaranteeing the separation of powers by its fundamental law.^® PART IV. The Power to Conduct Foreign Relations under THE Constitution. CHAPTER IX. The Position of the Foreign Relations Power in the Constitutional System. A. Source of National Powers. 70. Distribution of Powers Between States and National Govern- ment. The Constitution establishes a federal government, certain powers being expressly or impliedly delegated to the national gov- ernment, the rest, unless prohibited to the states, being reserved to the states respectively or to the people. Now the control of foreign 1* Infra, sec. 249. 222 WRIGHT— POSITION OF FOREIGN RELATIONS affairs has been very largely vested in the national government. Its organs are given power to send and receive diplomatic officers, to make treaties, to grant letters of marque and reprisal, to declare and conduct war, to assume jurisdiction in cases involving for- eign diplomatic officers, foreign states or the interpretation of treaties, to pass laws relating to foreign commerce, naturalization, piracies and offences against the law of nations and any other laws that may be necessary and proper for carrying any of these powers into execution. On the other hand, the states are expressly forbidden to enter into any treaty, alliance, or confederation or, unless Congress consent, into any agreement or compact with a foreign power; to grant letters of marque and reprisal or without the consent of Congress to engage in war unless invaded or in imminent danger thereof ; to lay tonnage, import or export duties, except for execut- ing their inspection laws. The only powers connected with foreign relations which the states seem competent to exercise without con- gressional consent relate to the meeting of international responsi- bilities. The states have power to provide aliens within their borders the protection and to assure them the other rights, guaran- teed by international law and treaty, and state judges are ex- pressly enjoined to observe treaties as the supreme law of the land, anything in the state constitution or laws to the contrary notwith- standing. Full power to enforce treaties and international law within the state could doubtless be conferred upon national officers and courts by act of Congress under the necessary and proper clause, but the legislation at present in force is not complete and state authorities alone must be relied on to meet certain international responsibilities. 71. Theory of Sovereign Powers in National Government. In view of the almost complete prohibition of the states from the control of foreign relations, it has been argued that the national government must necessarily have all powers in this field enjoyed by sovereign nations. Thus said Justice Field in the Chinese Ex- clusion Cases : ^ 1 Chinese Exclusion Cases, 130 U. S. 581. POWER IN THE CONSTITUTIONAL SYSTEM. 223 " 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 independence and security throughout its entire territory." Justice Gray repeated the theory in Fong Yue Ting v. United States : ^ " The United States are a sovereign and independent nation, and are in- vested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and to make it effective." Aside from the power to exclude ahens. the court has derived the power to acquire territory from this theory,^ but in other cases the latter power has been implied from the power to make treaties, and to declare war.* The general theory of national powers derived from sover- eignty has not been approved by commentators^ or by the weight of judicial decisions. Thus in Kansas v. Colorado Justice Brewer emphatically repudiated the " doctrine of sovereign and inherent powers." ® 2 Fong Yue Ting v. U. S., 149 U. S. 698. 3 Jones v. U. S., 137 U. S. 202, and discussion by Willoughby, op. cit., p. 340. See also cases cited. Ibid., pp. 454-455. 4 American Insurance Co. v. Canter, i Pet. 511; Flemming v. Page, 9 How. 603; Willoughby, op. cit., p. 339. The power to admit new states to the Union has also been suggested as a ground for annexation, though such an interpretation of the clause (Constitution, IV, sec. 3, cl. i) was not intended by the drafter of the Constitution. See letter of Gouverneur Mor- ris to Livingston, 1803, Life and Writings (Sparks), 3: 192, quoted in Wil- loughby, op. cit., p. 328. 5 Willoughby, op. cit., p. 69, who, however, approves a limited applica- tion of the theory in respect to foreign relations, Ibid., p. 45. " It cannot, therefore, be maintained that, merely because the United States is classed as a ' sovereign nation,' the government or any part of it can therefore per- form a sovereign act beyond the scope of the purposes for which it was created, for although the nation is sovereign the Government is not. Com- plete sovereignty resides in the people as a whole, and not in any or all of the public officers." D. J. Hill, Present' Problems of Foreign Policy, N. Y.. 1919. p. 155- '^ Kansas t'. Colorado, 206 U. S. 46. 224 WRIGHT— POSITION OF FOREIGN RELATIONS " But," he said, " the proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the amendments, for other- wise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the Tenth Amendment." Chief Justice Taney had earlier insisted that no argument could be drawn " from the nature of sovereignty, or the necessities of government for self-defense in time of tumult and danger." ^ 72. Theory of National Sovereignty in Foreign Relations. But though the general theory of sovereign powers, which would vest in the national government all powers not expressly prohibited, cannot be maintained, more support can be cited for the theory if confined to the control of foreign relations. Thus Willoughby says : ^ . " From these express grants of power to the General Government, and prohibitions of treaty powers to the States, the intention of the framers of the Constitution to invest the Federal Government with the exclusive control of foreign afifairs is readily deducible. " The control of international relations vested in the General Govern- ment is not only exclusive but all-comprehensive. That is to say, the au- thority of the United States in its dealings with foreign powers includes not only those powers which the Constitution specifically grants it, but all those powers which States in general possess with regard to matters of inter- national concern. " This appeal, however, to the fact of ' national sovereignty ' as a source of federal power is not a valid one outside of the international field. It cannot properly be resorted to when recognition of an international obliga- tion on the part of the United States is not involved, and when, therefore, the matter is purely one relatmg to the reserved powers of the States or to the private rights of the individuals. To permit the doctrine to apply within these fields would at once render the Federal Government one of unlimited powers." The writer is unable to accept this doctrine. The fact that powers relating to the control of foreign relations are expressly enumerated '^ Ex Parte Merryman, Taney's reports, p. 246; Thayer, Cases on Const. Law, 2: 2361, 2368. 8 Willoughby, op. cit., pp. 451, 454. See also Ibid., p. 65. POWER IN THE CONSTITUTIONAL SYSTEM. 225 by the Constitution, which enumeration would be rendered super- fluous by the theory, the fact that the states actually exercise some powers which directly affect foreign relations, such as the protection of domiciled aliens, the fact that certain constitutional limitations such as those contained in the bill of rights are generally acknowl- edged to limit the scope of treaty-making and other activities in the control of foreign relations seem to indicate that the national foreign relations power is neither implied from sovereignty, nor exclusive, nor all-comprehensive, though it undoubtedly, very nearly enjoys the two latter characteristics. The writer is not aware of any judicial decision which requires the theory for support, and he considers that certain judicial dicta, unquestionably supporting it, are overborne by the repeated assertions of the Supreme Court that the national government is a government of delegated power. Consequently in the field of foreign relations as in other fields he assumes that all national powers must be founded upon express or implied delegation by the Constitution. 73. Theory of Resultant Powers. However, powers may be implied as a " resultant " of a group of express powers — it is not necessary that implied powers be traced always to a single express delegation. " It is to be observed," said Chief Justice Marshall, " that it is not indis- pensable to the existence of every power claimed for the Federal Government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly de- fined, or from them all combined. It is allowable to group together any number of them and to infer from them all that the power claimed has been conferred." ^ Thus the power to recognize foreign states and governments may be implied from the powers of receiving and commissioning diplo- matic officers ; ^° the power to exclude and expel aliens may be implied from the powers of regulating foreign commerce, natural- 9 Cohens v. Va., 6 Wheat. 264 ; U. S. v. Gettysburg Electric Ry. Co., 160 U. S. 668, 681-683 (1896). See Willoughby, op. cit., p. 66, and Legal Tender Cases, 12 Wall. 457, quoted ibid., p. 65. 10 Corwin, The President's Control of Foreign Relations, p. 71. 226 WRIGHT— POSITION OF FOREIGN RELATIONS izing aliens and declaring war ; ^^ the power to annex and govern territory may be implied from the power of making treaties, declar- ing war, and admitting new states to the Union.^" We assume, 11 Although in the Chinese Exclusion Cases (130 U. S. 581, 1889) and Fong Yue Ting v. U. S. (149 U. S. 690, 1893) certain expressions of the court support the contention that the power of exclusion and expulsion are derived from national sovereignty in foreign affairs, yet it is to be noted that in both of these cases the court carefully enumerated the specific grants of power of which these so-called sovereign powers are the resultant. The argument in the Chinese Exclusion Cases, that the power to make war for defense implies a power to take lesser defensive measure, and that the occasion for and methods of such defense is a political question not subject to judicial deter- mination, may also be noticed. " It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character or from vast hordes of its people crowding in upon us. The gov- ernment, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determination, so far as the subjects affected are concerned, is necessarily conclusive upon all its departments and officers. Thus when the court spoke of ' sovereign powers ' it had in mind powers resultant from a group of express or implied powers, and not powers deduced from an abstract theory of sovereignty." 12 The case of Jones v. U. S.(i37 U. S. 202), which is cited by Willoughbv as not only practically upholding the right of the United States to acquire territory by discovery and occupation, but applying the principle that " the United States may exercise a power not enumerated in the Constitution, pro- vided it be an international power generally possessed by sovereign states " (op. cit., p. 341), really turned on the principle of "political question." "Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances." Apparently the President's power to recognize acquisi- tions of territory by the United States, through the operation of international law, flows from his constitutional position as the representative organ of the government. It is to be noted that he has recognized such acquisitions aside from congressional legislation. (Moore, Digest, i: 555.) Thus such acquisi- tions are made by operation of international law. Recognition thereof is a political function of the President, and the courts are bound by such decision. The act of Congress (Act of Aug. 18, 1856, Rev. Stat, sees. 5570-5578) in- volved in this case defines the circumstances under which and the procedure by which American citizens, discovering Guano Islands, can benefit by the rule of international law and the rights and degree of protection to which they are entitled, thus falling under the power to govern territory. Constitution, art IV, sec. 3, par. 2. (See Moore, Digert, i : 556 ct seq.) POWER IN THE CONSTITUTIONAL SYSTEM. 227 therefore, that the foreign relations power in common with all other national powers, exists only as far as (i) expressly delegated by the Constitution, (2) implied from expressly delegated powers, or (3) implied as a "resultant" from a group of express or implied powers.^^ B. Essential Nature of the Foreign Relations Power. 74. Controversy as to Nature of Foreign Relations Power. Since the beginning of the go\«ernment under the Constitution there has been a controversy as to the essential nature of the for- eign relations power. One school has contended that such powers are essentially executive and hence all delegations of power to Congress in this field must be strictly construed while delegations of power to the President may be liberally construed. Some have gone even farther and in view of the constitutional statement that " The Executive power shall be vested in a President of the United States of America " have contended that all foreign relations powers not otherwise expressly delegated are by this general grant of executive power vested in the President. Another school has taken the reverse view, supporting a liberal legislative power and a narrow construction of executive powers. 75. Foreign Relations Power not Essentially Judicial. The courts have been perfectly clear that these powers are not of an essential judicial nature, and consequently have con- sidered themselves incompetent to decide them. They have usually called them ** political questions " and have accepted the decisions of the political branches of the government without question.^* 13 Unquestionably the enumerated powers relating to foreign affairs, either by imph'cation or combination, will permit Congress to pass practically any laws properly within that field. Consequently in practice this theory of con- gressional power differs little from the theory asserting that congressional powers can be deduced from national sovereignty in foreign affairs. The difficulty of the latter theory, however, lies in the fact that a recognition of congressional sovereignty in foreign affairs would seem to exempt Congress from constitutional limitations arising from individual rights, states' rights and the separation of powers in this field. " Sovereignty " is not only pleni- tude of power, but also absence of limitation. See supra, note S- 1* Infra, sec. 107. PROC. AMER. PHIL. SOC, VOL. LX., P, MARCH 9, I922. 228 WRIGHT— POSITION OF FOREIGN RELATIONS However, the political branches of the government include both the legislative and executive branches, consequently judicial opinions give us little assistance in our e'ffort to determine whether these powers are essentially legislative or essentially executive. 76. Theory of Essentially Executive Nature. Early Opimon. Supporters of the essentially executive character of foreign rela- tions powers notice that writers with whom the members of the federal convention were familiar such as Locke, Montesquieu, De Lolme and Blackstone appeared to classify the control of foreign relations as executive. In European countries, especially in Great Britain, the Chief Executive conducted foreign relations. Further- more, they say, the debates in the federal convention tended in this direction. The treaty-making power, vested in Congress under the Confederation, was first given to the Senate by the Convention, but finally the President was added and in the ultimate draft the subject is concluded in the section dealing with Executive power, indicating that the Convention had become convinced of its executive char- acter. Washington's recognition of the new French republic by reception of Citizen Genet upon his own responsibility set a prec- edent which has since been followed. His proclamation of neu- trality, when many thought the French alliance treaty required war, was loudly denounced by the Jeffersonian Republicans, but the precedent has been invariably followed since when occasion has arisen for proclaiming neutrality. This first neutrality proclama- tion occasioned a lively pamphlet debate between Hamilton and Madison under the names of " Pacificus " and " Helvidius," and Hamilton, who supported the executive character of the procla- mation, won, if future practice is to be the judge. ^^ " It deserves to be remarked," he wrote, " that as the participation of the Senate in the making of treaties, and the power of the legislature to declare war, are exceptions out of the general ' executive power ' vested in the Presi- dent, they are to be construed strictly, and ought to be extended no further than is essential to their execution. While, therefore, the legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of hostility, it belongs to the ' executive power ' to do whatever else the law of nations, cooperating with the treaties, of the country enjoins in the intercourse of the United States with foreign powers." 15 Hamilton, Works (Federal ed.. Lodge), 4: 443. POWER IN THE CONSTITUTIONAL SYSTEM. 229 yy. Essentially Executive Nature. Practice. Advocates of this theory notice that in practice the President alone has recognized foreign governments and states and pro- claimed neutrality. He has initiated all foreign negotiations and has held himself free to ignore congressional resolutions or acts on the subject. He has even authorized foreign military expeditions on his own authority and has initiated all wars. He has on his own responsibility executed treaties of extradition, guarantee, and intervention. He has made executive agreements terminating hos- tilities, outlining terms of peace, annexing territory and providing for administration in foreign territory, and he has denounced treaties. 78. Essentially Executive Nature. Recent Opinion. A debate on the extent of executive prerogative in foreign rela- tions was indulged in by Senators in 1906 on the occasion of Pres- ident Roosevelt's negotiation of the Algeciras convention through personal agents, whose appointments had not been consented to by the Senate. Senator Spooner of Wisconsin supported the Pres- ident.^® " From the foundation of the Government it has been conceded in practice and in theory that the Constitution vests the power of negotiation and the various phases — and they are multifarious — of the conduct of our foreign re- lations exclusively in the President. And, Mr. President, he does not exer- cise that constitutional power, nor can he be made to do it, under the tutelage or guardianship of the Senate or of the House or of the Senate and House combined. . . . 16 Cong. Rec, Jan. 22,, Feb. 6, 1906, 40: 1417-1421, 2125-2148; Rekisch, Readings in Am. Fed. Govt., 81-124; Corwin, op. cit., pp. 170, 172, 176, 203. Senator Beveridge remarked during this debate : " Does not the Senator (Bacon) think that in the natural division of the powers of the Government into legislative, executive, and judicial the treaty-making power has always been considered an executive function, and therefore, if the Constitution had been silent upon the subject of treaties, it would have been completely under the President's control, under that provision of the Constitution which con- fides in the President executive power, and that the section concerning trea- ties is merely a limitation upon that universal power?" Ibid., p. 184. "All duties in connection with foreign relations not otherwise specified fall within the sphere of the executive." Sen. Doc. No. 56, 54th Cong., 2d sess. See also infra, sec. 92. 230 WRIGHT— POSITION OF FOREIGN RELATIONS " Mr. President, I do not stop at this moment to cite authorities in sup- port of the proposition, that so far as the conduct of our foreign relations is concerned, excluding only the Senate's participation in the making of treaties, the President has the absolute and uncontrolled and uncontrollable au- thority. . . . " We as the Senate, a part of the treaty-making power, have no more right under the Constitution to invade the prerogative of the President to negotiate treaties, and that is not all — the conduct of our foreign relations is not limited to the negotiation of treaties — we have no more right under the Constitution to invade that prerogative than he has to invade the prerogative of legislation. . . . " I do not know whether it will be any ' light ' to the Senator from South Carolina, but in Mr. Jefiferson's opinion on the Powers of the Senate, a very celebrated document, which he gave at the request of the President, this lan- guage was used : ' The transaction of business with foreign nations is execu- tive altogether. It belongs, then, to the head of that department, except as to such portions of it as are especially submitted to the Senate. Exceptions are to be construed strictly.' " 79. Theory of Essentially Legislative Nature. Early Opinion. Hovv^ever, supporters of the essentially legislative character of the foreign relations power are not without ammunition. Whatever may have been the opinion of theoretic writers and the practice of European nations, the fact is undoubted that the first American Government vested all foreign relations powers in Congress and the Constitutional Convention started from the assumption that these < powers were legislative. The particular powers in the field which they delegated to the President in part or in full may have been in view of particular expediencies. But the most important for- eign relations powers were left largely legislative. The power to declare war, to define piracies and offenses against the law of nations and to regulate foreign commerce are left with Congress and the power to make treaties and to appoint ambassadors, public ministers and consuls requires the consent of the Senate. Furthermore, whatever Jefferson may have said or done at other times, certainly he denounced Hamilton's theory of the essentially executive nature of the foreign relations power in I793 and urged Madison to " take up your pen, select the most striking heresies, and cut him to pieces in face of the public." '^^ Madison i'^ Jefferson, Writings, P. L. Ford, ed., 6: 338. POWER IN THE CONSTITUTIONAL SYSTEM. 231 actually entered the lists and wrote, under the name of " Hel- vidius" : ^^ " In the general distribution of powers, we find that of declaring war expressly vested in the Congress, where every other legislative power is de- clared to be vested ; and without any other qualifications than what is common to every other legislative act. The constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature. . . . " There are sufficient indications that the power of treaties is regarded by the Constitution as materially different from mere executive power, and as having more affinity to the legislative that to the executive character. " One circumstance indicating this is the constitutional regulation under which the Senate give their consent in the case of treaties. In all other cases the consent of the body is expressed by a majority of voices. In this particu- lar case, a concurrence of two-thirds at least is made necessary, as a substi- tute or compensation for the other branch of the legislature, which, on certain occasions, could not be conveniently a party to the transaction. " But the conclusive circumstance is, that treaties, when formed according to the constitutional mode, are confessedly to have the force and operation of laii'Sj and are to be a rule for the courts in controversies between man and man, as much as any other laws. They are even emphatically declared by the Constitution to be ' the supreme law of the land.' " So far the argument from the Constitution is precisely in opposition to the doctrine. As little will be gained in its favour from a comparison of the two powers with those particularly vested in the President alone. . . . " Thus it appears that by whatever standard we try this doctrine, it must be condemned as no less vicious in theory than it would be dangerous in prac- tice. It is countenanced neither by the writers on law ; nor by the nature of the powers themselves ; nor by any general arrangements, or particular ex- pressions, or plausible analogies, to be found in the Constitution. "Whence then can the writer have borrowed it? " There is but one answer to this question. " The power of making treaties and the power of declaring war are royal prerogatives in the British government^ and are accordingly treated as execu- tive prerogatives by British commentators." 80. Essentially Legislative Nature. Practice. In practice it can be shown that Congress has occasionally passed resolutions advising or directing the opening of negotia- tions with a view to the conclusion or modification of treaties and the President has usually followed this advice. Congress has also passed resolutions directing the termination of treaties and the use of force abroad aside from the exercise of its express powers of declaring war, defining piracies and offenses against the law of na- 18 Madison, Writings, Hunt, ed., 6: 147-150. 232 WRIGHT— POSITION OF FOREIGN RELATIONS tions and regulating foreign commerce. The Senate, moreover, has, throughout American history, exercised its power to reject treaties, or consent to their ratification with amendments or reser- vations. 8i. Essentially Legislative Nature. Recent Opinion. In the Senatorial Debate of 1906 referred to, Senator Bacon of Georgia supported the legislative nature of the foreign relations power : ^® "Mr. Beveridge (Indiana). I will ask this question: If the Constitution had said nothing about the treaty-making power, where would the treaty- making power have been lodged? " Mr. Bacon. I have received that question from the Senator several times. I have said that I did not agree with him that it would be with the Executive. "Mr. Beveridge. Where would it be? " Mr. Bacon. I think, undoubtedly, in the legislative branch of the Gov- ernment, for reasons which I will' give. " Mr. Beveridge. That is the whole question. " Mr. Bacon. Here is where the sovereignty of the Government was intended to be in almost its totality — in the legislative branch of the Govern- ment, and the vast array of powers in the first article of the Constitution proves it; and, further than that, the Constitution of the United States was intended to take the place of and to supersede the Articles of Confederation, under which articles the power to make treaties did lodge in Congress alone ; and it was not to be presumed when the Constitution was formed in the absence of some special and particular designation, that it was the intention to confer it upon the Executive. The presumption would be the other way." 82. Theory of a Fourth Department Different frotn Either Ex- ecutive or Legislative. Although on the whole those favoring the executive prerogative have the better of the argument, especially in the light of practice in such matters as recognition and treaty negotiation, yet there does not seem warrant for a full acceptance of the view stated by Sen- ator Spooner. We are inclined to reject both views in their ex- treme forms and to accept that of the Federalist which held the foreign relations power to be neither legislative nor executive but a fourth department of government.-" 19 Supra, note 16. 20 Infra, sec. 85. POWER IN THE CONSTITUTIONAL SYSTEM. 233 However, to sustain this distinction we must recognize the am- biguity of the term " executive power." Writers on administrative law have recognized the two distinct functions frequently vested in the chief executive, designated respectively as " political " and " ad- ministrative " functions.-^ The political functions exhausted the early conception of " executive power " and corresponded very closely to what we call the foreign relations power. During the nineteenth century, however, the administrative functions of the chief executive or the functions of executing the law and direct- ing the national civil services have increased in importance and now it is to these that writers and courts usually refer when they speak of " executive power." Thus though foreign relations power is almost synonymous with executive power according to the earlier usage, under present usage the two are distinct. This is especially true in the United States. Here the political functions of the executive are largely in the field of foreign rela- tions.^^ Though the President has been gaining an increasing political influence in domestic afifairs through the veto, the patron- age, "and his extra-constitutional position as head of his political party, yet, lacking the powers of initiating legislation, personally forcing it through the legislature, and if necessary proroguing or dissolving that body, commonly exercised by European executives, he has not assumed the dominating position in domestic policy found there. His legal powers have been in the main confined to executing the law and directing the national civil service. In foreign affairs, on the other hand, the President's political powers are as great as those of the executive in most European countries, but for their exercise he usually requires the advice and consent of the Senate. Thus, these powers have tended to be dis- 21 Goodnow, Principles of the Administrative Law of the U. S., p. 66; Wil'loughby, op. cit., p. 1156. -- The only ones which are not are the veto power given by Art. I, sec. 7, par. 3, and those in Art. II, sec. 3. " He shall from time to time give to the Congress information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with respect to the Time of Adjourn- ment, he may adjourn them to such time as he shall think proper." 234 WRIGHT— POSITION OF FOREIGN RELATIONS sociated from the ordinary executive powers exercised independ- ently by the President but within the Hmits of detailed statutes. 83. A Fourth Department. Opinion of Theoretical Writers. A careful examination of the views of Locke and Montesquieu will indicate that they regarded the control of foreign relations as a distinct department of government. Locke used the term " fed- erative " to designate this department and distinguished it from both the " executive " and " legislative " departments.^^ " But because the laws, that are at once, and in a short time made, have a constant and lasting force, and need a perpetual execution or an attendance thereunto; therefore, it is necessary there should be a power always in being which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated. " There is another power in every commonwealth. . . . Though in a commonwealth the members of it are distinct persons still in reference to one another, and as such are governed by the laws of the society; yet in reference to the rest of mankind, they make one body. . . . Hence it is that the con- troversies that happen between any man of the society with those that are out of it are managed by the public, and an injury done to a member of their body engages the whole in the reparation of it. This, therefore, contains the power of war and peace, leagues and alliancfes, and all the transactions, "with all persons and communities without the commonwealth; and may be called federative, if anyone pleases. So the thing be understood, I am indifferent as to the name. " These two powers, executive and federative, though they be really dis- tinct in themselves, yet one comprehending the execution of the municipal laws of the society within itself, upon all that are parts of it; the other the management of the security and interest of the public without, with all those that it may receive benefit or damage from; yet they are always almost united. And though this federative power in the well- or ill-management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent standing, positive laws, than the executive; and so must necessarily be left to the prudence and wisdom of those whose hands it is in, to be managed for the public good: for the laws that concern subjects one amongst another, being to» direct their actions, may well enough precede them. But what is to be done in reference to foreigners, depending much upon their actions, and the variation of designs, and interests, must be left in great part to the prudence of those who have this power committed to them to be managed by the best of their skill, for the advantage of the common- wealth. " Though, as I said, the executive and federative power of every com- munity be really distinct in themselves, yet they are hardly to be separated 23 Treatise of Civil Government, sees. 144-148, Works, ed. 1801, 5 : 425-6. POWER IN THE CONSTITUTIONAL SYSTEM. 235 and placed at the same time in the hands of distinct persons; for both of them requiring the force of the society for their exercise, it is almost impracticable to place the force of the commonwealth in distinct, and not subordinate hands; or that the executive and federative pow^er should b^ placed in persons that might act separately, whereby the force of the public would be under diflferent commands : which would be apt some time or other to cause disorder and ruin." Montesquieu's triple division was the same : -■* " In every government," he says, " there are three sorts of power : the legislative ; the executive, in respect to things dependent on the law of na- tions ; and the executive in regard to things that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends, or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasion. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state." Both of these writers grouped judicial and " executive " powers in one department which Locke designated " executive " and Mon- tesquieu " judicial." Each considered the conduct of foreign rela- tions a distinct department of government, which Locke called " federative " and Montesquieu, " executive." Confusion results from the different meaning given to the term " executive " by the two men, but in substance their classifications were precisely the same. This classification of departments was also that which they actually observe in the British government of the time. 84. A Fourth Department. British and Colonial Precedents. In the i8th century the prerogative of the British Crown in Council concerned largely war, foreign relations, colonies, appoint- ments and removals, the summoning, proroguing and dissolution of Parliament. The Crown administered the finances and the com- mercial regulations but it did so under authority delegated by Par- liament, which levied all taxes, made all appropriations, and passed general laws for defining commercial policy. With the ex- ception of taxation, however, domestic administration was almost -* L'Esprit des Lois, Ixi, c. 6, Philadelphia, 1802, i: 181. Note Madison's paraphrase of this in the Federal Convention, infra, note 34. 236 WRIGHT— POSITION OF FOREIGN RELATIONS entirely conducted by the courts and the justices of the peace.^^ Not until the late eighteenth and nineteenth centuries did the great ministries for dpmestic administration develop,^^ and not until this 25 The English Government has been undergoing continuous functional differentiation throughout its history. Locke and Montesquieu caught the process at a particular time and crystallized it in the theory of separation of powers. In the period of the Norman and Angevin kings the functions of government were: (i) Military, controlled by the king under restrictions of feudal and customary law, and naval, exercised at first through the Cinque ports with their Warden, and later delegated to the Lord High Admiral; (2) Financial, in which the Crown was gradually forced to rely on parliamentary grants, merely retaining control of the administrative machinery for collecting and disbursing, exercised through the Justiciar later supplanted by the Treas- urer and through the Exchequer with its chancellor; (3) Judicial, in which the Crown delegated authority to the central courts of Common Pleas, King's Bench and Exchequer, which, though appointed by the Crown, tended to ac- quire an independence from its control. A certain residuum of judicial power, however, remained on the one hand in the House of Lords and on the other in the Crown, who exercised it through the Lord Chancellor and the Privy Council. As time went on, relations of a peaceful kind with foreign nations were established and the making of treaties and sending and receiving of diplo- matic officers were added to the military functions of the Crown. These were conducted by the Secretary of State. Parliament soon began to insist that, in exchange for its grants of money, the King should reform abuses, first requested by petition, but tending to assume the form of definite bills. Thus in addition to taxation. Parliament acquired the function of legislation. As population increased and the problems of local administration became more complex, the courts, and especially the Justices of the Peace, added to their judicial functions much of an administrative character. Thus by the time of the Revolution of 1688 the functions of government were dis- tributed among three fairly distinct departments. The Crown controlled mili- tary, naval and foreign affairs, the administration of finances and power of appointment. Parliament controlled the raising and appropriation of revenue and the enactment of general laws. The Courts and Justices of the Peace administered criminal and civil laws and performed practically all functions of domestic administration, except finance. This division of power was de- scribed by John Locke, taken from him by Montesquieu and Blackstone and ' from them by the American Constitutional Fathers. (See Medley, English Constitutional History, 2d ed., pp. 112, 231, 367, 392.) 26 Before 1782 the important ministerial offices were Lord Chancellor, Lord High Admiral in Commission, Secretary at War, two Secretaries of State, one each for northern and southern Europe, Lord Treasurer in Commis- sion, Chancellor of the Exchequer and Board of Trade. None of these really concerned domestic administration except finances. The Secretary of State for Home Affairs was created in 1782; Board of Works and Public Build- POWER IN THE CONSTITUTIONAL SYSTEM. 237 time did the responsibility of the Cabinet to Parliament become established.^" Even during the 19th and 20th centuries, the pre- rogative in foreign relations has been exercised by the Crown in Council quite independently both of party politics and of parlia- mentary responsibility.-* The distinction has continued to exist between the foreign relations power exercised rather independently by the Crown in Council and the executive power exercised by the Crown under powers delegated by Parliament and through ministers responsible to that body. The executive power as known to the constitutional fathers in the colonial governor was similar to that of the British Crown in the i8th century with the very important exception of the foreign relations power. The colonial governor exercised merely such powers as summoning and dissolving the legislature and appointing and removing officers. " Administrative matters," says Goodnow, " outside of those directly con- nected with the military powers of the governor had not been attended to by the central colonial government but, in accordance with English principles of local government, by various officers in the local districts of the state who were regarded as local in character and who often at the same time discharged judicial functions." 29 This was also true of the succeeding state governors. Since all powers of the national government under the Continental Congress and Articles of Confederation were vested in Congress no concep- tion of the scope of executive or legislative power could be gained from this experience, though the need of a more efficient control of foreign relations was strongly felt and was one leading motive toward the formation of the Constitution. ^° ings, 185 1 ; Committee on Education, later a Board of Education, in 1856; Local Government Board, 1871 ; Board of Agriculture and Fisheries, 1889. (Medley, op. cit., p. 112 et seq.) 2' " The first definite recognition of this corporate responsibility (of the cabinet) may be said to date from 1782." (Medley, op. cit., p. 109.) 28 See Low, The Governance of England, N. Y., 1915, p. 301 ; Ponsonby, Democracy and Diplomacy, London, 191 5, p. 45 et seq. 29 Goodnow, op. cit., p. 71. 30 Farrand, op. cit., i : 426, 513. 238 WRIGHT— POSITION OF FOREIGN RELATIONS 85. A Fourth Department. Opinion of Constitutional Fathers. When the presidency was first considered in the federal conven- tion it was undoubtedly conceived as analogous to the colonial and state governors who exercised at that time neither foreign relations powers nor administrative powers but merely political powers in domestic affairs. ^^ The Senate was thought of as the repository of power in for- eign relations.^" As discussion advanced, however, the analogy of the Presidency to the British Crown was pressed upon the convention by such men as Hamilton and Gouverneur Morris,^^ while Madi- son referred to Montesquieu's conception of " executive power " as a definition of the President's powers.^* The view of these men which vested the President with political powers regarding foreign relations was, in the main, accepted, but to curb possible autocratic exercises of power by the President, the Senate was given a veto on treaties, while the power to declare war was left with Congress. The powers finally delegated to the President, and included in Article II of the Constitution as finally drafted by Gouverneur Morris, are mostly in the diplomatic fields. The powers of domestic administration which we now regard as the essential executive powers were not within the power of either the colonial governor or the British monarch in the eighteenth century and it was not intended that they should be within the President's discretionary control. The fathers intended that these 31 James Wilson, Farrand, op. cit., 1: 65, 153. 32 Ibid., 1 : 426. 33 Hamilton, Farrand. i: 288; G. Morris, Ibid., i: 513; 2: 104; Mercer, Ibid., I : 297 ; Sherman, Ibid., 1 : 97. 3* " A dependence of the Executive on the Legislature would render it the executor as well as the maker of laws; and according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. There was an analogy between the Executive and Ju- diciary departments in several respects. The latter executed the laws in cer- tain cases as the former did in others. The former expounded and applied them for certain purposes as the latter did for others. The difference be- ween them seemed to consist chiefly in two circumstances — i. The collective interest and security were much more in the power belonging to the Execu- tive than to the Judiciary department. 2. In the administration of the former much greater latitude is left to opinion and discretion than in the adminis- tration of the latter." Madison, Farrand, op. cit., 2: 34. POWER IN THE CONSTITUTIONAL SYSTEM. 239 powers should be exercised by officers largely under the detailed control of Congress and in the early acts organizing departments of government this plan was carried out. " In the United States," says Willoughby, " it was undoubtedly intended that the President should be little more than a political chief; that is to say, one whose functions should in the main consist in the performance of those political' duties which are not subject to judicial control. It is quite clear that it was intended that he should not, except as to these political matters, be the administrative head of the government, with general power of directing and controlling the acts of subordinate administrative agents." ^s Later, through the use of the implied or perhaps inherent power of the President to remove officers, and by a wide interpretation of the clause requiring the President " to take care that the laws be faithfully executed," originally indicating supervision rather than direction, the administrative powers of the President increased. At the same time the term " executive power " changed in meaning and although it still included the notion of political functions, its primary association was with the new administrative functions. Thus when the constitutional convention gave " executive . power " to the President, the foreign relations power was the essential element in the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto. This power ought to be distinguished from the power of the President as head of the administration which he exercises independently within the limits of congressional legislation and which by present usage forms the essential element in " executive power." Whether consideration is given to the works of theoretical writers known to the fathers, the precedents of England, the colonies or the Confederation, or the discussion of the Federal convention itself, we may conclude that The Federalist expressed the opinion of the constitutional convention as to the nature of the foreign relations power, so far as they had an opinion on that subject, when with prevision of the later significance of the term " executive power " it classified the treaty power as a fourth department of government ; ^^ 3^ Willoughby, op. cit., p. 1156. See also Goodnow, op. cit., p. 78. 36 The Federalist, No. 75 (Hamilton), Ford ed., p. 500. Hamilton later shifted to a defense of the wholly executive nature of the foreign relations power. Supra, sec. y6. 24Q WRIGHT— POSITION OF FOREIGN RELATIONS " The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society ; while the execu- tion of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties 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 nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems, therefore, to form a distinct depart- ment, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations point out the Executive as the most fit agent in those trans- actions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them." 86. A Fourth Department. Functional Classification. Functionally it would seem that the foreign relations pov^er, which both frames and carries out foreign policies, both contracts and meets international responsibilities, is essentially different from either the legislative power, which frames domestic laws and policies, or the executive power which administers domestic laws and policies. According to the terminology of Professors Good- now ^" and other writers on administrative law the conduct of foreign relations involves both " politics " and " administration " in external affairs and is distinct from either " politics " or " administration " in internal affairs. 87. A Fourth Departiuent. Practice. In practice the control of foreign relations has differed from the control of either legislation or domestic administration. While the President has suggested legislation in messages to Congress he has not as a rule taken a position of active leadership in the formulation of domestic policy. The initiative has been with the committees of Congress. The President's discretion is closely limited by law enforceable in the courts. It is true the President controls administrative officials through his removal power. He instructs officials as to the method of executing the laws under au- 3" Goodnow, op. cit., p. 666, and Willoughby, op. cit., p. 1156. POWER IN THE CONSTITUTIONAL SYSTEM. 241 thority given him by Congress and sometimes he even supplements legislation by instructions or regulations of a general character not specifically authorized.^* But he must always act w^ithin the con- fines of an ever-increasing mass of congressional legislation. Congress has described the pov^ers of officials and the methods of administration in considerable detail and the President, or rather his subordinates, are forced by the courts to observe such legislation. As legislation of this character increases in mass and detail, and as the practices and methods of permanent services become fixed by tradition as well as law, the President's discretion as head of the administration becomes reduced. His functions in this capacity tend to assume a purely supervisory and ministerial character. In foreign relations, however, the President exercises discretion, both as to the means and as to the ends of policy. He exercises a discretion, very little limited by directory laws, in the method of carrying out foreign policy. He has moved the navy and the marines at will all over the world. He has exercised a broad discretion in issuing both standing regulations and instructions and special in- structions for the diplomatic, consular, military and naval services. Though Congress has legislated on broad lines for the conduct of these services it has descended to much less detail than in the case of services operative in the territory of the United States. In the foreign affairs the President, also, has a constitutional discretion as the representative organ and as commander-in-chief which can- not be taken away by Congress and because of the exterritorial character of most of his action, his subordinates are not generally subject to judicial control. But more than this he has initiated foreign policies, even those leading to treaties and those leading to war, and has generally actively pushed these policies when the cooperation of other organs of government is necessary for their carrying out. Though Congress may by resolution suggest policies its resolutions are not mandatory and the President has on occasion ignored them. Ultimately, how- ever, his power is limited by the possibility of a veto upon matured policies, by the Senate in the case of treaties, by Congress in the case of war. 3^ Goodnow, op. cit., pp. 47, 75. 242 WRIGHT— POWER TO MEET RESPONSIBILITIES. 88. The Foreign Relations Department. Conclusion, In foreign affairs, therefore, the controlling force is the reverse of that in domestic legislation. The initiation and development of details is with the President, checked only by the veto of the Senate or Congress upon completed proposals. In domestic legis- lation on the other hand, the initiative and drafting of details is with Congress, checked by the President's limited veto upon com- pleted bills. In practice it seems possible to distinguish four great departments of government, not only according to their functions, but also according to their organization and methods. The legis- lative power is vested in Congress with a limited presidential veto. The foreign relations power is vested in the President with an absolute senatorial or congressional veto. The executive power is vested in the President acting independently within the limits of detailed congressional legislation defining the power and procedure of administrative officials. The judicial power is vested in the courts acting independently within the narrowly defined limits of procedure and jurisdiction defined by the common law and congres- sional legislation. CHAPTER X. The Power to Meet International Responsibilities. 89. The Law of International Responsibility. The principles determining the responsibility of states under in- ternational law have not been fully formulated and such formula- tion has proved difficult because of the divergencies of practice which have sometimes resulted from differences in national power. Borchard has given the best survey of the subject and the following statement is based largely on his work.^ I. Acts of Government Organs. The state is responsible for tortious acts committed by executive, diplomatic, naval, military, and superior administrative officers of 1 Borchard, Diplomatic Protection of Citizens Abroad, p. 177 et seq. See also Hall, International Law (Higgins), pp. 226-232; Oppenheim, Int. Law, i: sec. 148 et seq. For definition of "responsibility" see infra, sec. 141. WRIGHT— POWER TO iMEET RESPONSIBILITIES. 243 the central government or local subdivisions unless plainly outside of- their functions and promptly disavowed. For such acts by inferior administrative officers, the state is responsible only if there is evidence either express, by authorization of a superior officer or of the law, or tacit, by the failure to afford redress or to punish the offending officer, that it sanctioned the act.- Judicial errors are not in themselves torts, though the courts may involve the interna- tional responsibility of the state if they fail to apply international law or deny justice.^ The state is also responsible for the authorization of acts violative of international law, or treaty, or unreasonably discrimi- natory, by constitutional provision, legislative act, executive or ad- ministrative decree, or judicial decision of central or local de jure authority.* The promulgation of such constitutional provision, statute, ordinance or decision, if sufficiently concrete to raise a presumption that international law will be violated, is a ground for immediate protest. Other states are not obliged to await the actual commission of an act in violation of their rights.^ 2. Acts or Omissions of Individuals within State Jurisdiction. The state is responsible for the nonfulfillment of contractual obligations made by private individuals or by public officers, ultra vires, and for tortious acts committed in its jurisdiction by private individuals, inferior officers or any officers acting without authority, only in case its courts " deny justice " or executive and administra- tive officers fail to exert " due diligence " in the maintenance of order and enforcement of international law and treaty.^ The de- finition of " denial of justice " involving an investigation of the adequacy of municipal law remedies and the degree of their ob- servance in the particular case and of " due diligence," involving the establishment of criteria applicable to mob violence, insurrec- 2 Borchard, op. cit., pp. 189-192. 3 Ibid., p. 195. *Ibid., p. 181. ^ See Ambassador Bryce to Secretarj' of State Knox, February 27, 1913, Diplomatic History of the Panama Canal, 65th Cong., 2d sess., Sen. Doc, No. 474. p. 1 01, supra, sec. 15. *5 Borchard, op. cit., pp. 183, 213, 283. As to two meanings of expression " denial of justice," see ibid., p. 335. PROC. AMER. PHIL. SOC. VOL LX., Q, MARCH 9, I922. 244 WRIGHT— POWER TO MEET RESPONSIBILITIES. tion, war and neutrality, has proved the most difficult branch of the subject of responsibility. In other cases of responsibility the gov- ernment itself is at fault and the responsibility of the state is direct and immediate. In the present case the original fault is not by the government, and the state is responsible indirectly or vicariously and only after municipal law remedies have been exhausted.'^ 3. Non-fulfillment of Obligation. The state is responsible for the non-fufillment of contractual obligations made by any legislative, executive or administrative organ acting within legal authority derived from a de jure govern- ment or generally recognized de facto government of the state as a whole, and for the non-performance of acts required by interna- tional law. Contractual obligations made under authority of po- litical subdivision of the state or under authority of local de facto governments, or de facto governments which never attain general recognition, do not involve an international responsibility unless the state received a benefit therefrom.* The question of whether force may be used to compel the payment of public contract debts (in- volved in the Drago Doctrine and II Hague Conventions 1907) relates to the remedy and not to the legal responsibility.® The state is responsible for the reparation which treaty or in- ternational law may impose, in case of failure to meet any of the foregoing responsibilities. 90. State Power to Meet International Responsibilities. Extensive powers for the employment of military force, the rais- ing and appropriation of money, the administration of justice and criminal law, and the organization and administration of public services are given to the national government by the Constitution. Are these powers sufficient to meet all present and possible inter- national responsibilities? The states originally had full power to meet international responsibilities except as restricted by their own constitutions and they retain that power except as expressly or im- pliedly limited by the Federal Constitution. The delegation of '^ Ibid., p. 180. See also Hall, op. cit., p. 226. Oppenheim, loc. cit., origi- nated the expression "vicarious responsibility" in this connection. 8 Borchard, op. cit., p. 184. 9 Ibid., pp. 286, 308. WRIGHT— POWER TO MEET RESPONSIBILITIES. 245 power to the national government does not of itself deprive states of concurrent power, unless the power is by nature exclusive.^" The express prohibition of treaty-making and of agreement-making with- out consent of congress prevents them from extraditing criminals without express authorization by congress or treaty. Justice Taney held in 1839 ^bat extradition belonged " exclusively to the Federal Government " and the action of Governor Jenison of Vermont in issuing a warrant for the arrest of one Holmes charged with mur- der in Canada was " repugnant to the Constitution of the United States." ^1 However, the states still have power to meet many international responsibilities involving action within their own borders. Thus the jurisdiction of state courts usually extends to many cases involving the enforcement of treaty provisions such as those according civil rights, rights of property and inheritance to resident aliens, and in such cases, under the Federal Constitution they are obliged to apply the treaty as the supreme law of the land. State courts usually also have jurisdiction under common law to give justice to aliens in civil cases and to punish many offenses against the law of nations such as libels and conspiracies against foreign governments. The state executive ordinarily has power to employ the militia to preserve order and accord aliens within the state's territory the protection required by international law and treaty and state legislatures gen- erally have power to pass acts for the punishment of offenses against international law.^^ 91. National Power to Meet International Responsibilities. Does the national government have power to take over the entire burden from the states? Authorities say yes, and have rested on three theories. The argument drawn from the assumed enjoyment by the national government of sovereign powers with respect to matters transcending state limits has been discussed and found want- ing.^^ Repudiating this argument, Willoughby says: ^* 10 Cooley V. Board of Port Wardens, 13 How. 294. 11 Holmes v. Jennison, 14 Pet. 540, 579 (1840) ; Moore, Digest, 4: 242. ^^ Infra, sees. 98, no, 136. ^^ Supra, sec. 71. 1* Willoughby, op. cit., p. 64. See also ibid., p. 451. 246 WRIGHT— POWER TO MEET RESPONSIBILITIES. " Starting from the premise that in all that pertains to international rela- tions the United States appears as a single sovereign nation, and that upon it rests the constitutional duty of meeting all international responsibilities, the Supreme Court has deduced corresponding federal powers." This argument seems equally untenable. It commits the fallacy of deducing powers from responsibilities which Professor Wil- loughby himself denounced later in the same book.^^ The supreme court has not relied on such an argument but on specific delega- tions of power by the Constitution ;^*^ " As all official intercourse between a State and foreign nation is pre- vented by the Constitution and exclusive authority for that purpose given to the United States, the National Government is responsible to foreign nations for all violations by the United States of their international obligations, and for this reason Congress is expressly authorized to define and punish . . . oflfenses against the I'aw^ of nations." In addition to the clause here referred to, the " necessary and proper " clause accords the national government powers adequate to meet all international responsibilities, derived from valid acts or commitments made by national organs.^' Q2. Theory of Inherent Executive Pozver to Meet International Re- sponsibilities How is the power to meet international responsibilities distributed among the departments of the national government? Hamilton, Roosevelt and others have considered the President empowered to take measures for meeting all responsibilities by the first clause of Article II which vests him with " the executive power of the United States." " It v^^ould not consist with the rules of sound construction, to consider this enumeration of particular authorities" (in Article II), wrote Hamilton in the Pacificus Paper, " as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the cooperation of the Senate in the appoint- ment of officers, and making of treaties ; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The 15 See infra, sec. 93. i^U. S. V. Arjona,' 120 U. S. 479, 483; Moore, Digest, 2: 430. 1^ Infra, sec. 95. WRIGHT— POWER TO MEET RESPONSIBILITIES. 247 difficult}' of a complete enumeration of all the cases of executive authority would naturally dictate the use of general terms, and would render it improb- able that specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression em- ployed in the Constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government the expressions are, ' All legislative powers herein granted shall be vested in a Congress of the United States.' In that w^hich grants the executive power, the expressions are, ' The execu- tive power shall be vested in a President of the United States.' This enu- meration ought, therefore, to be considered as intended merely to specify the principal articles implied in the definition of executive power ; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free govern- ment. The general doctrine of the Constitution then is, that the executive power of the nation is vested in the President, subject only to the exceptions and qualifications which are expressed in the instrument." ^^ President Roosevelt affirmed belief in the same doctrine over a century later in his autobiography -P " I declined to adopt the view that what was imperatively necessary for' the Nation could not be done by the President unless he could find some' specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws. Under this interpretation of executive power I did and caused to be done many things not previously done by the President and the heads of departments. I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well- being of air our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition." As an illustration of the exercise of power " not explicitly given me by the Constitution " he cites the making and carrying out of the executive agreement with San Domingo whereby he took over the administration of her customs houses. ^° This view of executive authority has not been supported by writers of a more legalistic temperament : " The general grant of executive power to the President," says Goodnow, " meant little except that the President was to be the authority in the govern- ment that was to exercise the powers afterwards enumerated as his." ^i 18 Hamilton, in document quoted supra, sec. 78. 13 Roosevelt, Autobiography, pp. 388-389. 20O/>. cit., pp. 551-552. -1 Goodnow, op. cit., p. y^. 248 WRIGHT— POWER TO MEET RESPONSIBILITIES. " The true view of the Executive functions is," says President Taft, " as I conceive it, that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exer- cise. Such specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be of public in- terest, and there is nothing in the Neagle case and its definition of a law of the United States, or in other precedents, warranting such an inference." Later President Taft attacks the Roosevelt doctrine on practical grounds : " My judgment is that the view of Mr. Garfield and Mr. Roosevelt ascrib- ing an undefined residuum of power to the President is an unsafe doctrine and that it might lead under emergencies to results of an arbitrary character, doing irremediable injustice to private right. The mainspring of such a view is that the Executive is charged with responsibility for the welfare of all people in a general way, that he is to play the part of a Universal Providence and set all things right and that anything that in his judgment will help the people, he ought to do, unless he is expressly forbidden not to do it. The wide field of action that this would give to the Executive one can hardly :iimit." 22 ^g^. President's Duty to Execute the Laws. The responsibility of the President to " take care that the laws be faithfully executed " was held in the Neagle case^^ to confer power upon the President to authorize an individual to employ force for the protection of a federal justice. Here again we seem to find power derived from responsibility. If this doctrine were carried out and as the court said in this case, the term " laws " includes not only acts of congress and treaties but also "the rights, duties and obligations growing out of . . . international relations," a most in- admissible result would be reached. The President would be found to have power to declare war, pay out money, reduce the military establishment and perform all other acts necessary to meet interna- tional responsibilities. We must agree with Willoughby-'* that the doctrine of the Neagle case is " justified only in exceptional circum- 22 Taft, op. cit., pp. 140, 144. See. also Senatorial debate of 1831, quoted Corwin, op. cit., p. 59. 23 7;^ re Neagle, 135 U. S. i. 24 Willoughby, op. cit., pp. 1155. But see Goodnow, op. cit., pp. 47, 75, and Hamilton, quoted Corwin, op. cit., p. 15. WRIGHT— POWER TO MEET RESPONSIBILITIES. 249 stances " and " the obligation to take care that the laws of the United States are faithfully executed, is an obligation but confers in itself no powers. It is an obligation which is to be fulfilled by the exer- cise of those powers which the Constitution and Congress have seen fit to confer." The constitutional requirement in question means that the President shall exercise his power as commander-in-chief to move the forces, his power as head of the civil administration to direct and instruct diplomatic, consular and other officers within the scope of their powers as fixed by congress, his power to negotiate treaties, his power to receive diplomatic officers and his other powers given specifically by the Constitution or by congress in the manner most appropriate to execute the laws, including international law and treaties. It does not mean that he can supply means not pro- vided by law or take measure not within the scope of his delegated powers, however appropriate they might be for the meeting of inter- national responsibilities. Within his recognized powers, however, assuming the existence of the military, naval and civil organizations as provided by congress, the President has power to meet many in- ternational responsibilities without the aid of congress. 94. Power of Courts to Meet International Responsibilities. The federal courts are obliged by the Constitution to apply treaties as the supreme law of the land and have held that they must apply international law in appropriate cases, though subsequent express statutes will prevail in either case.-^ This, however, is an obligation and not a power. The view taken by the courts in a few early cases that from these duties they could derive jurisdiction to enforce international law even by criminal punishments has not prevailed.^^ The extension of federal judicial power by Article III of the Constitution : "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 of admiralty and maritime jurisdiction; to contro- versies to which the United States shall be a party; and to controversies . . . between a State or the Citizens thereof, and Foreign states, Citizens or Subjects " -5 Infra, sees. 106-108. 26 Infra, sec. 129. 250 WRIGHT— POWER TO MEET RESPONSIBILITIES. seems to give an opportunity for a full cooperation of the federal courts in meeting international responsibilities. This jurisdiction, however, with exception of the original jurisdiction of the Supreme Court which includes cases affecting diplomatic officers and consuls, is subject to regulation by congress. Thus in fact, aside from the recourses offered diplomatic officers and consuls to the Supreme Court, the federal courts can aid in the meeting of international re- sponsibilities only in so far as congress has specifically conferred jurisdiction upon them. Their jurisdiction has in fact been extended to most of the cases described in the Constitution and their appli- cation of international law and treaties, in prize cases, cases affecting foreign sovereigns, diplomatic, military and naval officers, cases affecting domiciled aliens, sojourning foreign vessels and others is an effective means of meeting many international responsibilities. Congress has defined a considerable number of crimes at interna- tional law, such as piracy, offenses against neutrality, offenses against foreign ministers and offenses against foreign currency, which are made punishable by the federal courts."^ 95. Power of Congress to Meet International Responsibilities. Aside from the exercise of specific powers, such as the appro- priation of money, the regulation of commerce, provision for the punishment of piracies and offenses against the law of nations, declaration of war, grant of letters of marque and reprisal, making of rules concerning capture, maintenance and regulation of an army and navy. Congress can " make all laws which shall be necessary and proper for carrying into execution . . . all . . . powers vested by this Constitution in the Government of the United States or in any department or officer thereof." This clause unquestionably con- fers power upon Congress sufficient to meet every possible inter- national responsibility. Accepting the doctrine of the Supreme Court that the exercise of sovereignty may be limited only by its own consent,'^ it follows that every international responsibility must ^~ Infra, sees. 113-118. 28 The Schooner Exchange v. McFaddon, 7 Cranch 116, quoted with ap- proval in the Chinese Exclusion Cases, 130 U. S. 581 (1889). See also infra, sec. 138. WRIGHT— POWER TO MEET RESPONSIBILITIES. 251 have originated in a constitutional exercise of power by some organ of the national government, either through positive action or tacit recognition. Thus responsibilities founded on treaty originate in a valid act of the treaty power, responsibilities founded on arbitral decisions originate either in a valid act of the treaty power or of the President, responsibilities founded on general international law originate in the tacit acceptance of that law by the terms of the Con- stitution-^ and by the President in continuing membership in the family of nations, as evidenced through the continued exchange of diplomatic officers. ^"^ In providing for carrying these powers into execution, therefore, Congress would be providing for meeting the international responsibilities they created. Thus if the President or the Courts are unable properly to meet any international respon- sibility it is not from a defect in the Constitution, but from failure of Congress fully to exercise its powers under the " necessary and proper " clause. Congress has in fact enacted many laws whose purpose is the enforcement of international law and treaty. ^^ It has never failed to make an appropriation when called for by treaty and has often made appropriations to satisfy claims based on inter- national law as determined by diplomatic correspondence or arbi- tration.^- 96. Power to Meet International Responsibilities by Treaty. An international responsibility may occasionally require conclu- sion of a treaty. Suffice it to say that the President, acting with advice and consent of two-thirds of the senate, is authorized to make treaties on all subjects suitable for international agreement.^^ 29 Willoughby, op. cit., p. 1018, and Am. Jl. Int. Law, 2: 357. 30 Maine, Int. Law, pp. 37-38, quoted in Moore, Digest, L : 7. ^"^ Infra, sees. 112-118. 32 Infra, sec. 149. 33 Infra, sec. 173. 252 WRIGHT— POWER TO MEET RESPONSIBILITIES. CHAPTER XI. The Power to Meet International Responsibilities Through THE Observance of International Law. 97. Conditions Favoring the Observance of International Law. The responsibility of the nation for acts of government organs imposes a duty upon every organ to abstain from action in violation of international law or treaty. This responsibility will be met if every independent organ of government is careful to exercise its dis- cretionary power in accordance with this duty, consequently there can be no question of the poiver of the government to meet this responsibility. Is it probable that independent organs will recog- nize international law, rather than national policy, as a proper guide in the exercise of their powers? No organ is in fact wholly inde- pendent. The government is a complex organization, the action of each organ being to a certain extent influenced by that of others. We may, therefore, investigate the conditions which tend to assure the observance of international law and treaty by the various organs of government in the present state of public law. 98. Observance of International Law by the States. A state constitution or legislative provision in violation of cus- tomary international law is valid unless in conflict with a Federal constitutional provision or an act of Congress as would usually be the case. However, it appeared in 1842 that the criminal laws of New York made no exception in favor of persons entitled to im- munity under international law and the United States had no means of relieving Alexander McLeod from the operation of those laws, al- though the Secretary of State admitted the responsibility to do so under international law. Congress has power to pass legislation assur- ing respect for international law by the states and such legislation was passed soon after this incident.^ If a state law disregards a treaty it is void. The courts both federal and state are obliged to apply treaties " anything in the Constitution or Laws of any State to the Contrary notwithstanding." - Thus state confiscation acts were held lAct of Aug. 29, 1842, Rev. Stat, sec. 753. See Moore, Digest, 2 : 24-30. 2U. S. Constitution, Art. VI, sec. 2. WRIGHT— POWER TO MEET RESPONSIBILITIES. 253 void as in violation of the treaty of peace with Great Britain of 1783 and many other state statutes discriminating against ahens have been similarly invalidated.^ 99. Observance of International Law by the Constitution. If the Constitution proves in any respect in violation of inter- national law there is no recourse except to the amending process, but in view of the generality of its provisions, a conflict, incapable of reconciliation by interpretation, is not likely to occur. The courts have held that they must interpret the Constitution in accord with international law if possible and thus have protected the immunities of diplomatic officers against the constitutional clause guaranteeing the accused a right " to have compulsory process for obtaining wit- nesses in his favor." ■* The i8th amendment will probably be held to permit the customary exemption from search of the baggage of diplomatic officers. 100. Observance of International Law by Congress. The observance of international law and treaty by Congress de- pends upon the discretion of that body. An act of Congress if con- stitutional is valid within the United States even though in direct violation of international law or treaty as was illustrated by the Chi- nese exclusion act of 1888. In spite of the protests of China, the act remained in effect. The " It must be conceded," said the Supreme Court, " that the act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplemental treaty of 1880, but it is not on that account invalid or to be restricted in its enforcement'. . . . The question wrhether our government was justified in disregarding its engagements with another nation is not one for the determination of the courts. . . . The court is not the censor of th* morals of the other departments of the Government." ^ 3 Ware v. Hylton, 3 Dall. 199. On this case see Crandall, op. cit., pp. 154-160. H. Sf. George Tucker, Limitations of the Treaty Making Power, Boston, 1915, has been led by what J. B. Moore calls an " appre- hensive" interpretation of the Constitution {Pol. Sci. Qiiar., 32: 320) to take a novel view of this case. Crandall, loc. cit., effectively deals with this interpretation. See also infra, sec. 50. * See cases of Dubois and Comancho, Moore, Digest, 4 : 643-645 ; Wright. Am. Jl. Int. Lazv, 11 : 5; and supra, sec. 45. 5 Chinese Exclusion Cases, 130 U. S. 581 (1889). 254 WRIGHT— POWER TO MEET RESPONSIBILITIES. same was true of the act of Congress exempting American vessels from tolls in the use of the Panama Canal. Great Britain consid- ered the act in disregard of the Hay-Pauncefote treaty but it re- mained effective until repealed by Congress itself, at the solicita- tion of President Wilson whose judgment " very fully considered and maturely formed " found it " in plain contravention of the treaty." ^ Congress has sometimes made express exception from the oper- ation of statutes out of deference to international law. Thus, the various acts describing rules of navigation " shall not be construed as applying to ships of war or tO' government ships." '^ The se- lective draft act of 1917 as amended August 31, 1918, exempted for- eign consular and diplomatic officers from registration and resident aliens except declarants of co-belligerent nationality from service.^ The Supreme Court is given only such jurisdiction of cases against foreign diplomatic officers " as a court of law can have consistently with the law of nations."^ An act of 1790 expressly exempts resi- dent " public ministers," their " domestics and domestic servants " and their " goods and chattels " from all legal process,^" and an act of 1888 excepts " the ownership of legations, or the ownership of residences by representatives of foreign governments or attaches, thereof " from the general law prohibiting alien landholding in the District of Columbia.^^ Frequently Congress has shown respect for treaties by excepting persons entitled to treaty privileges from the operation of statutes or by making the operation of the statute de- pendent upon denunciation of the treaty according to its own terms. Thus certain provisions of the La Follette seaman's act were to re- main in abeyance until conflicting treaties should be properly ter- 8 Message, March 5, 1914, Cong. Rec, 51: 4313. ^ Act Aug. I, 1912, sec. 5, 2>7 Stat. 242, Comp. Stat'., sec. 7994. 8 Acts July 9, 1918, and Aug. 31, 1918, amending act May 18, 1917, sees. 4, 5, Comp. Stat., sec. 2044b, e. »Rev. Stat., 687, Judicial Code of 191 1, sec. 233, 36 Stat., 1156, Comp. Stat., sec. 1210. 1° Rev. Stat., 4063, Comp. Stat., 761 1. " Act March 9, 1888, 25 Stat. 45, Comp. Stat., sec. 3501. WRIGHT— POWER TO MEET RESPONSIBILITIES. 255 minated ^- and acts of Congress for the restoration of captured prizes,^^ for the imposition of discriminatory tarififs or import pro- hibitions" and for levying tonnage duties^'^ and for prohibiting ahen landholding in the territories and the District of Columbia^® were not to apply in conflict with existing treaties. loi. Checks upon Congressional Disregard of International Law. Although disregard of international law and treaty by Congress is prevented primarily by that body's own sense of international re- sponsibility, the Constitution does provide certain checks against such disregard. The treaty-making power may conclude a treaty or provide for an arbitration either of which would supersede an ear- lier act of Congress. Thus the act of Congress of 1889 as judi- cially interpreted extended American jurisdiction in Behring Sea, one hundred Italian miles from shore, in disregard of the principle of international law limiting maritime jurisdiction to the marine league. This act was held to be superseded by the arbitration based on a treaty with Great Britain of 1892.^'^ The President's veto has proved a check upon congressional dis- regard of international responsibilities. Since the President feels the pressure of foreign nations he is likely to be more sensitive to violations of international law than the houses of Congress. Thus President Hayes vetoed the first Chinese exclusion bill as in viola- tion of the Burlingame treaty of 1868. After explaining some con- stitutional objections to the act he referred to the " more general considerations of interest and duty which sacredly guard the faith of the nation, in whatever form of obligation it may have been given," and concluded " in asking the renewed attention of Congress to this bill, I am persuadad that their action will maintain the public 12 Act March 4, 1915, 38 Stat. 1184, sees. 16, 17; Comp. Stat., sec. 8382a. b. 13 Re\-. Stat., sec. 4652 ; Comp. Stat., sec. 8426. 1* Underwood tariflF, Oct. 3, 1913, sec. IV, j, sub. sees, i, 2, 7; 38 Stat. 195, 196; Comp. Stat., 5305, 5306, 531 1. According to sec. IV, b, 38 Stat. IQ2, the Cuban reciprocity treaty of 1902 was unaffected by the tariff. 15 Rev. Stat., sec. 4227 ; Comp. Stat., sec. 7820. 16 Act March 3, 1887, 24 Stat. 476, March 2, 1B97, 29 Stat. 618, Comp. Stat., sees. 3490, 3498. "La Ninfa, 75 Fed. 513, 1896. 256 WRIGHT— POWER TO MEET RESPONSIBILITIES. duty and the public honor." ^® President Arthur vetoed the second Chinese exclusion bill for similar reasons. ^^ The President may also use his powers of persuasion upon Congress to cause the re- peal of an act in disregard of international law or treaty as did President Wilson with success in the Panama Canal tolls contro- versy.^° The courts are bound by acts of Congress, but said Chief Jus- tice Marshall, " an act of Congress ought never to be construed to violate the law of nations if any other possible construction re- mains." ^^ With this principle Marshall construed the broad juris- diction over offenses at sea conferred by various acts of Congress as confined to American vessels or vessels within American juris- diction as defined by international law.^^ It seems that the court neglected an opportunity to apply this principle in the Behring Sea cases of 1887, a neglect which may have been partly responsible for the expensive and futile arbitration later entered into.^^ In the case of American Banana Co. v. United Fruit Co., however, the supreme court applied the principle by interpreting the Sherman Anti-Trust Act, though general in terms, as applying only within the jurisdic- tion of the United States as defined by international law.^* 102. Observance of International Law by the Treaty-Making Power. The President and Senate ought not to make treaties in disre- gard of the rights of third state under international law or earlier treaties and have not often done so. Frequently treaties have ex- pressly excepted the rights of third states under existing treaties or 18 Richardson, op. cit., 7: 519-520. 19 Message, April 4, 1882, ibid., 8: 112. 20 Supra, note 6. 21 Murray v. The Charming Betsey, 2 Cranch 64, 118, 1804. 22 U. S. V. Palmer, 3 Wheat. 610, 1818; U. S. v. Pirates, U. S. v. Klintock, U. S. V. Holmes, 5 Wheat. 144, 152, 184 200, 412, 1820. 2^ Infra, sec. 107. 24 " All legislation is prima facie territorial, words having universal scope, such as every contract in restraint of trade, . . . will be taken as a matter of course to mean only every one subject to such legislation, not all that' the legislator may subsequently be able to catch." American Banana Co. V. United Fruit Co., 219 U. S. 347, 1909. See also Sandberg v. McDonald, 248 U. S. 185, Am. Jl. Int. Law, 13: 339. WRIGHT— POWER TO MEET RESPONSIBILITIES. 257 general international law. Thus the Hague Conventions on war and neutrality by their own terms " do not apply except between contracting powers and then only if all the belligerents are parties to the Convention." ^^ American arbitration treaties have usually excepted from the scope of obligatory arbitration cases " concerning the interests of third parties " and Article 25 of the Jay treaty with Great Britain of 1794 expressly provided that " nothing in this treaty contained shall ... be construed or operate contrary to former and existing public treaties with other sovereigns or states." If there is a conflict, however, the later treaty is valid as municipal law until superseded by another treaty or an act of Congress.^® But, as in the case of acts of Congress, courts attempt to con- strue treaties in accord with the rights of third states. Thus they gave a very narrow construction to the special privileges in Amer- ican ports given to French privateers and war vessels by the treaty of 1778, out of respect for the British right to demand from a neutral state impartiality in regulating the use of its ports.^^ 103. Observance of International Law by the President. The President might recognize a state or government or an ac- quisition of territory in disregard of international law, or proclaim neutrality in desregard of a treaty of alliance or wrongfully inter- vene in a foreign state, and his act would be followed by the courts.^^ There is no guarantee that the President will exercise his discretionary powers in accord with international law and treaty, except his own sense of international responsibility and a fear of a possible impeachment.^'* Congress has passed laws defining and limiting the purposes for which the army, navy and militia may be 25 See also League of Nations Covenant, Art. 20. 26Bolcher v. Darrell, Fed. Cas. 1607, 1795; The Phoebe Ann, 3 Dall. 319. See also Wright, Conflicts between International Law and Treaties, Am. Jl. Int. Law, 11: 566 et seq. (July, 1917). z'^ The Phoebe Ann, supra. Wright, op. cit., pp. 574-S ; Moore, Digest, 5: 591-598. ^^ Infra, sec. 107. 29 Impeachment lies for moral and political offenses as well as crimes in the legal sense. Willoughby, op. cit., p. 1124. See also Corwin, John Mar- shall and the Constitution, p. 78. 258 WRIGHT— POWER TO MEET RESPONSIBILITIES. used, but the validity of such legislation, except as applied tu the militia, has been questioned. ^° 104. Observance of International Lazv by Military and Civil Ser- vices. Usually, however, the President is obliged to act through serv- ices which are subject to control by acts of Congress and judicial processes. Congress has provided for the organization of the diplomatic, consular, naval, military and administrative services but has not generally attempted to regulate their conduct in detail. A few statutory regulations are designed to assure observance of international law by public officers of which may be mentioned that forbidding ministers to give information relating to the affairs of the foreign state to which they are accredited except to the De- partment of State/^ that forbidding administrative officers from serving process on resident diplomatic officers and others entitled to immunity under international law,^^ that forbidding the injury or destruction of prizes or maltreatment of those on board by naval forces,^^ and that requiring the restoration of recaptured prizes originally the property of neutral individuals on the principle of reciprocity.^* These services are regulated in detail by executive regulations and instructions, which, though issued by and subject to alteration by the President, in fact furnish a fairly permanent law for their guidance. These regulations have usually enjoined a strict ob- servance of international law and treaty. The " Diplomatic In- structions," " Consular Regulations," " Rules of Naval Warfare " and " Rules of Land Warfare," each a volume officially issued from time to time, are largely codifications of international law and treaty provisions. ^^ The permanent army regulations forbid armed forces 2° Infra, sec. 125. 31 Act Aug. 18, 1850, Rev. Stat., sec. 1751. 32 Rev. Stat., sec. 4063, Comp. Stat., sec. 761 1. 33 Articles for Government of the Navy, Rev. Stat., sec. 1624, Arts. 6, li, 12. See also Rev. Stat., sec. 4617, Comp. Stat., sec. 8397, and Wright, En- forcement of International Law through Municipal Law, pp. 183 et seq. 3* Rev. Stat., sec. 4652, Comp. Stat'., sec. 8426. 35 See Wright, op. cit., p. 68. WRIGHT— POWER TO MEET RESPONSIBILITIES. 259 passing into foreign territory without license, and army ofificers are required to observe proper formalities in dealing with the rep- resentatives of foreign governments.^*^ The permanent navy regu- lations require naval commanders " scrupulously to respect the territorial authority of foreign civilized nations in amity with the United States," to observe local regulations on entering foreign jurisdiction, to exchange the proper salutes when meeting foreign public vessels, to refuse asylum to criminals, slaves and political refugees while in foreign ports, to observe strict neutrality in wars to which the United States is not a party, and " when the United States is at war, the Commander-in-Chief shall require all under his command to observe the rules of humane warfare and the principles of international law." ^^ Treasury regulations have re- quired customs officials to respect the immunities of diplomatic officers. ^^ The diplomatic and consular regulations are enforced by the President's disciplinary control and power of removal and by statu- tory provisions for bonding and criminal liability enforced by the courts. ^'^ Military and naval regulations and instructions are en- forced by courts martial whose jurisdiction, however, is largely con- fined to the statutory articles of war, and by military commissions.*" The federal courts, in exercising prize jurisdiction, exercise a con- siderable control over the navy in time of war. They not only return captured vessels and cargoes not liable to condemnation under international law,*^ but decree damages against naval officers for illegal captures.*^ They exercise a similar jurisdiction over captured vessels in time of peace, and may thus prevent illegal 36 Army Regulations, 1913, sees. 398, 407, 889, eh. 3; Digest of Opinions of Judge Ad. Gen., 1912, Rowland ed., pp. 90, 106. 3'' Navy Regulations, 1913, sees. 1502, 1633-35, 1645-47. Naval com- manders are allowed some discretion under these regulations. See note at head of Chap. 15, Navy Reg., 1913, p. 159, r. For case in which Navy regulations were enforced against a commander see Moore, Digest, i : 240- 241. See Wright, o/>. cit., 68, 126, 177, 213. 38 Moore, Digest, 4 : 676. 39 Wright, op. cit., p. 69. *o Navy, see Rev. Stat., sec. 1624, Arts. 22, 24, 26, 38, and Wright, op. cit. 41 The Nereide, 9 Cranch 3S8; The Paquette Habana, 175 U. S. 677. *2 Little z'. Barreme, 2 Cranch 170. PROC. AMER. PHIL. SOC, VOL. LX., R, M.\RCH 9, I922. 260 WRIGHT— POWER TO MEET RESPONSIBILITIES. seizures upon the high seas or in foreign territorial waters by vessels of the navy or revenue cutter service.*^ In such cases, however, the courts sometimes refuse relief on the ground that the question is political/* Although the courts exercise less control of the army than of the navy in time of war, yet they may give relief in case mili- tary action violates property rights protected by international law. Thus in Mitchell v. Harmony*^ the court applied international law to determine the right of military officers to confiscate enemy property in the occupied territory of Mexico and in Brown v. the United States*^ the court refused to confiscate enemy property in American territory holding that international law regarded such confiscation with disfavor and the court could not permit it unless authorized by an express act of Congress. In other cases the courts have held that the President's power in conducting war is limited by interna- tional law and any action he may authorize contrary to that law is void. Congress alone can authorize military methods conflicting with international law and as we have seen the courts will not presume such a conflict.*^ ^^ La Jeune Eugenie, 2 Mason 409, 1822; Rose v. Himeley, 4 Cranch 241; Hudson V. Guestier, 6 Cranch 281, 1810; The Marianna Flora, 11 Wheat, i, 1826; The Antelope, 10 Wheat. 66, 122, 1825; La Ninfa, 75 Fed. 513, 1896. ** Ship Richmond v. U. S., 9 Cranch 102, 104, 1815 ; Davisson v. Seal- skins, 2 Paine 324 ; Moore, Digest, 2 : 364-365, and supra, sec. 107. 45 Mitchell V. Harmony, 13 How. 115. 4*5 Brown 2>. U. S., 8 Cranch no. See also McVeigh v. U. S., 11 Wall. 259, 1870, in which the court relaxed the rule which permits an alien enemy no status in court and permitted him to defend, and Wright, Am. Jl. Int. Law, II : 19. *7 Mitchell V. Harmony, 13 How. 115; Miller v. U. S., 11 Wall. 268; Fleming v. Page, 9 How. 603; Willoughby, op. cit., p. 1196, says: "With respect to the persons and property of the enemy, however, he (the military commander) is subject only to the limitations which the laws of war, as determined by international usage, supply, and for violations of these he is responsible only to the military tribunals." But on page 1212 he says: " Indeed, the President, in the exercise simply of his authority as commander- in-chief of the army and navy, may, unless prohibited by congressional stat- ute, commit or authorize acts not warranted by commonly received principles of international law." Sutherland, however {op. cit., p. 71), says: "The usages and laws of war alone, and not the Constitution of the United States, fix the limits " of the President's authority in conducting military op- erations. See also British case of the Zamora, L. R. 1916, 2 A. C. 77, holding an order in council contrary to international law void; Wright, Am. Jl. Int. Lazv, 11:2, and supra, sec. 47. WRIGHT— POWER TO MEET RESPONSIBILITIES. 261 105. Observance of International Law by the Courts. Judicial action may give grounds for international complaint in case justice is denied to aliens by the courts in civil or criminal trials and in case international law or treaty are not applied in cases affecting aliens or foreign governments.^* The guarantees of " due process of law " to all persons in the United States by the Vth and XlVth amendments are applicable respectively against the national and state governments, and in both federal and state courts. To- gether with other more specific constitutional guarantees relating especially to criminal trials, they seem to assure aliens a procedure and an absence of unreasonable discrimination in the law applied, sufficient to prevent a "denial of justice" as understood in inter- national law. However, the alien may feel greater confidence in federal than in state courts because of the decreased chance of local prejudice. Under present statutes he is entitled to bring action against citizens in civil cases in the federal district court if over $3,000 is in contro- versy or if " for tort, only in violation of the laws of nations or of a treaty of the United States." *^ Ambassadors and consuls of foreign governments are entitled to bring suits originally in the Supreme Court, though they may also sue in the state courts. They may be sued, however, only in the federal courts, and diplomatic officers only in the Supreme Court and then only so far as the law of nations permits.^'' Any alien not resident in the state may have an action brought against him in a state court, removed to a federal district court if it is of a type which might have originated in that court. If " from prejudice or local influence he will not be able to obtain justice " in the state court, he may have any suit removed.'"'^ Any alien may also have the case removed : " In any civil suit or criminal prosecution commenced in any State court for any cause whatsoever," if he " is denied or can not enforce in the judicial tribunals of the State, or in the part of the State where such suit *" Borchard, of^. cit., p. 335. 4" Judicial code of 191 1, sec. 24, pars, i, 17, 36 Stat. 1091, 1093. 5° Ibid., sec. 24, par. 18, sec. 233 ; sec. 256, par. 8. ^^ Ibid., sec. 28. 262 WRIGHT— POWER TO MEET RESPONSIBILITIES. or prosecution is pending, any right secured to him by any law providing for the equal civil rights ... of all persons within the jurisdiction of the United States.'" ^2 Finally, any person who can show a federal court under habeas corpus that he is entitled to immunity under international law or treaty may be released from the state court. ^^ io6. Courts Apply International Lazv and Treaties as Part of the Law of the Land. The courts regard international law as part of the law of the land and apply it in suitable cases. " International law," said Justice Gray, " is a part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly pre- .sented for their determination. For this purpose, where there is no treaty, .and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations ; and, as evidence ■of these, to the works of jurists and commentators, who, by years of labor, research, and experience, have made themselves peculiarly well ac- ■quainted with the subjects of which they treat. Such words are resorted to ■by judicial tribunals, not for the speculations of their authors concerning "what the law ought to be, but for trustworthy evidence of what the law really is." ^^ This principle has been applied in admiralty and prize cases ; ^^ in cases involving the immunities of sovereigns, diplomatic officers, public vessels, military persons, consuls, etc. ; ^^ in cases involving the limits of jurisdiction, especially in boundary rivers, bays, etc. ; ^^ in cases involving the status of aliens and especially alien enemies ; ^^ in cases involving the rights of persons in newly acquired terri- tory ; ^^ and in cases involving the privileges and responsibilities of •^2 ijjid., sec. 31. 53 Supra, note i. s*The Paquette Habana, 175 U. S. 677. See also Willoughby, op cit., 1014-1018. 55 Ibid., and also The Nereide, 9 Cranch 388. 56 The Exchange v. McFaddon, 7 Cranch 116; Underbill z'. Hernandez, 168 U. S. 250. 57 The Appollon, 9 Wheat. 362. 58 McVeigh v. U. S., 11 Wall. 259, 1870; Watts z'. Unione Austriaca de Navigazione, 248 U. S. 9 (igiS). 59 U. S. V. Percheman, 7 Pet. 51, 51; Villas z: City of Manila, 220 U. 'S. 345, 1911. WRIGHT— POWER TO MEET RESPONSIBILITIES. 263 neutrality, war and insurgency.'^*' Under the terms of Article VI of the Constitution treaties are the supreme law of the land and after proclamation are applicable by all courts, state and federal. 107. Tliis Principle not Applicable to Political Questions. The principle, however, that courts apply international law and treaty in appropriate cases is subject to certain modifications. Thus if the controversy involves " a political question " the courts hold that they must follow the decision of the political organs, ir- respective of international law and treaty.**^ But no definite line has ever been drawn between principles of international law and treaty provisions which are of a political character and those which are of a legal character. In such matters as the annexation or cession of territory, °- the recognition of insurgency,''^ belliger- ency,^* new governments,*'^ new states,"" the termination of treaties,"'^ and of war,®* the courts ordinarily follow the decisions of the politi- cal organs. Sometimes, however, no definite decision has been given by those organs. In such cases, the courts, holding that they " have no more right to decline the jurisdiction which is given than to usurp that which is not given," "'-' have investigated facts and ^*^ The Santissima Trinidad, 7 Wheat. 283 ; The Three Friends, 166 U. S. I ; The Appam, 27 Sup. Ct. 2,37- 61 Crandall, op. cit., 364-370; Willoughby, op. cit., 999-101 1; Moore, Di- gest, 1 : 245, 744. 62 Jones V. U. S., 137 U. S. 202, 212-213, 1890; Williams v. Suffolk In- surance Co., 13 Pet. 415; Foster v. Neilson, 2 Pet. 253; In re Cooper, 138 U. S. 404; U. S. V. Reynes, 9 How. 127. 63 The Three Friends, 116 U. S. i, 63, 1897; Kennett v. Chambers, 14 How. 38. 6*U. S. V. Palmer, 3 Wheat. 610; The Divina Pastora, 4 Wheat'. 52; The Santissima Trinidad, 7 Wheat. 283; The Prize Cases, 2 Black 735. 6-' The Sapphire, 11 Walt. 164. 1870, Oetjen v. Central Leather Co., 246 U. S. 297, 1917, Ricaud v. American Metal Co., 246 U. S. 304, 1917. The recognition of a particular person as diplomatic representative of a foreign government is also a political question. Ex parte Baiz, 135 U. S. 403. 66 The Nereide, 9 Cranch 388, 1815; Cherokee Nation v. Georgia, 5 Pet. 1; Neeley v. Henkel, 180 U. S. 109, 1901. 6^ Doe V. Braden, 16 How. 635; Terlinden v. Ames, 184 U. S. 270; Willoughby, op. cit., 1007, infra, sec. 182. 68 The Protector, 12 Wall. 700. 1871. 6»/n re Cooper, 143 U. S. 472, 502-505, 1892; Moore, Digest, i: 744, infra, sec. 247. 264 WRIGHT— POWER TO MEET RESPONSIBILITIES. international law giving a decision thereon, always attempting, but sometimes without complete success, to avoid decision on questions of policy. Thus the Supreme Court decided upon the status of Pine Island near Cuba and upon the status of Cuban insurgents in 1896 on the basis of international law, generally known facts and various rather indefinite statements in executive proclamations and correspondence. '^° Very often international law is utilized by the courts to buttress opinions founded primarily on decisions by the political organs of government. Thus the Supreme Court not only held that the United States had taken possession of the island of Navassa by executive proclamation under an act of Congress but that under international law it was entitled to do so on the principle of dis- covery and occupation. '^^ Where international questions, even if of political significance, are susceptible of exact determination by appli- cation of international law the courts do not hesitate to settle them. Prize cases are of this kind, so also are cases involving the im- munities of sovereigns, diplomatic officers and public vessels. '- It seems that far from encroaching upon powers of the political departments of government the courts have if anything been over- cautious. It would seem that a decision founded squarely upon international law might well have been given in the first Behring Sea cases, and had such been done the United States might have avoided the expense of a protracted litigation and arbitration where from the first there was no reasonable legal defense. An act of 1868^^ had forbidden the killing of "otter, mink, marten, or fur- seal, or other fur-bearing animal, within the limits of Alaska terri- tory, or in the waters thereof." The Treasury Department in enforc- ing this provision acted upon a claim asserted by Russia in 1821 to ■'■0 Pearcy v. Stranahan, 205 U. S. 257 (1907); The Three Friends, 116 U. S. I. ^1 Jones V. U. S., 137 U. S. 202, 212. The British court of Queens Bench (Mighell V. Sultan of Jhore, 1894, i Q. B. 149, 158), however, thought the opinion of the appropriate political department incapable of examination and questioned the course pursued by Sir Robert Phillimore in the Charkieh (L. R. 4 A. and E., 59, 1873), in examining the history of Egypt since A. D. 638 to determine its status. See A. D. McNair, Judicial Recognition of States and Governments, British Year Book of International Law, 2 : 57. 66. ■^2 Supra, sec. 106. 73 Act June 17, 1868, Rev. Stat., sec. 1856. WRIGHT— POWER TO AIEET RESPONSIBILITIES. 265 a jurisdiction beyond the three-mile limit in Behring Sea/^ but when the question of definition came before Congress a bill de- finitely approving the extended jurisdiction was not passed, the act of 1889 merely asserting that the earlier statute should " include and apply to all the dominions of the United States in the waters of Behring Sea," thus leaving open the question of the extent of these waters/^ The district court in Alaska, however, affirmed by the Supreme Court, held that the political departments had decided for the wider jurisdiction and that Canadian vessels captured while seal fishing sixty miles from shore were liable.'" It would seem that under the circumstances, the courts might well have held the statutes to imply an invitation for judicial decision based on inter- national law. After the arbitration of 1893 ^'^^^ declared unequivo- cally for the three-mile limit, the Circuit Court of Appeals held that the act of 1889 must be interpreted accordingly."^ 108. This Principle not Applicable to Ca:es Covered by Written Law. Apart from political questions courts are bound by plain terms of the Constitution, by treaties, by acts of Congress, and by executive orders under authority thereof, in spite of principles of interna- tional law and earlier treaties. They, however, attempt to inter- pret such documents in accord with international law, frequently with success,'^ and they refuse to apply state constitutions and statutes in conflict with treaty. '" In general the courts do apply international law and treaty, and because of the opportunity for a careful consideration of the sources and reason of that law which their deliberate methods afford, they assure the application of international law in cases not covered by ^* Moore, Int. Arb., p. 769. 75 Act March 2, 1889, 25 Stat. 1099; Moore, Int. Arb., p. 765. 75 U. S. V. La Ninfa, 49 Fed. 575, 1891 ; In re Cooper, 143 U. S. 472, 502-505. 77 U. S. V. La Ninfa, 75 Fed. 513. As a result of the arbitration the United States paid Great Britain $473,151.26 as indemnity for the seizures. See Moore, Digest, i : 890-929, and Int. Arb., pp. 765-960. 78 Murray v. The Charming Betsey, 2 Cranch 64, and see Wright, Con- flicts of International Law with National Laws and Ordinances, Am. Jl. Int. Law, II: i et seq. (Jan., 1917). 78 Ware v. Hylton, 3 Dall. 199, and supra, note 3. 266 WRIGHT— POWER TO MEET RESPONSIBILITIES. written law. Through their powers of nulHfying state laws in con- flict with treaty and of interpreting acts of Congress and of the President, they minimize the prohability of disregard by other organs of the government. CHAPTER XII. The Power to Meet International Responsibilities through THE Enforcement of International Law. 109. "Due Diligence." The responsibility of the nation for acts or omissions of individ- uals within its jurisdiction requires all organs of government to use " due diligence " to preserve order and to prevent violations of international law and treaty by persons within its jurisdiction. While the responsibility discussed in the preceding chapter relates only to the conduct of public officials and hence will be met if officials consistently observe the limitations prescribed for them by international law and treaties in exercising their powers, this responsibility relates primarily to the conduct of private individuals. The conduct of public officials is, however, indirectly involved, inas- much as the nation will be responsible if they neglect proper meas- ures to compel individuals within their jurisdiction to observe these limitations. The government is supposed to enforce law and main- tain order with reasonable efficiency within its jurisdiction and is responsible for failure to do so. A lack of " due diligence " is the expression used to describe the degree of negligence which justifies a claim founded on failure to meet this responsibility. While it is the judicial and executive organs of government which operate directly on individuals, often these organs must be authorized to act by legislation or treaty. Consequently any of the departments may be obliged to exercise their powers if this responsibility is to be met. The decision of the Geneva Arbitra- tion Tribunal in the Alabama Claims case made this point clear. " The Government of Her Britannic Majesty," said the court, "can- WRIGHT— POWER TO MEET RESPONSIBILITIES. 267 not justify itself for a failure in due diligence on pleas of in- sufficiency of the legal means of action which it possesses." ^ Defining due diligence the Tribunal said : - "The due diligence referred to in the first and third of the said rules (of Article V of the Treaty of Washington) ought to be exercised by a neutral government in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obligations of neutrality on their part." The XIII Hague Convention of 1907 in Articles 8 and 25 practically repeated the first and third rules of the treaty of Washington but substituted the phrase " means at its disposal " for "due diligence." The drafting committee of the Hague Convention merely noted that " The expression due diligence, which has become celebrated by its obscurity, since its solemn interpretation, has been omitted." * Apparently no essential difiference in meaning was intended. " Means at its disposal " do not mean merely those provided by existing legislation but those which the legislature ought to provide. In spite of the committee's disparaging remark, the term " due diligence" has continued in usage.* no. Enforcement by the States. The states retain full power of criminal legislation except as expressly or impliedly limited by the federal Constitution. Before the Constitution the states' powers in this regard were almost ex- clusive and Congress urged them to provide for the punishment of offenses against the law of nations. In 1784 the court of oyer and terminer of Philadelphia found one DeLongchamps guilty of "a crime against the whole world " for committing an assault upon the Secretary of the French legation.^ The court declared the person of a public minister and his " comites " or household " sacred and inviolable." " Whoever," said the court, " ofifers any violence to him not only atTronts the sovereign he represents but also hurts the common safety and well-being of nations." The court found 1 Malloy, Treaties, p. 719. ^ Ibid., p. 718; Moore, Int. Arb., p 4082. 3 Scott, ed., Reports of Hague Conferences, p. 845. * Borchard, op. cit., p. 278. 5 Res Publica v. DeLongchamps, i Dall'. Ill; Moore, Digest, 4: 622. 268 WRIGHT— POWER TO MEET RESPONSIBILITIES. difficulty in awarding sentence and finally concluded " the defend- ant cannot be imprisoned until his most Christian Alajesty shall declare that the reparation is satisfactory." Apparently a de facto incarceration without formal sentence of imprisonment, which if given at all would have to be " certain and definite." seemed the only way of satisfying the dilemma arising from the court's theory that it was not only administering Pennsylvania law but also inter- national law and that in this case the latter left determination of the sentence to the offended king of France. This theory, derived from the claim by France of a right herself to punish offenders against her diplomatic representatives abroad, and supported by a similar claim of the Czar in the case of his Ambassador in London in 1708, is now obsolete. Since adoption of the Constitution, the enforcement of inter- national law has been largely undertaken by the national govern- ment and, where undertaken, the jurisdiction of federal courts has been made exclusive.*' This does not mean, however, that states are prohibited from making acts, violative of international law or treaty, offenses against their own sovereignty.' The grant of powers of criminal legislation to the National government by the Constitution or even the exercise of such powers by Congress does not in itself divest the states of power to punish similar offenses. States may cooperate with the United States in enforcing interna- tional law and treaty within their own boundaries so far as such action does not interfere with national action. They cannot, how- ever, perform acts for this purpose, which will be effective out- side their borders. Thus state authorities cannot extradite per- sons to foreign governments on the basis of national treaties,* unless expressly authorized thereto by the treaty.^ A few offenses against international law and treaty are still un- touched by national laws, and the states must be relied on. Thus ^Judicial Code of 191 1, sec. 256, pars. 1-4, 8. 7 Fox V. Ohio, 5 How. 416 (1847). 8 Holmes v. Jennison, 14 Pet. 540, 579 (1840); U. S. v. Rauscher, 119 U. S. 407, 414; Moore, Digest, 4: 240 et seq. ^ See Mexican treaty, 1899, art. 19; Moore, Digest, 4: 244. WRIGHT— POWER TO MEET RESPONSIBILITIES. 269 Secretary Bayard, after noting that national law did not punish "treason and sedition against foreign sovereigns," said:" " I may add, however, that if any persons in the State of Pennsylvania take measures to perpetrate a crime in a foreign land, such an attempt, coupled with preparations to effectuate it, though not cognizable in the federal courts, is cognizable in the courts of the state of Pennsylvania." Other powers of enforcement, still exclusively in state hands, no- tably that of protecting resident aliens, will l)e considered later. ^^ 111. Enforcement under the National Constitution. The National Constitution confers certain independent powers upon the executive and judicial branches for the enforcement of international law and treaties, but these powers are insufficient. The Constitution has, however, given Congress authority to provide adequate means of enforcement, especially in the power " to define and punish piracies and felonies committed on the high seas and offenses against the law of nations " and in the power " to make all laws which shall be necessary and proper for carrying into execu- tion the foregoing powers and all other powers vested by the Con- stitution in the Government of the United States or in any depart- ment or officer thereof," thus including the treaty power. ^- A. Enforcement by Legislative Action. 112. Congressional Resolutions before the Constitution. Even before the adoption of the Constitution Congress realized the necessity for legislation to prevent violations of international law. It resolved on May 22, 1779, that the United States would cause the " law of nations to be most strictly observed," and on November 23, 1781, recommended that state legislatures provide for the punishment of offenses relating to violation of safe conducts, breaches of neutrality, assaults upon public ministers, infractions of treaties, and " the preceding being only those offenses against the law of nations which are most obvious, and public faith and safety requiring that punishment should be coextensive with all crimes, 10 Moore, Digest, 2 : 432. ^^ Supra, sec. 120. 1- U. S. Constitution, art. i, sec. 8, cl. 10, 18. 270 WRIGHT— POWER TO MEET RESPONSIBILITIES. Resolved, that it be further recommended to the several states to erect tribunals in each state, or vest ones already existing with power to decide on offenses against the law of nations not contained in the foregoing enumeration." ^^ 113. Offenses against Persons Protected by International Law. By an act of September 24, 1789, the first Congress under the Constitution gave district courts jurisdiction of suits brought by aliens for torts " in violation of the law of nations or of a treaty of the United States," and the Supreme Court was given exclusive jurisdiction of suits against public ministers " as a court of law can have consistently with the law of nations." These provisions re- main unchanged in the present judicial code of 1911.^* An act of April 30, 1790, still in effect, prescribes criminal penalties for assaulting or serving out process against public ministers or their " domestics or domestic servants ... in violation of the law of nations." ^^ An act of August 29, 1842, passed after the McLeod case had shown the inability of the national government to release persons entitled to immunity under international law from state jurisdic- tion, gives federal courts jurisdiction to release on habeas corpus, persons claiming any right under treaty or a right "the validity and effect of which depends upon the law of nations." ^^ 114. Offenses Committed on the High Seas. The crimes act of April 30, 1790, provided for the punishment of various crimes committed on the high seas but the courts inter- preted this act in accord with international law, as confined to crimes committed by American citizens or in American vessels in all cases except piracy. ^^ The act was amended in 1819 so as to punish all persons guilty of " piracy as defined by the law of na- 13 Journ. Cong., 5: 161, 232; 7: 181, Ford ed., 14: 635, 914; 21: 1137. 1* I Stat. 76, sees. 9, 13 ; Rev. Stat., sec. 563, els. 16, 687 ; Jud. Code of 191 1, 36 Stat. 1087, see. 24, els. 17, 233. 15 I Stat. 117, sees. 25, 28; Rev. Stat., sees. 4062, 4064. 16 5 Stat. 539; Rev. Stat. 753- i^U. S. V. Palmer, 3 Wheat. 610; U. S. v. Klintock, 5 Wheat. 144, 152; Moore, Digest, 2: 956. WRIGHT— POWER TO MEET RESPONSIBILITIES. 271 tions." ^® These laws are embodied in the present criminal code of In the Scotia and other cases the court has recognized the inter- national navigation regulations as obligatory. ^° " Undoubtedly," said Justice Strong, " no single nation can change the law of the Sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of na- tions, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by a superior power, but because it has been generally accepted as a rule of conduct." These rules were adopted by Congress in an act of 1864. With modifications agreed upon in a conference of 1889, Congress again adopted them by an act of August 19, 1890, subject to the action of other powers. After protracted negotiations the rules were finally put into operation July i, 1897. The act of Congress has provided penalties against masters, pilots, and vessels in case of violation.-^ 115. Offenses against Neutrality. The first neutrality act was passed June 5, 1794, after it had been discovered that the President and courts lacked power effec- tively to enforce neutrality with their independent powers. The act as amended in 1797 and 1818 is still in effect, and is included in the criminal code of 1910.-^ Further amendments were made in 1915 and 1917.-^ These laws provide for punishment of American citizens accept- ing commissions while the United States is neutral, and for pimish- ment of any one recruiting for foreign belligerents in American 18 U. S. V. Smith, 5 Wheat. 153. 19 Criminal Code of 1910, sec. 290 et seq. 20 The Scotia, 14 Wall. 170, 1871. But see The Lottawanna, 21 Wall. 558, Willoughby, op. cit., pp. 1015-1017. ■•1 Act Sept. 4, 1890, sees, i, 2, 26 Stat 423; Comp. Stat., sees. 7979, 7980; June 7, 1897, sees. 3, 4, 30 Stat. 103; Comp. Stat. 7907, 7908; Moore, Digest, 2: 474. 22 Criminal Code of 1910, sees. 9-18. See also Fenwick, The Neutrality Laws of the United States, Washington, 1913, and Wright, The Enforcement of International Law Through Municipal Law in the United States, 1915, pp. 114 et seq. 23 Act March 4, 1915, 38 Stat. 1226; May 7, 1917, June 15, 1917, sees, i-io, 40 Stat. 221-223; Comp. Stat., sees. 10, 182. 272 WRIGHT— POWER TO MEET RESPONSIBILITIES. territory. Persons with unneutral intent fitting out and arming or augmenting the forces of vessels, or setting on foot military or naval expeditions or enterprises in American territory are also liable, as are persons taking out of the United States a vessel built or converted as a war vessel with knowledge that it is likely to reach the hands of a belligerent or aiding interned belligerent per- sons to escape. The acts give the President power to expel vessels from waters in which " by the law of nations " they ought not to remain, and to detain or prevent the departure of vessels " which by the law of nations or the treaties of the United States " are not entitled to depart. The President is authorized to use the land and naval forces " as he may deem necessary to carry out the purposes " of the neutrality laws. The acts provide for withholding the clearance from vessels suspected of using the territory " in violation of the laws, treaties or obligations of the United States under the law of nations," for bonding armed merchant vessels using American ports and for detention by customs officials of suspected vessels not bonded. They give district courts jurisdiction to restore prizes illegally taken in American waters, to decide proceedings for the forfeiture of vessels violating neutrality and for enforcing the criminal provisions of the act. It has been held that the law applies not only to acts in behalf of belligerents but also to acts in behalf of insurgents, though not to acts in behalf of recognized governments operating against insurgents.^* ii6. Offenses against Foreign Governments. An act of May i6, 1884, provided punishment for forging or counterfeiting foreign securities and the act was held to be within the power of Congress to punish ofifenses against the law of nations, though it contained no specific statement that the offense was of that character.-^ The counterfeiting of foreign coins has been made punishable by various acts since 1877.^^ By the act of August 11, 1848, superseded by the act of June 22, i860, the American Minister, in countries permitting extraterritorial 24 The Three Friends, 166 U. S. i (1897) ; U. S. v. Trumbull, 48 Fed. 99 (1891) ; Ex parte Toscano, 208 Fed. 938 (1913). 25 Criminal Code of 1910, sees. 156-162; U. S. v. Arjona, 120 U. S. 479. ^^ Ibid., sees. 162-173. WRIGHT— POWER TO MEET RESPONSIBILITIES. 273 jurisdiction by treaty, is authorized to try resident American citizens for felonies or insurrection against the government of such states. ^^ An act of April 22, 1898, amended on jMarch 14, 1912, provided for the embargo of arms and munitions to American countries pro- claimed by the President to be in a "condition of domestic vio- lence " and for criminal punishment of persons violating such em- bargo.^^ As has been noticed the neutrality laws have been utilized to prevent the giving of aid to insurgents against friendly govern- ments.-'' By the espionage act of June 15, 1917, conspiracy to destroy specific property in foreign territory is made punishable, as is having in possession property for use in aid of foreign governments " as a means of violating any of the . . . obligations of the United States under any treaty or the law of nations." ^° 117. Offenses Relating to International Boundaries. There appears to be a special responsibility to prevent acts near a frontier likely to injure the adjacent state, such as interference with running water, bounding or flowing into it, or the toleration of marauders, conspirators, or insurgents with designs on adjacent territory. ^^ By an act of 1902 Congress recommended an interna- tional commission to consider the use of Canadian boundary waters and by act of 1906, provided that such waters should only be di- verted on permits issued by the Secretary of War and that persons violating this provision should be subject to criminal punishment. ^^ By a treaty with Great Britain of 1909 (Art. VII), similar require- ments are made and their supervision put in charge of an interna- tional joint commission. A convention of 1889 with Mexico sev- eral times renewed, provided a commission for adjusting RSo Grande boundary difficulties and a convention of 1906 provided for the distribution of Rio Grande water for irrigation purposes. ^^ 2" Rev. Stat, sees. 4090, 4102 ; Comp. Stat. 7040, 7647 ; Moore, Digest, 1 : 613-616. 2830 Stat. 739; 2,7 Stat. 630; Comp. Stat. 7(i77-7(>7^- 29 Supra, note 24. 30 40 Stat. 226, sec. 5 ; 230, sec. 22. 31 Moore, Digest, 2: 481. 32 32 Stat. 373 ; 34 Stat. 627 ; Comp. Stat., sees. 9984, 9989, a-c. 33 Moore, Digest, 2: 434-445. 274 WRIGHT— POWER TO MEET RESPONSIBILITIES. Several protocols have been made for the suppression of marauders on the Mexican border and legislation providing for the embargo of arms to American countries in a condition of domestic violence was passed with particular reference to Alexico.^* Doubt- less under treaties and general laws, as well as the special acts referred to, the President has adequate power to meet responsibil- ities connected with international boundaries. ■ Ii8. Offenses against Treaties. A number of acts have been passed for preventing the violation of treaties by private individuals. An act of 1847 provided for the punishment of aliens committing piracy as defined by treaty. ^^ Various acts passed since 1808 for the punishment of slave traders seem to give adequate authority to prevent violation of the inter- national Slave Trade Convention. Acts passed in 1828, 1842 and 1862 and on other occasions were designed to enforce particular conventions for suppressing the slave trade and trade in liquor and arms with natives.^® An act of August 12, 1848, amended on June 22, i860, and June 6, 1900, provides for the extradition of persons as required by treaties. ^'^ An act of March 2, 1829, amended in 1855, provided for the return of deserting seamen as required by treaty on application of foreign consuls. ^^ This act, however, terminated upon denuncia- tion of the treaties as required by the La Follette Seaman's Act of March 4, 1915.^^ An act of April 14, 1792, superseded by acts of Augusts, 1846, and June 11. 1864, gives United States district Courts and United States commissioners power to enforce the awards, arbitrations or decrees of foreign consuls exercising jurisdiction in the United States as authorized by treaties.*" Among other acts of Congress imposing criminal penalties for infraction of treaties by individuals may be mentioned an act of ^■^ Supra, note 28, and Malloy, Treaties, etc., p. 1144 et seq. 359 Stat. 175; Rev. Stat. 5374; Criminal Code of 1910, sec. 305. 36 4 Stat. 276 ; 5 Stat. 623 ; Crandall, op. cit., p. 239. 3^ 9 Stat. 302 ; 12 Stat. 83 ; Rev. Stat., sees. 5270-5279 ; 31 Stat. 656. 3*4 Stat. 359; 10 Stat. 614; Rev. Stat., sec. 280; Crandall, op. cit., p. 233. 3938 Stat. 1 184, sec. 17; Comp. Stat., sec. 8382b; 10129. 40 13 Stat. 12; Rev. Stat., sec. 728; Jud. Code of 191 1, 36 Stat. 1163, sec. 27; Comp. Stat., sec. 1248; Crandall, op. cit., p. 234. WRIGHT— POWER TO MEET RESPONSIBILITIES. 275 February 22, 1888, for enforcing the International' Cable Conven- tion of 1885; an act of January 5, 1905, amended in 1910 in pur- suance of the Red Cross Conventions of 1864 (Arts. 27-28) and 1906, and the X Hague Convention of 1907 (Art. 29) applying them to naval warfare, providing punishment for use of the Red Cross symbol in advertising or in other unauthorized manner ; an act of August I, 1912, providing punishment for masters of vessels failing to give reasonable assistance in case of maritime accident as required by the general convention on salvage of 1910; an act of August 24, 191 2, providing punishment for persons taking seal in the North Pacific in violation of the Behring Sea sealing convention of 191 1 ; an act of August 13, 1912, for enforcing the international radio convention of that year by providing punishment for per- sons using radio without license and for operators wilfully inter- fering with radio communication or otherwise violating the con- vention, and an act of July 3, 19 18, providing for enforcement of the migratory bird treaty with Great Britain of that year.*^ In view of the abundance of congressional legislation giving effect to treaties and the apparently plain terms of the "necessary and proper " clause of the Constitution there would seem no room for questioning the power of Congress to pass such legislation. The power has, however, been questioned when treaties have called for legislation on subjects not otherwise within congressional power. The Supreme Court has answered with no uncertain voice. Said Justice Harlan in 1900: '^^ " The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in Section 8 of Article I of the Constitution, as all others vested in the Government of the United States, or in any department or officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President, by and with the advice and consent of the Senate, to insert in a treaty with a foreign power." In the trademark cases, the Supreme Court held Congress incom- petent to legislate on that subject, but, said Justice Miller:*^ *i40 Stat., c. 128; Comp. Stat., sec. 8837 a-c. *2 Neeley v. Henkel. 180 U. S. 109. 43 Trade Mark Cases, 100 U. S. 82 (1879). PROC. AMER. PHIL., SOC, VOL. LX., S, MAKCH 9, I922. 276 WRIGHT— POWER TO MEET RESPONSIBILITIES. " In what we have here said we wish to be understood as leaving un- touched the whole question of the treaty-making power over trademarks and of the duty of Congress to pass any laws necessary to carry treaties into effect." Finally in Missouri v. Holland the Supreme Court sustained the migratory bird treaty with Great Britain and the act of Congress to enforce it, although a similar act not based on treaty had shortly before been held unconstitutional.** "If the treaty is valid," said Justice Holmes, "there can be no dispute about the validity of the statute under Article i, sec. 8, as a necessary and proper means to execute the powers of the government." It is clear that by the multiplication of treaties the power of Congress may be extended into fields of criminal jurisdiction, heretofore entirely within state control. 119. General Empowering Statutes. Most of the acts of Congress referred to confer power upon the President or other executive authority to take preventive meas- ures and to use the military forces, but in addition general acts as early as 1792 have conferred on the President power to call forth the militia or use the army and navy " to execute the laws of the union, suppress insurrection and repel invasion." *^ 120. Sufficiency of Existing Legislation to Protect Resident Aliens. It appears that Congress has enacted legislation to prevent: (i) offenses against diplomatic officers and other persons especially pro- tected by international law; (2) offenses committed on the high seas, especially piracy and violations of the international rules of navigation; (3) offenses against neutrality; (4) offenses against the sovereignty or territory of foreign nations, especially the counter- feiting of their securities, conspiracy to destroy property within their territory, and insurrection against them; (5) offenses relating to international boundaries and (6) offenses against treaties, espe- cially those suppressing international nuisances such as the slave ** Missouri v. Holland, 252 U. S. 416 (1920). 45 Acts May 2, 1792, Feb. 28, 1795, March 3, 1807, Jan. 21, 1903 (Dick Act), and subsequent amendments, i Stat. 264, 424; 2 Stat. 443; 22 Stat. 776> sec. 4; 35 Stat. 400; 38 Stat. 284. See also supra, sec. 125. WRIGHT— POWER TO MEET RESPONSIBILITIES. 277 trade, aiding the administration of justice as by extradition, pro- tecting international resources such as fur seal and migratory birds, protecting international services such as the Red Cross, Submarine Cables, Radio Communication, etc. This legislation does not appear fully adequate to meet all inter- national responsibilities arising from the acts of individuals, the most notable lacuna being in the protection of resident aliens. Presidents Harrison, McKinley, Roosevelt and Taft each urged legislation authorizing criminal prosecution in the federal courts of persons violating the rights of aliens under treaties or international law and adequate executive authority to take preventive measures, but in view of the inroad such legislation would make upon the police jurisdiction of the states it has not been passed.^^ On sev- eral occasions the United States has been obliged to pay indemnities because of its inability under existing laws to exercise " due dili- gence " in this respect.*' The power of Congress to pass such legis- lation, at least for the protection of the rights of aliens guaranteed by treaty, cannot be questioned,*^ and it would seem that an ofifense against the rights of aliens under general international law would be an " offense against the law of nations " and so within the power of Congress. 121. Sufficiency of Existing Legislation for Punishing Offenses Against Foreign Governments. Offenses against the sovereignty and territory of foreign states are not fully covered by national law. Libels upon foreign states or sovereigns, conspiracy to promote insurrection or revolution in foreign states, or to assassinate the ruler of a foreign state do not appear to be punishable by national laws though they have been made the subject of international discussion and are indictable offenses in many countries. Some of these acts are punishable in state courts.*^ 46 Moore, Digest, 6 : 820 et scq. *7 Ibid. *^ Baldwin v. Franks, 120 U. S. 678; Corwin, National Supremacy, p. 286 ei scq.; Taft, The United States and Peace, 40 et scq., supra, sec. 49. *9 Moore, Digest, 2 : 430. 278 WRIGHT— POWER TO MEET RESPONSIBILITIES. It is not clear, however, just how far a nation is bound to sup- press such acts in its territory. Field lays down in his Interna- tional Code that : ^*^ " One who uses his asylum for prompting hostilities against a foreign country may be proceeded against under the law of the nation of his asylum, or may be surrendered to the nation aggrieved." It does not appear, however, that American law recognizes an inter- national responsibility either itself to punish such offenses or to aid the foreign government in punishing them.'^ As has been no- ticed very few offenses against foreign states are punishable in the federal courts. The counterfeiting of foreign securities is the most important exception. The statutes relating to insurrection and conspiracy to destroy property abroad have been enacted for national defense rather than for the enforcement of international law. The same is true of the acts of Congress providing for the exclusion and deportation of alien anarchists and for the punish- ment of persons acting while the United States is at war so as " to bring the form of government of the United States into contempt, scorn, contumely and disrepute." Such alien, sedition, and espion- age acts are for the protection of the United States rather than for the suppression of anarchy or sedition as an international crime. '^ President Roosevelt in 1901 urged that "anarchy be declared an offense against the law of nations through treaties among all civi- lized powers." This result has not been achieved, though a num- ber of American extradition treaties, concluded thereafter, ex- pressly exclude attempts against the life of the Head of a State from the category of political offenses. ^^ '^o Field, Int. Code, sec. 207, p. 86. 51 Moore, Digest, 2 : 430. 52 Alien Act, June 25, 1798 (for two years), i Stat. 570; Exclusion of seditious aliens, act Feb. 5, 1917, and expulsion of such aliens, act Oct. 16, 1918. Sedition act, July 14, 1798 (for two years), i Stat. 596; June 15, 1917, Title I, sec. 3, amended May 16, 1918, sec. i (for war period), 40 Stat. 353; Comp. Stat., sec. I02iii. See Abrams v. U. S., 250 U. S. 616 (1919). 53 Moore, Digest, 2: 434. See Treaties, Brazil, 1897, ratified 1903; Den- mark, 1902; Guatemala. 1903; Spain, 1904; Protocol, 1907; Cuba, 1904. WRIGHT— POWER TO MEET RESPONSIBILITIES. 279 122. Sufficiency of Existing Legislation in Aid of Foreign Criminal Justice. Nor has the United States held that there is any international duty to aid foreign criminal justice. Although Congress has pro- vided, in pursuance of a generally recognized duty of comity, for the execution by Federal courts of letters rogatory from foreign states requesting the taking of testimon}^ in " suits for the recovery of money or property,"' it has made no provision for the taking of testimony in criminal cases.^* The states also have generally re- fused to compel testimony for foreign criminal trials.^^ "The taking of testimony," said the Attorney-General of Pennsylvania, "by deposition for criminal cases is unknown to our system of jurisprudence, and section 9 of Article I of the Declaration of Rights in our Constitution provides that in all criminal prosecutions the accused hath the right to meet the witnesses face to face. I am, therefore, of the opinion that the courts of this Commonwealth are not competent to receive these letters rogatory and to enforce the testimony of this witness by deposition or answers to interroga- tories, to be used in the criminal cause." The same distinction has been recognized in reference to the execution of foreign judgments. In civil cases, the rule of reci- procity has been established by international comity, thus the fed- eral courts carry out the judgments of foreign courts which will reciprocate.^^ But not so with criminal judgments. The United States has never itself enforced a criminal judgment of a foreign state nor has it as a general practice turned over fugitives, accused or convicted of crimes in foreign courts, except on the express stipulation of treaty.^^ The only exception to the rule appears to be the case of Arguelles, who was extradited to Spain by President Lincoln in 1864, although no treaty required such action. ^^ The position of the United States has been that " both by the law and practice of nations, without a treaty stipulation, one government is not under any obligation to surrender a fugitive from justice to another government for trial," ^° and that " the President has no 5* Moore, Digest, 2: no. ^^ Ibid., 2: 112. 56 Hilton V. Guyot, 159 U. S. 113 (1895) ; Moore, Digest, 2: 217-224. ^"^ Moore, Digest, 2: no; 4: 245 et seq. 5* Ibid., 4 : 249. ^^ Mr. Buchanan, Sec. of State, to Mr. Wise, Sept. 27, 1845, Moore, Digest, 4: 246. 280 WRIGHT— POWER TO MEET RESPONSIBILITIES. power ' to make the delivery ' unless under treaty or act of Con- gress." ^° Congress has passed acts in pursuance of treaties of ex- tradition, but the opinion has been expressed that Congress might authorize extradition without treaty.^^ Since such a law, with the above stated theory, could not be justified as the " punishment of an offense against the law of nations " it is difficult to see where the power of Congress would come from. It has been held that the federal Constitution prohibits extradi- tion under state authority unless such procedure is expressly stipu- lated in treaty or act of Congress. This is due to the express pro- hibition of the states from treaty-making or agreement-making without the consent of Congress. *'- B. Enforcement by Action of the Treaty Power. J23. Treaties as a Basis for Executive and Judicial Action. Treaties are the supreme law of the land and it might seem tliat they would in themselves furnish sufficient authority for execu- tive or judicial enforcement of the obligations they impose. This is doubtless true of executive action. Courts have held that troops may be interned and persons extradited by executive authority on the basis of treaty alone.''" It has been held, however, that courts cannot exercise criminal jurisdiction or compel the extradition of fugitives unless Congress has passed enabling legislation.^* 124. Treaties as a Basis for Congressional Action. Treaty provisions requiring positive enforcement within Amer- ican jurisdiction have been of three kinds. Sometimes they state definite acts which the government must prevent. Thus the V Hague Convention of 1907 says, " a neutral power must not allow any of the acts referred to in articles 2 to 4 to occur on its terri- 60 Wirt, Att. Gen., i Op. 509, 521 ; Terlinden v. Ames, 184 U. S. 270, 289 (1902) ; Moore, Digest. 4: 248, 253. 61 Willoughby, op. at., p. 479. 62 Supra, sec. 90. 63£jr parte Toscano, 208 Fed. 938: U. S. v. Robbins, Fed. Gas. No. 16175 ; In re Metzger, 5 How. 176, 188; Crandall, op. cit., 230 et seq. 6* The Estrella, 4 Wheat. 298; The British Prisoners, i Wood, and Min. 66 (1845). WRIGHT— POWER TO MEET RESPONSIBILITIES. 281 tory." ^^ Sometimes treaties state the degree of diligence which the government must exercise to achieve a given result leaving it dis- cretion in determining the method to be used. Thus article III of the Chinese treaty of 1880 affirmed by article IV of the treaty of 1894 requires the United States to " exert all its powers to devise measures for the protection (of resident Chinese) 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." ^'^ Finally, treaties some- times merely require that the government endeavor to have legis- lation passed. Thus by article 2"/ of the Geneva convention of 1906:'^'^ " The signatory powers whose legislation may not now be adequate engage to take or recommend to their legislatures such measures as may be necessary to prevent the use, by private persons or by societies other than those upon which this convention confers the right thereto, of the emblem or name of the Red Cross or Geneva Cross, particularly for commercial purposes by means of trademarks or commercial labels. The prohibition of the use of the emblem or name in question shall take effect from the time set in each act of legislation, and at the latest five years after this convention goes into effect. After such going into effect, it shall be unlawful to use a trademark or commercial label contrary to such prohibition." This has been the usual form in general international conventions. Although the obligation of Congress to act is doubtless greater under treaties of the first form than the last, it would appear that the difference is wholly one of degree. Under any of the three forms, the United States will be responsible if it fails to exert the diligence required by the treaty, and in none of them is criminal prosecution possible in the United States without enabling legislation. ^5 See also Submarine Cable Convention, 1884, art. II. ^^ See also XIII Hague Convention, 1907, sees. 8, 25. 6^ See also African Slave Trade Convention, 1890, art. xii, and Treaty of Peace with Great Britain, 1783, art. V. President Cleveland recommended legislation prohibiting the sale of arms in central Africa as required by the former, in his message of December 4, 1893, but Congress has not acted. (Moore, Digest, 2: 471.) 282 WRIGHT— POWER TO MEET RESPONSIBILITIES. C. Enforcement by the President. 125. Independent Powers of the President. Although Congress has passed general laws giving the President power to use the military and naval forces and the militia to enforce the laws, suppress insurrection and repel invasion, and many special laws giving him power to use the forces for particular purposes, the President has always taken the view that these laws except as applied to the militia were unnecessary, and that as commander-in- chief and as chief executive, he has independent power to employ the army and navy and direct the civil administration in order to execute the laws and treaties of the United States. President Fill- more in response to a resolution of inquiry called attention to the different position occupied by the President with reference to the militia, which may only be called out as Congress shall provide, and to the army and navy of which the President is permanent com- mander-in-chief. As tO' the latter, he said : ^^ " Probably no legislation of Congress could add to or diminish the power thus given, but by increasing or diminishing, or abolishing altogether the army and navy." By an act of June 18, 1878, Congress made it unlawful and a penal offense : ^° " to employ any part of the Army of the United States as a posse comitatus or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress." This, however, does not affect President Fillmore's theory since he claimed nq power to use the army other than as " expressly author- ized by the Constitution." The court held in Martin v. Mott'*^ that the President could determine when the exigency existed for calling forth the militia as specified by Congress, and no power could review his action. It seems equally certain that he can determine when a ^8 Richardson, Messages, 5 : 105 ; Finley-Sanderson, The Executive, p. 214; supra, sec. 119. ^^20 Stat. 152, sec. 15; Comp. Stat., sec. 1902; Finley-Sanderson, op. cit., p 270. '0 Martin v. Mott, 12 Wheat. 19. WRIGHT— POWER TO MEET RESPONSIBILITIES. 283 proper constitutional occasion for using the army has occurred and is not hmited by congressional expressions in this regard. Certainly the opinions of the Supreme Court in the Debs and Neagle cases support this theory.'^ However, the issue is largely theoretic be- cause the delegations of authority actually made by Congress seem sufficiently broad to cover all probable exigencies. 126. President's Use of Military Forces. In practice the President has used the military forces in Amer- ican territory to enforce international law and treaty on many occa- sions. He has thus used them to enforce the protocols with Mexico requiring suppression of marauding Indians and others near the border ; to preserve order in case of mob violence as in the Chi- cago strikes of 1894 giving rise to the Debs case, and to suppress nuisances on the high seas or in neighboring territory. The sup- pression of pirates in Amelia Island in 1817, of Indians in Florida by Jackson in 1819, and the pursuit of Villa in Mexico by General Pershing in 1916 are illustrations of action of the latter kind.'^ The most important executive use of military forces in American territory is of course that by President Lincoln on the outbreak of the Civil War. The militia were called out April 15, 1861, under authority of general laws and the army and navy employed before Congress had given express authorization."^ We may conclude that the President is endowed with sufficient power to employ the armed forces, whenever he believes it necessary in order to enforce any constitutional provision, treaty or act of Congress, or to suppress mob violence or insurrection likely to obstruct national services. 127. President's Direction of Administrative Action. Although the position of the President as chief executive does not carry with it power to create agencies for enforcing international 71 In re Neagle, 135 U. S. i ; In re Debs, 158 U. S. 564. See also Infra, sec. 222. "2 Moore, Digest, 2: 418-425, 435-446; 402-408; Am. Year Book, 1916, p. 79 et scq. For President's use of force to meet responsibilities outside of the territory see infra, sec. 151, and for his power to use force in general, infra, sees. 221-224. ■^3 Blockade was proclaimed April 19, 1861. The first act of Congress recognizing that war existed was on July 13, 1861.. Willoughby, op. cit., pp. 88, 1209. 284, WRIGHT— POWER TO MEET RESPONSIBILITIES. law and treaties (though such a suggestion is contained in the Neagle case), it has been held to confer a power of directing ad- ministrative action of the agencies actually existing through instruc- tions, practically enforceable by the removal power.'* Thus the President has been able to accord special police pro- tection to diplomatic officers and other foreigners entitled to pro- tection when necessary.'^ He has ordered the extradition of fugi- tives when required by treaty and the courts have sustained the action. Thus President John Adams extradited one Jonathan Robbins under the Jay treaty and was eloquently sustained in this action by Marshall, then in Congress. " The treaty," he said, " stip- ulating that a murderer shall be delivered up to justice, is as ob- ligatory as an act of Congress making the same declaration." The President's power was sustained in the case of the British Prisoners in 1845 3-iid in the Metzger case in 1847.'*' But in the latter case before the fugitive was delivered, the New York supreme court intervened and released the prisoner on habeas corpus, on the theory that the treaty was not executable without congressional legisla- tion."'^ This resulted in the act of 1848 providing for extradition.'^^ A similar view was expressed by Justice Catron in 1852'^ but in 1893 the supreme court through Justice Gray sustained the early position of Adams and Marshall. ^° " The surrender, pursuant to treaty stipulations, of persons residing or found in this country, and charged with crime in another, may be made by the executive authority of the President alone, when no provision has been made by treaty or by statute for an examination of the case by a judge or magistrate. Such was the case of Jonathon Robbins, under article 27 of the treaty with Great Britain of 1794, in which the President's power in this re- gard was demonstrated in the masterly and conclusive argument of John Marshall in the House of Representatives." ■^■i Infra, sees. 227, 230. ■^5 Moore, Digest, 4: 622 ct scq. ■^6 U. S. V. Robbins, Fed. Gas. No. 16175; The British Prisoners, i Wood, and Minn. 66; In re Metzger, 5 How. 176; Taft, Our Chief Magistrate, p. 87; Crandall, op. cit., p. 231. '■^/h re Metzger, i Barb. 248 (N. Y., 1847). 78 9 Stat. 302 ; Rev. Stat., sees. 5270-5279. "9/n re Kaine, 14 How. 103, iii (1852). 80 Fong Yue Ting v. U. S., 149 U. S. 698, 714 (1893) WRIGHT— POWER TO MEET RESPONSIBILITIES. 285 However, as statutes now make full provision for extradition, the question of the President's independent power is of merely specu- lative interest. The President has authorized the extradition of a fugitive in the absence of treaty in only one case, that of Arguelles extradited to Spain by President Lincoln in 1864, and the majority of authorities hold that he here acted in excess of power. Wil- loughby believes that Congress might authorize presidential extra- dition in the absence of treaty, but since international law does not require such extradition it is hard to locate the source of such a power of Congress. ^^ It was held by Justice Story that the President did not have power to authorize the carrying out of awards of foreign consuls based on treaty in the absence of congressional legislation.®- It would seem that by analogy to the case of extradition of fugitives, the President might authorize the return of deserting seamen on the basis of treaty provisions but no case involving the point seems to have arisen and legislation was early provided. It has been stated by Attorney General Cushing that there is no authority to return deserting seamen in the absence of treaty. As has been noted the statutes and treaties on this subject were both terminated by the La Follette Seaman's Act of 1915.^^ On August 4, 1793, Hamilton issued instructions to customs officials for the enforcement of neutrality and in the World War instructions for the supervision and censorship of radio stations, the detention of vessels suspected of carrying arms to belligerent war- ships and of submarines intended for sale to belligerents were based on independent executive authority.®* Subsequent statutes have authorized most of these instructions.®^ In the case of Ex parte ^1 Supra, sec. 122. 82 Moore, Digest, 2 : 298 ; 5 : 223. 8^ Cushing, Att. Gen., 6 Op. 148, 209; Moore, Digest, 4: 417-424; Crandall, op. cit., p. 233; supra, sec. 118. "^Am. State Pap., For. Rel. i: 140; Moore. Digest, 7: 8gi ; Richardson, Messages. 10: 86; Naval War College, International Law Topics, 1916, pp. no, 115; Am. JI. Inf. Law, 9: 177; Wright, The Enforcement of International Law, p. 122. 85 Supra, sec. 115. 286 WRIGHT— POWER TO MEET RESPONSIBILITIES. Toscano**' the Federal District Court held that insurgent Mexican troops entering the territory and interned according to provisions of the Vth Hague Convention, under executive authority, were entitled to no relief under constitutional guarantees. " Due process of law " had been given them through executive compliance with the treaty, which was itself " supreme law of the land." It appears that the President has considerable independent power to authorize military and administrative action when necessary to enforce treaties or statutes, but in view of the wide powers expressly conferred upon him by acts of Congress it is now seldom necessary for him to go outside of such express delegations. D. Enforcement by the Courts. 128. Early Assumptions of Common Law Criminal Jurisdiction by Federal Courts. In his first neutrality proclamation of April 22, 1793, President Washington stated that he had :*' "given instructions to those officers to whom it belongs to cause prosecutions to be instituted against all persons who shall within the cognizance of the courts of the United States violate the law of nations with respect to the powers at war or any of them." On the basis of this proclamation prosecution was brought against Gideon Henfield for aiding in fitting out and serving on a vessel for the use of France then at war with Great Britain. The United States circuit court of Pennsylvania, composed of Justices Wilson, Iredell and Peters, asked the Grand Jury to return an indictment against him for an offense against the law of nations. Although the Grand Jury refused to indict, the opinion of the court was clear that federal courts had jurisdiction to punish such offenses even though no express statute defined the offense or conferred the juris- diction. Justice Jay expressed a similar opinion in another charge to the Grand Jury and Attorney General Randolph asserted it in an official opinion.®^ ^^ Ex parte Toscano, 208 Fed. 938 (1913). 8^ II Stat. 753; Richardson, Messages, i : 157. 88 /n re Henfield, Fed. Cas. No. 6360, and ibid., p. 11 16; Am. State Pap., For. Rel., i : 151. WRIGHT— POWER TO MEET RESPONSIBILITIES. 287 Jurisdiction of crimes defined only by international law was also asserted in the case of United States v. Ravara (1793) in which the Genoese consul was indicted for sending threatening letters to the British minister.^^ This act was considered in violation of the diplomatic protection guaranteed to foreign ministers and hence a breach of the law of nations. Although the accused was found guilty, he was ultimately released on giving up his exequatur. In this case, however, international law was appealed to merely for a definition of the crime, since the circuit court had been given juris- diction of cases against Consuls by act of Congress.'"' 129. Federal Courts Have No Common Law Jurisdiction. Soon after, however, in United States z'. Worrall (1798), the criminal jurisdiction of the federal coui"ts was said to rest on stat- ute alone and this opinion was repeated in the Supreme Court in Ex parte Bollman (1807) and United States v. Hudson (1812).^^ Four years later the question was raised in a slightly different form in United States z'. Coolidge (1816). In the circuit court Justice Story had sustained an indictment for the forcible rescue by two American privateers of a prize on its way to Salem under a prize master, although no such crime was specifically defined by statute. Reasoning from the iith section of the judiciary act which gave federal circuit courts " exclusive cognizance of crimes cognizable under authority of the United States," he said : "The jurisdiction is not as has sometimes been supposed in argument over all crimes and offenses especially created and defined by statute. It is of all crimes and offenses ' cognizable under the authority of the United States,' that is, of all crimes and offenses to which, by the Constitution of the United States, the judicial power extends. The jurisdiction could not, therefore, have been given in more broad and comprehensive terms." Story's opinion, however, was not supported by his brother justice on circuit and on certification to the supreme court he was over- ^9 U. S. V. Ravara, 2 Dall. 297; Fed. Cas. No. 6122; Moore, Digest, 5: 65. '"' Infra, note 93. »iU. S. V. Worrall, 2 Dall. 384; Ex parte Bollman. 4 Cranch 75; U. S. v. Hudson, 7 Cranch 32; Willoughby, op. cit., p. 1031 ; J. B. Moore, Four Phases of American Diplomacy, 1912, p. 64; Wharton, Criminal Law, i, sec. 254. 288 WRIGHT— POWER TO MEET RESPONSIBILITIES. ruled.^^ However, though federal courts cannot assume jurisdic- tion either under common law or under such broad grants as that here in question or it may be added under treaty, they may exer- cise criminal jurisdiction over otTenses not specified by statute where jurisdiction has been expressly given them by act of Congress. Thus they may have jurisdiction because of the nature of the parties, in which case federal courts apply the criminal law of the state in which they sit.^^ 130. Federal Courts Have No Criminal Jurisdiction from Treaties Alone. The federal courts have refused to exercise jurisdiction over crimes defined by treaty until Congress has acted. They have fol- lowed the same opinion with reference to extradition. In the case of the British Prisoners,^* although asserting that where extradi- tion is required by " the supreme law of a treaty, the executive need not wait . . . for acts of Congress to direct such duties to be done and how," Justice Woodbury said for the circuit court : "If a treaty stipulated for some act to be done, entirely judicial ... it could hardly be done without the aid or preliminary direction of some act of Congress prescribing the court to do it and the form." At present the law is clear. The jurisdiction of federal courts, with exception of the original jurisdiction of the Supreme Court de- fined by the Constitution itself, is confined to that which Congress has expressly conferred and the only offenses cognizable are those defined by acts of Congress, or, in case jurisdiction exists because of the nature of the parties, those defined by the law of the state in which the court is sitting. It may be noted that extraterritorial courts, authorized by treaty and established by act of Congress, 92 U. S. V. Coolidge, Fed. Cas. 14857, and ibid., i Wheat. 415 (1816). 93 U. S. V. Ravara, 2 Dall. 297, Fed. Cas. No. 6122; Moore, 5 : 65 ; Tenn. V. Davis, 100 U. S. 257; Duponceau, op. cit., p. 34; Willoughby, op. cit., p. 1020. In the case of an indictment against the Russian consul Kosloff in 1815 the Pennsylvania court refused jurisdiction (Comm. v. Kosloff, 5 Serg. and RawIe S4S), and no action' was begun in the federal courts, although by statute they then had exclusive jurisdiction in cases against consuls. Du- ponceau. op. cit., p. 36; Moore, Digest 5: 66. 9* The British Prisoners, i Wood, and M. 66. WRIGHT— POWER TO MEET RESPONSIBILITIES. 289 have been given jurisdiction over offenses committed by American citizens within the country wherein the court exercises authority, if the offense is one defined by act of Congress or by common law as supplemented by regulations issued by the American minister in that country .^^ 131. Statutory Criminal Jurisdiction of Federal Courts. However, as has been noted, a considerable number of offenses against international law have been defined by Congress and the federal courts have been given cognizance of them. The statutes relating to the protection of diplomatic officers, to piracies and offenses on the high seas, to offenses against foreign governments or territory and to most offenses against treaties are always oper- ative. Those punishing offenses against neutrality, however, are operative only during the existence of foreign hostilities, the recog- nition of which belongs to the President. The President has usually issued a formal neutrality proclamation calling attention to the neu- trality laws,°"^ but the courts have held that the neutrality laws may be applied against insurgents who have in fact been recognized as such by the political departments of the government even if no such formal proclamation has issued : ^" " The distinction," said the Supreme Court, " between recognition of belligerency and recognition of a condition of political revolt, between recog- nition of the existence of war in a material sense and of war in a legal sense, is sharply illustrated by the case before us. For here the political department has not recognized the existence of a de facto belligerent power engaged in hostility with Spain, but has recognized the existence of insurrectionary war- fare prevailing before, at the time and since this forfeiture is alleged to have been incurred." 132. Admiralty Jurisdiction of Federal Courts. Although criminal jurisdiction must be given very specifically; by act of Congress, this is not true of admiralty jurisdiction. In order to enforce neutrality the courts have assumed jurisdiction to 93 Rev. Stat., sec. 4086; Moore, Digest, 2: 631. 96 Printed in Richardson, Messages, see index, " Neutrality," and Wright. Enforcement of Int. Law, p. 115. For those of World War see Naval War College, Int. Law Doc, 1916. p. 82. 9- The Three Friends, 166 U. S. (1897)- 290 WRIGHT— POWER TO MEET RESPONSIBILITIES. restore prizes in cases not covered by statute, and even before pas- sage of the first neutrality act,°^ under the general grant of ad- " In the absence of every act of Congress in relation to this matter, the court would feel no difficulty in pronouncing the conduct here complained of an abuse of the neutrality of the United States, and although in such cases the offender could not be punished, the former owner would, nevertheless, be entitled to restitution." So said the Supreme Court in 1819.^° Almost one hundred years later the same view was expressed by the Supreme Court in the case of the Appam : ^^° "The violation of American neutrality is the basis of jurisdiction, and the admiralty courts may order restitution for a violation of such neutrality. In each case the jurisdiction and order rests upon the authority of the courts of the United States to make restitution to private owners for violations of neutrality where offending vessels are within our jurisdiction, thus vindi- cating our rights and obligations as a neutral people." The federal courts also assume jurisdiction to enforce the gen- eral maritime law through admiralty actions in rem, even when no statute specifically governs the case. Thus in the case of the Bel- genland, the Supreme Court sustained the jurisdiction upon the libel of a Belgian steamer for running into and sinking a Norwegian barque in mid ocean. ^°^ "Although the courts will use a discretion about assuming jurisdiction of controversies between foreigners in cases arising beyond the territorial jurisdiction of the country to which the courts belong, yet where such con- troversies are communis juris, that is, where they arise under the common law of nations, special grounds should appear to induce the courts to deny its aid to a foreign suitor when it has jurisdiction of the ship or party charged. The existence of jurisdiction in all such cases is beyond dispute; the only question will be, whether it is expedient to exercise it." Although federal courts, under the general grant of admiralty jurisdiction, may take cognizance of all cases against vessels alleged to have violated international law, and decree confiscation, restora- miralty jurisdiction. 98 Glass V. The Betsey, 3 Dall. 6; Talbot v. Jensen, 3 Dall. 133. 9«The Estrella, 4 Wheat. 298, 311. 100 The Appam, 243 U. S. 124, 156 (1916). 101 The Belgenland, 114 U. S. 355. WRIGHT— POWER TO MEET RESPONSIBILITIES. 291 tion, salvage, or damages, this does not extend to criminal jurisdic- tion against persons.^"- As with offenses committed on land, so offenses at sea are only cognizable when specifically defined by stat- ute. The court has held, however, that the phrase " piracy as de- fined l)y the law of nations," is sufficiently explicit to give jurisdic- tion over this oft'ense.^°^ 133. Civil Jurisdiction of Federal Courts in Cases Affecting Aliens. Due diligence in the enforcement of international law requires that justice be assured to aliens in their claims against private indi- viduals arising within the jurisdiction whether resting on contract or tort. This does not mean that aliens are exempt from the law of the land with reference to such claims. It does mean, however, that (i) the law shall not be unreasonably discriminatory against them, (2) that courts exist and proceed in a manner to give them reasonable assurance of an impartial application of the law, and (3) that they are accorded opportunity to invoke the aid of the courts in settlement of their controversies. ^°* The constitutional guarantees of due process of law to all " persons " within the jurisdiction, aliens as well as citizens, as judicially interpreted and enforced against both state legislatures and Congress, seem to insure against unreasonably discriminatory laws.^*'^ These guarantees as well as the constitu- tional provisions designed to assure the independence of the courts, such as those giving security of tenure and compensation, together with the respectable traditions of common law judicial procedure, tend also to give confidence in a fair procedure.^°^ By permitting aliens to bring their suits against individuals before such courts, the United States will generally be exerting due dili- gence and no international claim can be made, whatever the decision of the court, unless the subject matter is controlled by international law. The state courts usually have common law jurisdiction and are open to both aliens and foreign states in all cases not made ex- 102 The Estrella, 4 Wheat. 298, 311. 103 U. S. V. Smith, 5 Wheat. 153 (1820). 104 Borchard, op. cit., pp. 330, 335; Moore, Digest, 6: 267, 280. 105 U. S. Const. Am. V, XIV. -^^^Ibid., Art. Ill, sec. i. PROC. AMER. PHIL. SOC, VOL. LX., T, MARCH II, I922. 292 WRIGHT— POWER TO MEET RESPONSIBILITIES. elusive in federal courts/"' but under constitutional and statutory provisions, the federal courts are also available in most cases. "The judicial power (of the United States) shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; — to all cases of ambassadors, other public ministers and consuls; — to all cases of admiralty and maritime jurisdiction; — to controversies . . . between a state or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls . . . the Supreme Court shall have original jurisdiction. In all other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."^°8 Except for the original jurisdiction of the Supreme Court the federal courts may only exercise this judicial power as expressly given by act of Congress. ^°^ Under present statutes ambassadors, public min- isters and consuls may bring any suit originally in the Supreme Court though they may also sue in the state courts.^^° Foreign states and aliens may bring suits against a citizen in the federal district court if over $3,000 is in controversy or if " for a tort only, in violation of the law of nations or of a treaty of the United States." ^^^ They may also bring suits against citizens under many special types of law, whatever the matter in controversy, such as suits within the admiralty and maritime jurisdiction, suits under the copyright, pat- ent, trademark, commercial, bankruptcy, immigration laws, etc.^^^ Also all suits in which a deprivation of constitutional right is claimed. ^^^ Even if they begin action in a state court, appeal lies from the highest state court to the Supreme Court of the United States if a right under the Constitution, an act of Congress, a treaty or any authority under the United States is claimed.^^* The courts are not ordinarily open to civil suits by one alien against another,^^' 10^ Mexico V. Arrangoiz, 11 How. Prac. i (N. Y., 1855) ; Scott, Cases on Int. Law, p. 170. 108 U. S. Const, Art. Ill, sec. 2. 109 ^x parte McCardle, 7 Wall. 506 ; Willoughby, op. cit., p. 976. 110 Judicial Code of 191 1, sec. 233, 36 Stat. 1156. '^''■'^ Ibid., sec. 24, pars, i, 17. 112 Ibid, sec. 24, pars. 3, 7, 8. 19, 22. 113 Ibid., sec. 24, pars. 12-14. '^^* Ibid., sec. 237, as amended Dec. 23, 1914, 38 Stat. 790, and Sept. 6, 1916, 39 Stat. 726. 115 Montalet v. Murray, 4 Cranch 46. WRIGHT— POWER TO MEET RESPONSIBILITIES. 293 though in admiralty actions in rem arising under the general mari- time law on the high seas, where the two aliens are of different nationality, such cases will usually be heard. ^^^ Cases against aliens may in many cases be removed to federal courts by the defendant if they are not brought there originally."". 134. Conclusion. The enforcing of international law and treaty in the territory of the United States requires executive and judicial action. The Pres- ident must utilize the military and administrative forces to preserve order and prevent violations of international law and treaty. The criminal courts must punish offenders against international law and treaty, and the civil courts must be prepared to afford relief to aliens with just claims against individuals. Under the American consti- tutional system the President has power to direct existing military and civil administrations, to enforce the laws and treaties and pre- vent obstructions of national services. However, the tendency ha& been to confine this action to circumstances in which it is author- ized by specific legislation. The state courts are bound to apply treaties and are open to civil suits by aliens but federal courts are dependent on statute for jurisdiction. The broad grants of jurisdiction in admiralty matters, suits involving treaties, and the civil rights of aliens, give the fed- eral courts an opportunity to afford relief in civil matters, but for enforcing criminal penalties for violations of international law or treaty, they must be endowed with specific power. Congress must legislate or the United States may find itself without the means nec- essary for exercising due diligence in enforcing international law and treaties within its territory. CHAPTER Xni. The Power to Meet International Responsibilities through Performance of National Obligations. 135. Nature of this Responsibility. The responsibility of the nation for the non-fulfillment of its obligations requires, not only that each organ of the government ^i^The Belgenland, 114 U. S. 355. ^1' Ibid., sees. 28, 31 ; supra, sec. 105. 294 WRIGHT— POWER TO MEET RESPONSIBILITIES. employ its powers to the fullest extent to perform all acts, which are specifically required by treaty, agreement, contract, or the oper- ation of international law, but also that organs exist with powers sufificient to assure a full performance. For acts of government organs, the responsibility of the nation is met if all organs confine their exercises of power within the limits of international law and treaty. For acts or omissions of individuals, the responsibility of the nation is met if all organs employ " due diligence " to enforce order and the observance of international law and treaty by persons within their jurisdiction. The present responsibility can be met only if organs exist competent and willing to execute specific obli- gations. 136. Performance of Obligations by the States. The states cannot perform national obligations. They cannot themselves contract treaty or political obligations with foreign na- tions. They may enter into contract with foreign individuals, or nations, as by sale of bonds or other securities,'^ but a failure to pay these would not involve a national responsibility so long as the -foreign bondholder has as favorable an opportunity to collect as ■.the domestic.^ Some of the states have established courts of claims in which they may be sued, though the general principle of the non-suability of sovereigns applies to them.^ While under the Xlth amendment states cannot be sued by foreign individuals in the fed- eral courts, there seems to be no constitutional bar to such a suit by foreign states. National statutes, how^ever, have not provided for such a jurisdiction and commentators doubt whether it could be exercised.* In case of mob violence in the states we have seen that the national government is responsible for a lack of due diligence, and 1 Infra, sec. 157. 2 Supra, sec. 89, pars. 2, 3. 3Willoughby, op. ctt., p. 1105; Wright, Enforcement of Int. Law, p. 103. 4 Willoughby, op. cit., p. 1060. In Cherokee Nation v. Georgia (5 Pet. i, 1831) jurisdiction was refused on the ground that the Cherokees were not a foreign nation, thus implying that if they had been jurisdiction would have WRIGHT— POWER TO MEET RESPONSIBILITIES. 295 this irrespective of remedies, such as action against counties or munic- ipahties, which the state law may give.^ " The ItaHan Govern- ment," wrote Baron Fava, ItaHan Ambassador, in reference to the lynching of three Italians in Erwin, Mississippi, in 1901, and in re- sponse to the American suggestion that Mississippi was responsible, " will not cease to denounce the systematic impunity enjoyed by crime, and to hold the federal government responsible therefor." ^ A. The Nature of National Obligations. 137. Obligations Founded on International Agreement. National obligations may arise either (i) from express agree- ment or (2) from the operation of general international law. Agreement of the nation may be evidenced by contracts with individuals by executive or military agreements, or by conventions or treaties. Any of these instruments if made by competent author- ity will bind the nation. Contracts or executive agreements usually require the performance of definite acts such as the payment of money, the movement of troops, the conclusion of a treaty, but con- ventions and treaties often state general principles of law for the guidance of individuals as well as specific obligations to be performed by public authorities. During the nineteenth century treaties have tended to be regulative, rather than political in character. Their predominant character has changed from that of political contracts to codes of law or administrative regulations providing for inter- national administration in a smaller or wider circle.' A similar distinction has been recognized by American courts, in classifying certain treaty provisions as " self-executing." Prac- tically this distinction depends upon whether or not the courts and existed. The only case between a state and an undoubted foreign nation is that of Cuba v. N. Car. (242 U. S. 665, 1917), but no opinion was given because of dismissal on motion of the plaintiff. See Scott, Judicial Settle- ment of Controversies between States of the American Union, 1919, pp. 105-106. 5 Supra, sec. 89, pars. 2, sec. 120. ^ Moore, Digest, 6 : 849. ^ Wright, Am. Jl. Int. Law, 13 : 243, 245. 296 WRIGHT— POWER TO MEET RESPONSIBILITIES. the executive are able to enforce the provision without enabling legislation. Fundamentally it depends upon whether the obligation is imposed on private individuals or on public authorities. " A treaty," said Chief Justice Marshall, " is in its nature a contract be- tween two nations, not a legislative act. ... In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial, department; and the legislature must execute the contract before it can become a rule for the courts." 8 Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative oflftcials in relation thereto are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered.^ However, many treaty provisions are difficult to classify. Thus a treaty regulating the taking of seal in a de- fined area of Behring Sea and specifically enjoining the governments concerned to enforce the regulation imposes a primary obligation upon individuals and might seem self -executing. But it also imposes a responsibility upon the government to prevent infractions and pun- ish violators. Extradition treaties are of similar character. They afTect primarily the individual fugitive from justice by withdrawing his right of asylum, but they also specifically require the government, to whose territory he has fled, to surrender him. In view of the constitutional principle that federal courts can only punish crimes defined by statute,^" such treaties are not self-executing in the United States, except in so far as executive action is sufficient to ® Foster v. Neilson, 2 Pet. 253, 314 (1829). See also infra, sec. 256. 9 Hauenstein v. Lynham, 100 U. S. 483; La Ninfa, 75 Fed. 513; The Phoebe Ann, 3 Dall. 319; Ex parte Toscano, 208 Fed. 938. There has been a question in the United States whether treaties regulating commerce and tariffs are of this kind. See infra, sec. 154. '^^ Supra, sec. 129. WRIGHT— POWER TO MEET RESPONSIBILITIES. 297 carry them out." They ordinarily require legislation to be effec- tively executed. In spite of this fact, the obligation of such treaties rests primarily upon individuals and the responsibility of the govern- ment is measured by the standard of " due diligence," whether or not the treaty specifies the steps which are to be taken in prevention and punishment.^- Thus such treaty provisions have been consid- ered in the preceding chapter. On the other hand certain treaty obligations are addressed solely to public authorities, of which may be mentioned those requiring the payment of money, the cession of territory, the guarantee of territory or independence, the conclusion of subsequent treaties on described subjects, the participation in international organizations, the collection and supplying of information, and direction of postal, telegraphic or other services, the construction of buildings, bridges, lighthouses, etc. It is with the power to perform such obligations that we are here concerned. 138. Obligations Founded on General International Law. Although all international law is said to rest ultimately upon the agreement of states,^^ in fact this agreement is assumed of prin- ciples established by long practice and custom or the concurrence of authoritative writers.^* International law imposes few if in fact any obligations requiring specific performance. It requires that states preserve order in their territory and exercise especial vigilance in such matters as the protection of diplomatic officers, the preser- vation of neutrality, the suppression of nuisances such as piracy. But here the state's responsibility is indirect. The law of neutrality requires that neutral states intern troops and vessels illegally in their jurisdiction and restore prizes illegally captured or brought within their jurisdiction, but these requirements are designed pri- marily as means for the enforcement of law against individuals in the neutral state's jurisdiction. Certain ceremonial observances such 11 Supra, sees. 125-127. ^' Supra, sec. 124. ^3 The Exchange v. McFaddon, 7 Cranch 116. ^* The Paquette Habana, 175 U. S. 677. See for sources of international law, Draft Code for an International Court, Art. 35, Am. Jl. Int. Law, Supp., 14: 379, Oct. 1920. and Wright, Miyxn. Law Rev., 5: 436. 298 WRIGHT— POWER TO MEET RESPONSIBILITIES. as exchanging salutes by public vessels, though customary, are really matters of courtesy rather than law. Doubtless good citizenship in the family of nations requires that states exchange diplomatic officers and cooperate in matters of world service; that they aid each other in the suppression of crime and administration of justice ; that they attempt to prevent war by offering mediation and suggesting arbitration ; but except as provided in treaty, international law does not require such acts.^^ However, in case international law or treaty is violated, inter- national law imposes the obligation of reparation. This may take the form of payment of money, cession of territory, the making of formal amends such as apology or salute of flag. Sometimes a de- mand has been made for the trial or delivery of a criminal in repa- ration, but it has been generally held that international law does not require such reparation. ^^ It is with the power to meet " claims " or demands for reparation and to perform specific obligations of contract, agreement and treaty that we are at present concerned. 139. The Determination of Obligations. The precise determination of national obligations, by the applica- tion of the principles and rules of international law and treaty to concrete facts, has always proved a difficult problem. It is a recog- nized common law principle that no one should be judge in his own case, and there has been judicial opinion in England to the efifect that even an act of Parliament infringing this principle would be in so far void.^'^ The same principle is recognized in the federal sys- tem of the United States and a jurisdiction is established to try cases between the states of the union.^^ So also in international law it has been recognized on occasion that treaties should be interpreted If* Hall, International Law (Higgins). pp. 56-60. 1^ Wright, Enforcement of Int. Law, pp. 94-100, supra, sec. no. 1^ Dr. Bonham's Case, 8 Co. Rep. 107a, 114a (1600); Day v. Savadge, Hob. 8s, 87 (1610) ; City of London v. Wood, 12 Mod. 669, 687 (1701); Thayer, Cases on Const. Law, 47 ct seq.; Hobbes, Leviathan, chap. 15, Every- man ed., p. 81. 18 U. S. Const., Art. Ill, sec. 2. WRIGHT— POWER TO MEET RESPONSIBILITIES. 299 not by each party according to its own opinion," but by judicial process,'" arbitration,-^ or agreement of the parties."^ However, there is another common law principle, that the state cannot be sued without its own consent. This principle is founded not only on the historical tradition that " the king can do no wrong " and on legal precedents, but also on practical grounds. ^^ "A sovereign," said Justice Holmes for the Supreme Court, "is exempt from suit not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." This consideration has led Hobbes, John Austin and others to conclude, starting from the premise that the state is the only source of law, that the state cannot be subject to law and consequently in- ternational law and treaties impose only moral obligations.^* Cer- tainly an attempt to apply the two common law principles referred to leads to an apparent contradiction. By the first the state must submit to suit, by the second it cannot be sued. 140. Justiciable and Non-justiciable Questions. In practice a partial reconciliation of the two principles has been reached through the consent of states to be sued or to submit to the decision of an international authority in certain types of cases. The distinction has been made between justiciable and non- justiciable questions. States have admitted that questions of the former type ought to be settled by impartial external authority and 1^ " Neither of the parties who have an interest in the contract or treaty may interpret it after his own mind." Vattel, Le Droit des Gens, i : 2, c. 17, sec. 265. See also Wright, Minn. Law Rev., 4: 29. 20 Wilson V. Wall, 73 U. S. 83, 84 (1867) ; Moore, Digest, 5: 208; Cran- dall, op. cit., p. 364. 211 Hague Conventions, 1907, arts. 38, 82; Treaties concluded by United States with Great Britain and other countries, 1908, art. i, Malloy, Treaties, 814; League of Nations Covenant, art. 13. 22 Crandall, op. cit., pp. 225, 387; Dalloz, Juris. Gen., Supt., t. 17 (1896), s. v. Traite Int. No. 14; Wright, Am. Jl. Int. Law, 12: 92. 23 Kawananako v. Polyblank, 205 U. S. 349, 353 (1907). 2* Hobbes, Leviathan, chap. 26, 2; Austin, Lectures on Jurisprudence, 5th ed., London, 191 1, i: 263, 278; Gray, Nature and Sources of the Law, 1909, pp. 77-81; Holland, Jurisprudence, nth ed., pp. 53, 365. 300 WRIGHT— POWER TO MEET RESPONSIBILITIES. have actually so settled them, while in the latter type of questions, they have tenaciously maintained the doctrine that the state cannot be sued and each has acted as judge in its own case.^' This distinction does not aid us to determine what questions are actually justiciable nor does the similar distinction often made be- tween legal and moral obligations. It is doubtless true, as President Wilson and Vattel before him pointed out, that when the element of judgment exists, the decision belongs to the conscience of the party alone, the obligation is moral, and hence the question is non- justiciable.^" But this does not tell us in what cases the element of judgment exists. Nor do we get farther along by the definition of non-justiciable questions, attempted in many general arbitrations, as questions involving " national honor, vital interests and independ- ence." ^' These general terms can be made as broad or limited as the inclination of the parties suggests in any particular case. Attempts to define non-justiciable questions have proved unsuc- cessful, but this does not mean that the distinction is worthless. The truth is that with the theory of national sovereignty, all national obligations, whether founded on treaty or general international law, are presumed to be moral obligations and hence non-justiciable.^^ But states have in the past consented to submit certain controversies to legal decision and by classifying these controversies we can dis- cover what types of dispute have actually been considered justiciable. We can thus by induction arrive at a definition of justiciable ques- tions and regard all others as non-justiciable. Such a definition of justiciable questions has been attempted in Article XIII of the League of Nations Covenant : " Disputes as to the interpretation of a treaty, as to any question of inter- national law, as to the existence of any fact which if established would con- stitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration." 25 Crandall, op. cit., p. 358. 28 President Wilson, Statement to Senate For. Rel. Committee, Aug. 19, 1919, Hearings, 66th Cong., ist sess., Sen. Doc. No. 106, p. 515; Vattel, Le Droit des Gens, Introduction, sec. 17. 2^ See Treaty U. S. -Great Britain, 1908, art. i, Malloy, Treaties, p. 814. 28 See Infra, sec. 142. WRIGHT— POWER TO MEET RESPONSIBILITIES. 301 141. The Obligation of Treaties and International Law. Treaties are presumably made to be kept. '* It is an essential principle of the law of nations," asserted the London protocol of 1871, "that no power can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers by means of an amicable arrangement." ^^ The same principle was emphasized by the scrap of paper incident of 1914 and implies that treaties should be interpreted by impartial authority. Clearly if international law deserves the name, its obligations must be of a legal character and controversies relating to them must be justiciable. ^° Most text-writers recognize the distinction be- tween obligations of international law and requirements of interna- tional courtesy and comity. ^^ In the latter, an element of judgment is reserved, the obligation is " imperfect " or moral, and contro- versies relating to them are non-justiciable, but not so with the former. In practice this distinction necessarily exists, because by definition,^^. international law consists only of those rules and prin- ciples for the infraction of which nations have been accustomed to make formal international claim or protest, and hence for the settle- ment of which they are not content to rely on the conscience of other states. But though treaties and international law both impose obligations of a theoretically legal character, yet their interpretation is generally a question for determination by national organs in first instance. According to our classification, international law and treaty impose responsibilities which may require (i) mere observance by public organs, (2) enforcement against individuals within the jurisdiction or (3) the performance of specific acts by public organs. Now primary decision upon the existence of and means of meeting re- sponsibilities of the first two types belongs to national organs. No international controversy can occur until a failure to meet the re- 29 Satow, Diplomatic Practice, 2 : 131 ; Hall, op. cit., p. 365 ; Wright, Minn. Law Rev., 5 : 441-443, supra, sec. 33. 30 See J. B. Moore, Am. Pol. Sci. Rev., 9 : 4-6. 3^ Hall, op. cit., pp. 14, 56. 32 Supra, sec. 9. 302 WRIGHT— POWER TO MEET RESPONSIBILITIES. sponsibility or at least definite authorization of a violation is al- leged.^^ It is, therefore, only responsibilities of the third type, now under consideration, which can raise a question for international discussion, and such a question may be raised by a claim for (i) specific performance or (2) reparation. These are the two types of obligations imposed by international law.^* They imply " a tie ; whereby one (state) is bound to perform some act for the benefit of another " ^^ and are thus to be distinguished from responsibilities, almost synonymous with liabilities, which imply a situation in which one state may suffer if it acts, permits action, or fails to act so as to injure others.'*' 33 Friendly controversies merely to ascertain rights resulting in decisions of the nature of declaratory judgments would be an exception. Boundary controversies are sometimes of this character, though usually they are occa- sioned by incidents alleged to constitute an encroachment. ^■t These two obligations bear a certain resemblance to the two obligations known in Roman law as obligationes ex contractu and ex delicto and in com- mon law as contracts and torts. There is, however, a difference. The dis- tinction between contracts and torts depends upon whether or not the obliga- tion is founded on special agreement or on general law; whereas the distinc- tion we here make depends upon whether or not the obligation can be carried out or merely compensated for. In fact, however, practically the only inter- national obligations which can furnish grounds for a demand for specific carrying out are founded on special agreements. But on the other hand, obhgations which may furnish grounds for a claim for compensation may be founded upon either general law or special agreement. See Salmond, Juris- prudence, pp. 558-559- 35 Holland, Jurisprudence, p. 241. 36 " Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong." (Salmond, Jurisprudence, sec. 126.) In the terminology which has developed from discussion of Professor Hohf eld's article on Fundamental Legal Conceptions {Yale L. J., 23: 16), we say that B is under an obligation (or duty) when the services of organized society can be enlisted against him by A and correlatively that A has a right. On the other hand, B is under a liability (or responsibility) when organized society permits A to act against him and correlatively A has a power. (See addresses at meeting of Association of American Law Schools in Chicago, Dec. 29, 1920, especially that by Kocourek, Am. Law School Rev., 4: 615.) Rights and obligations imply a society organized to the extent of provid- ing agencies for authoritatively judging justiciable controversies between its members. There are no true rights or obligations where each man is judge of the merits of his own case. (Supra, sec. 139.) Powers and liabilities, however, may exist in a society organized only to the extent of refusing to permit self help in certain cases. There are no true powers or liabilities WRIGHT— POWER TO AlEET RESPONSIBILITIES. 303 142. Practice in Submission of Disputes to Arbitration. Although under the League of Nations Covenant, apparently any question involving either of these obligations should be considered justiciable, it appears that in the past states have been very reluctant to consider disputes relating to the performance of political acts, even when required by treaty, as fully justiciable. They have been unwilling to be controlled by any authority other than their own consciences in questions involving sovereignty, such as the method by which guarantees are to be fulfilled or laws enforced within their own territory. Thus Lord Derby said of the Luxemburg neu- tralization guarantee : " We are bound in honor — you cannot put a legal construction upon it — to see in concert with others that these arrangements are maintained." ^^ And President Wilson said of the guarantee in Article X of the League of Nations Covenant : ^® " It is a moral, not a legal, obligation, and leaves our Congress absolutely free to put its own interpretation upon it in all cases that call for action. It is binding in conscience only, not in law." The North Atlantic Fisheries arbitration court seemed to sanc- tion the same view when it refused to hold that Great Britain was bound to gain American assent to fishery regulations within those territorial waters in which the United States claimed a treaty servitude : ^^ " The right to regulate the liberties conferred by the treaty of 1817 is an attribute of sovereignty, and as such must be held to reside in the territorial sovereign unless the contrary be provided." In practice claims for reparation have been the type most frequently submitted to arbitration, though cases involving the limits of jurisdiction such as boundaries, public vessels, etc., have occasionally been so settled. where each man is judge of the limits of his own competence. Moral rights and duties may exist in a society not organized at all. (Supra, sec. 140.) The family of nations has passed from the last to the second stage and is slowly advancing to the first. (Infra, sec. 142; Wright, Col. Law Rev., 20: 147-148.) 3" Hansard, Debates, 3d Ser., 187: 1922; Hall, op. cit., p. 355. 38 Statement to Senate For. Rel. Committee, Aug. 19, 1919, 66th Cong., 1st sess.. Sen. Doc. 106, p. 502. 30 Wilson, The Hague Arbitration Cases, Boston, 1915, p. 154. 304 WRIGHT— POWER TO AlEET RESPONSIBILITIES. B. Power to Interpret National Obligations. 143. By National Political Organs: Congress. The agencies competent to interpret and apply international law and treaty, and thereby to decide upon the existence of national obligations, may be classified as (i) national political organs, (2) international political organs, (3) national judicial organs and (4) international judicial or quasi-judicial organs. Political questions according to the courts are beyond their competence and must be left to the political departments. Thus they have held that it belongs to the political departments to decide whether or not a treaty has been terminated and until such decision is given the courts will continue to apply it as municipal law.*" The principle has been, that the organ with power to fulfill an alleged political obligation is competent to decide whether the obligation really exists. " Where the construction of a treaty is a matter of national policy," wrote Secretary of State Bayard, " 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." *^ So Congress has asserted that it alone can interpret responsibilities claimed to oblige an appropriation of money, a declaration of war or other act exclusively within its control. As has been pointed out, if the President as the representative organ should interpret such a responsibility, his interpretation would bind the United States under international law,^^ but in recognition of the con- stitutional principle he has not usually done so. Thus Secretary of State Bayard refused to authorize an unconditional signature of a declaration interpreting the Submarine Cable Convention of 1884 :« " It is to be observed," he wrote, " in this connection that the treaty in question is not self-executing, and that it requires appropriate legislation to give it effect. If, under these circumstances, the Executive should now as- 40 Infra, sec. 182. 41 Mr. Bayard, Sec. of State, to Mr. McLane, Min. to France, Nov. 24, 1888, Moore, Digest, 5 : 209. See Martin v. Mott, 12 Wheat. 19, infra, sec. 223, note 97. 42 Supra, sees. 34, 38. WRIGHT— POWER TO MEET RESPONSIBILITIES. 205 sume to interpret the force and effect of the convention, we might hereafter have the spectacle, when Congress acted, of an Executive interpretation of one purport and a different congressional interpretation, and this in a matter not of Executive cognizance." 144. By National Political Organs: The Senate. The Senate, in consenting to the ratification of treaties, has decided upon the action necessary to meet responsibilities created by preliminaries of peace, protocols and other agreements requiring the negotiation of subsequent treaties. So the Senate assumed the right to decide whether or not ratification of the Treaty of Ver- sailles was required in fulfillment of the responsibilities under- taken by the President's exchange of notes with the Allied powers of November 5. 191 8, and. the armistice with Germany of Novem- ber II.'** So also the Senate has asserted its right to decide whether a particular controversy is within the scope of a general arbitration treaty, and has therefore insisted upon a voice in the conclusion of the compromis submitting a particular case to arbitration. The latter claim has not been admitted by Presidents or supported by the better authorities, who have held that the power to apply a general treaty to particular cases is not a political question and may be delegated.*^ With reference to general and permanent interpretations of treaties or agreements, however, the President has admitted the Senate's claim. " Had the protocol varied the treaty, as amended by the Senate of the United States," wrote President Polk in reference to a protocol explaining the treaty of Guadaloupe Hidalgo with Mexico, " it would have no binding effect." 46 Apparently the presumption that the President speaks for the nation would generally be superseded in such a case by the duty of foreign nations to acquaint themselves with the authority in the United States competent to make international agreements, and the United States would not be bound by such general interpreta- *3 Note cited, supra, note 41. ** Supra, sec. 30, note 53. 45 Supra, sec. 62. ■*6 Moore, Digest, 5 : 208 ; see also supra, sees. 27, 28, 38, and infra, sec. 177. 306 . WRIGHT— POWER TO MEET RESPONSIBILITIES. tion unless the foreign nation had reason to suppose it had been consented to by the proper authorities.*^ 145. By National Political Organs: The President. Where power to fulfill responsibilities is vested in the Pres- ident, he may decide what action is necessary. Thus Presidents have often decided when the circumstances contemplated by treaties or agreements of guarantee and protection, such as those with Colombia (1846), Mexico (1882-1894), Cuba (1903) and Hayti (1916), exist, and on their own responsibility have moved troops or war vessels.*® In his message of December 7, 1903, President Roosevelt explained at length his interpretation of the treaty of 1846 with Colombia. By Article 35 of this treaty the United States had "guaranteed, positively and efficaciously to New Granada, (Colombia) . . . the perfect neutrality of the . . . Isthmus, with the view that the free transit from the one to the other sea may not be interrupted or embarrassed in any future time while this treaty exists ; and, in consequence, the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said territory." In fulfillment of this guarantee Pres- ident Roosevelt had ordered the war vessel Nashville to Colon, with instructions : *^ " In the interests of peace make every eflfort to prevent Government troops at Colon from proceeding to Panama. The transit of the Isthmus must be kept open and order maintained." With this action, the insurrection soon ended in success, and President Roosevelt promptly recognized the New Republic of Panama. In the message he called attention to previous occasions from 1856 to 1902, in which the United States had been obliged to exercise a " police power " in connection with this guarantee and the President had ordered sailors and marines to land and to patrol the Isthmus. ^° 4^^ Supra, sec. 24. 48 taft, Our Chief Magistrate, pp. 85-87. 4^ Richardson, Messages, 10: 566. ^'^ Ibid., id: 664. WRIGHT— POWER TO MEET RESPONSIBILITIES. 307 146. By International Political Organs. A political interpretation of national obligations is not neces- sarily unilateral. Undoubtedly agreement is a more satisfactory method of reaching a decision and has been judicially approved. Thus said Justice Story for the Supreme Court : ^^ " The parties who formed this treaty, and they alone, have a right to annex the form of a passport. It is a high act of sovereignty, as high as the formation of any other S'tipulation of a treaty. It is matter of negotiation between the governments. The treaty does not leave it to the discretion of either party to annex the form of the passport; it requires it to be the joint act of both." " The interpretation of a treaty in case of difficulty," said the French Court of Cassation, " can result only from a reciprocal agreement of the two governments." ^^ An interpretation by political agreement would ordinarily re- quire negotiation through the Department of State, acting either through the Secretary of State at Washington or through a dip- lomatic officer in the foreign capital. All claims must be presented to the Department of State, not to the President direct or to Congress. ^^ If claims of American citizens upon foreign govern- ments, they must be presented in proper form and with ample evi- dence, but the department reserves full discretion to refuse to press them.^* If claims from foreign citizens or governments against the United States, they must be presented officially as from the government of the claimant's state. The Department of State will not consider claims from foreign individuals, only from rec- ognized governments.^' However, the department is free to accept an offer of mediation by a foreign government, or to submit the controversy to a council of conciliation, commission of inquiry or other body set up to discover facts and agree on recommendations.^® Such recommen- dations are not binding upon the political organs of the government 51 The Amiable Isabella, 6 Wheat, i, 71-73 (1821). 52 Dalloz, Juris, Gen., Supt., t. 17 (1896), s. v. Traite, Int., No. 14. 53 Borchard, op. cit., pp. 355, 653; Moore, Digest, 4: 687, 781; supra, sec. 12, note 22. 54 Moore, Digest, 6: 609 et seq. ^^ Ibid., 6: 607-609; 4: 694. ^^ Ibid., 6: 1012 et seq.; Borchard, op. cit., p. 366 et seq. PROC. AMER.PHtL., SOC. , VOL. LX., U, MARCH II, I922. 308 WRIGHT— POWER TO MEET RESPONSIBILITIES. but are often accepted. Under the Bryan Peace treaties con- cluded with twenty states in 1914 and 191 5, controversies not otherwise settled must be submitted to a joint commission before force is restored to. Similar provision is made in the League of Nations Covenant (Article XV)." The controversy may be settled by the conclusion of a treaty which is of course binding on the United States. Many claims have been thus settled. The claims of the United States on account of spoliations by French vessels before 1800 and the claims of France for reparation on account of the alleged non- fulfillment of the alliance treaty of 1778 were balanced off by the treaty of 1801. Claims against France were liquidated by a treaty concluded in 1831. Treaties of peace usually liquidate pre- war claims. This was true of the treaties of Guadaloupe Hidalgo and Paris. By article VII of the latter: " The United States and Spain mutually relinquish all claims for indem- nity, national and individual, of every kind, of either Government, or of its citizens or subjects, against the other Government, that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war." Often such a treaty liquidation will involve an obligation of the Government to compensate its own citizens.^® This was true of the provision just stated, which was followed by the statement that : "The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article." Boundary questions have often been settled by treaty, as was the Maine Boundary by the Webster-Ashburton treaty of 1842 and the Oregon boundary by a treaty of 1846. The power to settle claims against the government by agree- ment has sometimes been delegated to officers other than the Secre- tary of State. Thus an act of March 2, 1919, provided :°^ s'' Canadian Boundary controversies must be submitted to a commission by art. viii of the treaty of 191 1, Charles, Treaties, p. 42. s8 Borchard, op. cit., p. 379 ; Moore, Digest, 6 : 1025. '840 Stat., c. 94, sec. 3, Comp. Stat., 3115, 14/15C. WRIGHT— POWER TO MEET RESPONSIBILITIES. 309 " The Secretary of War, through such agency as he may designate or establish, is empowered, upon such terms as he or it may determine to be in the interest of the United States, to make equitable and fair adjustments and agreements, upon the termination or in settlement or readjustment of agree- ments or arrangements entered into with any foreign government or govern- ments or national thereof, prior to November twelfth, nineteen hundred and eighteen, for the furnishing to the American Expeditionary Forces or other- wise for war purposes of supplies, materials, facilities, services, or the use of property, etc." 147. By National Courts. The interpretation and application to concrete circumstances of international law and treaty is not in essence a political or legislative act and undoubtedly the political organs may delegate power to make such interpretation to other organs. This power is essen- tially judicial in character and has often been delegated to the courts. Certain claims virtually against the government may be decided by prize courts. Such courts may decree restitution of captured vessels, compensation if the vessel has been requisitioned or de- stroyed, or damages if the capture has been illegal. Damages are in theory awarded against the officer making the capture, but in fact such awards are usually paid by the government.^" Federal District Courts have been given exclusive jurisdiction in prize matters with appeal to the Supreme Court.®^ They are free to apply international law and treaty and hold it their duty to do so except as expressly modified by act of Congress.®^ Both neutral and enemy persons are entitled to present claims in such courts.®^ It has been held that prize courts may be constituted by Congress alone. Courts set up under authority of the President in occupied territory cannot exercise prize jurisdiction. °* Congress has also established a Court of Claims from which appeal may be taken to the Supreme Court. Its jurisdiction ex- 60 Moore, Digest, 7 : 593-597. 61 Judicial Code of 191 1, sec. 24, par. 3; sec. 250, par. 2. 62 The Nereide, 9 Cranch 388; The Paquette Habana, 175 U. S. 677, supra, sec. 106. 63 The claimant in the Paquette Habana, supra, was an enemy subject. See British case. The Mowe, L. J. (1915), p. 57, Am. Jl. Int. Law, 9: 547. 6*Jecker v. Montgomery, 13 How. 498. 310 WRIGHT— POWER TO MEET RESPONSIBILITIES. tends to claims presented by aliens whose governments will recipro- cate, not founded on tort, or treaty. ^^ The decisions of this court or of the Supreme Court, if appeal is taken, are considered final and Congress always appropriates theref or.*^^ The Court of Claims may also consider any claim presented to it by Congress and make a report thereon, which however is not binding."'^ Under the Tucker Act of 1887 and subsequent amendments the Federal District Courts enjoy concurrent jurisdiction with the Court of Claims in claims not exceeding $10,000.*'^ Congress has often set up special courts or commissions to settle particular claims. Of this character may be mentioned commissions to liquidate the claims settled by the treaty with Spain of 1819, claims settled by the Alabama Arbitration of 1871. and claims settled by the Spanish treaty of 1898. Sometimes special jurisdiction is conferred to settle particvilar claims. So the Court of Claims was given jurisdiction to settle the French Spoliation claims, the courts were given jurisdiction to settle various specified types of claims arising out of the Civil War, and by an act of i860 the federal courts were given jurisdiction to settle the claim of one Repentigny to a tract of land in Michigan founded on an ancient French grant. The act expressly provided in this case that the decision should be based on " (i) the law of nations, (2) the laws of the country from which the title was derived, (3) the principles of justice, and (4) the stipulations of treaties."'* 148. By International Courts. National courts are bound by national law if expressed in un- mistakable form, and may not be free to apply international law and treaty. All international claims, whether decided upon by national courts or not, if not satisfactorily settled, may be presented to the President through the Department of State.'^° As we have "5 Judicial Code of 1911, sees. 136, 145, 153, 155; 36 Stat. 1135, Willoughby, op. cit., p. 982. 66 U. S. V. New York, 160 U. S. 615; In re Sanborn, 148 U. S. 226; Wil- loughby, p. 1275. "■^ Judicial Code of 1911, sec. 151. 68 Ibid., sec. 24, par. 20. 69 U. S. V. Repentigny, 5 Wall. 211 (1866). "6 Supra, sec. 12. WRIGHT— POWER TO MEET RESPONSIBILITIES. 311 seen they may then be settled by poHtical negotiation and agree- ment or submission to a pohtical body such as a council of con- ciliation. However, the department may submit them to arbitra- tion or an international court and under the provisions of certain treaties it is bound to so submit certain types of controversies. By a treaty with various American states adopted at the Fourth Inter- national American Congress in 1910:"^ " The High Contracting Parties agree to submit to arbitration all claims for pecuniary loss or damage which may be presented by their respective citi- zens and which cannot be amicably adjusted through diplomatic channels, when said claims are of sufficient importance to warrant the expense of arbitration." " The decision shall be rendered in accordance with the principles of international law." By the II Hague Convention of 1907 armed force cannot be used for the recovery of contract debts between governments unless an offer of arbitration has been refused, and by a large number of treaties concluded in 1908 for five years, most of which have since been renewed, the United States has agreed to submit to arbitra- tion " Differences which may arise of a legal nature or relating to the interpretation of treaties existing between the two contracting parties and which it may not have been possible to settle by di- plomacy " and which " do not affect the vital interests, the inde- pendence, or the honor of the two Contracting States, and do not concern the interests of third parties." '- The League of Nations Covenant (Art. XIII) recommends the submission of specified types of cases to arbitration or to the proposed International Court of Justice but does not require it. In making such submissions, if no general treaty exists, a special treaty to which the Senate has consented is necessary for the sub- mission to arbitration of national claims or claims by foreign states or individuals against the United States.'^^ Claims of American citizens against foreign states may be submitted on the basis of a compromis under authority of the President or Secretary of State, since it is within the discretion of these officials to decide whether ■^1 Charles, Treaties, etc., p. 346. '2 Alalloy, Treaties, p. 814. ■^3 Foster, Yale L. J., 11: "77; Moore, Digest 5: 211. 312 WRIGHT— POWER TO MEET RESPONSIBILITIES. such claims shall be pressed at all."* Even if an arbitration of such claims results successfully for the United States the government may withhold the money from the individual claimant if it discovers fraud. Thus claimants in the L'/\bra and Wyle claims against Mexico were unable to compel the Secretary of State by manda- mus to turn over to them the money paid by Mexico to the United States as a result of the arbitration." The United States govern- ment had discovered fraud after the arbitration and ultimately returned the money to Mexico. Where a general arbitration treaty exists, the better authorities hold that the President may submit claims falling within them on his own authority, unless the general treaty requires otherwise. The Senate however has taken a dif- ferent view."^ Arbitration awards are considered final and obligatory and have practically always been met by the United States.'^'' In the few cases where they have not, the United States has contended that the arbitration court exceeded or abused its powers.'® Unless such exception is taken at once by the political organs, the courts "hold arbitration awards authorized by treaty the supreme law of the land.^» Although often recommended, no international court of justice was established until 1921. The International Prize Court to be set up by the XII Hague Convention of 1907 never came into being. Such a court, authorized by Article XIV of the League of Nations Covenant, was established by action of the Second Assembly of the League, September, 1921, on the basis of a code prepared by a com- 74 J. B. Moore. Pol. Sci. Quar., 20: 403; Willoughby, op. cit., p. 475; Moore, Digest, 5: 211. "sL'Abra Silver Mining Co. v. U. S., 175 U. S. 423 (1899) ; Foster, The Practice of Diplomacy, 374-377- "<5 Willoughby, op. cit., p. 475, supra, sec. 62, infra, sec. 163. The Anglo- American claims treaty of 1910, differing from those of 1853 and 1871, re- quires that each schedule of claims under the treaty be approved by the Senate as a special treaty (Charles, Treaties, p. 50, and Sir Cecil Hurst in British Year Book of International Law, 2: 193). ■^■^ I Hague Conventions, 1907, pp. 81-83. ''^ Moore, Digest, 7 : 59-62. •79 Comegys v. Vasse, i Pet. 193, 212; La Ninfa, 75 Fed. 513 (1896); Moore, Digest, 7: 55. WRIGHT— POWER TO MEET RESPONSIBILITIES. 313 mission of jurists in 1920 and approved with modifications by the council and by the First Assembly and ratified at that time by 29 members of the League.^" An international court of claims before which private individuals might bring cases against governments has also been suggested. With reference to such a court Borchard says : ^^ " The divorce of pecuniary claims from political considerations a union, which now not only results in inexact justice, but often gross injustice, and the submission of such claims to the determination of an independent tribunal, must make a universal appeal to man's sentiment for justice." C. Power to Perform National Obligations. 149. Appropriations. A decision having been made as to what action is required in order to meet the obligation, it becomes the duty of organs em- powered thereto by the Constitution to perform those acts. Under the power to raise taxes for the general welfare, Congress undoubtedly has power to make appropriations for this purpose. Where Congress itself has decided that the obligation is due it will of course make the appropriation. Where a decision by a na- tional court acting within its jurisdiction or an international arbitra- tion court has been given, appropriations have been made as a matter of course. Where the Department of State has admitted the validity of a claim Congress has generally made the appropria- tion. Thus on January 30, 1896, Secretary of State Olney, after discussion with the Italian Ambassador with reference to the lynch- ing of three Italian citizens in Colorado, reported to the President: " The facts are without dispute and no comment or argument can add to the force of their appeal to the generous consideration of Congress." ^^ 80 For draft plan of organization by Root et al. see Am. Jl. Int. Law, Supp., 14: 371 (Oct., 1920), and for code as adopted see A League of Nations, 4: 281 et scq. 13 additional states had signed but not ratified the code in September 1921 and 13 states had accepted the clause providing for com- pulsory jurisdiction, ibid., 278, 291. 81 Borchard, op. cit., p. 864. See also pp. 328. 373, 443. 82 U. S. For. Rel., 1895, 2: 938; Moore, Digest, 6: 842. 314 WRIGHT— POWER TO MEET RESPONSIBILITIES. President Cleveland said in his message to Congress of February 3, 1896 :«3 " Without discussing the question of the liability of the United States for these results, either by reason of treaty obligations or under the general rules of international law, I venture to urge upon the Congress the propriety of making from the public Treasury prompt and reasonable pecuniary provision for those injured and for the families of those who were killed." By an act of June 30, 1896, Congress provided:^* " To the Italian Government for full indemnity to the heirs of three of its subjects who were riotously killed, and to two others who were injured in the State of Colorado by residents of that State, ten thousand dollars." Where appropriation has been required for the execution of treaties. Congress has never failed to act^^ but has asserted a right to exercise discretion. Thus a house resolution of 1796 relating to the Jay treaty states : ^^ "When a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress; and it is the constitutional right and duty of the House of Representatives in all such cases Ito deliberate on the expediency or inexpediency of carrying such treaty into effect and to determine and act thereon as in their judgment may be most conducive to the public good." This attitude though virtually repeated on several later occasions has not been generally approved outside of the House of Rep- resentatives and undoubtedly a moral obligation to make the appro- priation exists. ^^ S3 Richardson, Messages, 9: 664; Moore, Digest, 6: 843. ^■* Moore, Digest. 6: 843. In later appropriation acts for similar claims Congress paid " out of humane considerations and without reference to the question of liability, therefor," ibid., 6: 845, 849. See also report of Senator Lodge, 1901, ibid., 6: 852. 85 Appropriation acts for this purpose are listed, Crandall, op. cit., p. 179. 86 Annals, 4th Cong., ist sess., p. 771. The resolution was affirmed with- out debate in 1871. Cong. Globe, 426. Cong., ist sess., p. 835; Wharton, 2: 19; Moore, Digest, 5: 224; Crandall, 165 et seq.; Wright, Ant. Jl. Int. Law, 12: 66. See also Gallatin to Everett, Jan., 1835, Moore, Digest, 5 : 232. 8^ Crandall, op. cit., p. 177; Willoughby, op. cit., p. 483; Dana's Wheaton, sec. 543; Wharton, Digest, 2: 67-68; supra, sec. 59; infra, sec. 256. WRIGHT— POWER TO MEET RESPONSIBILITIES. 315 150. Cession of Territory. Treaties or arbitration awards may require a cession of ter- ritory. Such provisions affecting small tracts of territory in boundary settlements have been considered self-executing.** The same view would probably be taken of a large cession if condi- tions were such that it could be considered constitutional. *° 151. Guarantees and Use of Military Force. Treaties of guarantee, or requiring the employment of force in policing or other operations have usually been carried out by the President. Thus on many occasions the President has dispatched troops to Panama in maintenance of the guarantee in the Colombia treaty of 1846 and Presidents have also dispatched troops to Cuba, Hayti and China in pursuance of treaties and protocols requiring protection."" Congressional legislation has often provided expressly for the use of force in pursuance of treaty. Article 8 of the Webster-Ashburton treaty of 1842 required that the contracting powers keep naval forces of specified size off the coast of Africa for the suppression of the slave trade. Congress passed an act authorizing the President to dispatch vessels for this purpose, and the President so acted.®^ If a guarantee treaty requires a declaration of war. Congress alone can carry it out, although its discretion ought to be confined to consideration of whether the contemplated circumstances exist ^8 The Webster-Ashburton treaty adjusting the Maine Boundary was con- sidered self-executing with respect to territory claimed by Maine, but given to Canada by the treaty. Little v. Watson, 32 Maine 214, 224 (1850) ; Cran- dall, op. cit., p. 223. The Supreme Court of the United States has recognized boundary settlements between states of the Union. Va. v. Tenn., 148 U. S. 503. See also La Ninfa, 75 Fed. 513, in which the arbitration award fixing jurisdictional limits in Behring Sea was held self-executing. 89 Willoughby, op. cit., p. 512; Crandall, op. cit., p. 220 et seq.; supra, sec. 50. ^'^ Supra, sees. 126, 145; infra, sees. 221-224. 91 Moore, Digest, 2 : 939. See also ibid., 2 : 941 ; Rev. Stat, sec. 5557 ; Criminal Code of 1910, sec. 260, 35 Stat, 1140, Comp. Stat., sees. 10, 433. In reference to Slave trade treaty of 1862, see Moore, Digest, 2: 946. In refer- ence to General act of Brussels for suppression of the slave trade, ibid., 2 : 949. 316 WRIGHT— POWER TO MAKE AGREEMENTS. and whether war is the most effective means of carrying out the guarantee.^^ 152. Conclusion of Subsequent Treaties. Protocols and prehminaries of peace may require the conclusion of definitive treaties along prescribed lines. Such provisions can only be carried out by the treaty power. A protocol calling for conclusion of a treaty for arbitration of the Behring Sea contro- versy was carried out by a treaty in 1891. Spain objected to the definitive treaty of peace as insisted upon by the United States in 1898 on the ground that it was in violation of the preliminaries of peace in some respects. Treaties often require the conclusion of subsequent treaties. This has been true of many general arbitra- tion treaties specifically requiring special treaties submitting cases within the scope of the general treaty. The League of Nations Covenant contemplates treaties on many subjects in which interna- tional cooperation is urged. In such cases the treaty power may act within the discretion allowed it by the general treaty.®^ 153. Participation in International Organisation. Treaties requiring the appointment of officers for participating in international organizations, such as the permanent Court of Ar- bitration and Bureau established by the I Hague Convention of 1899, and 1907, and for putting administrative regulations into effect such as the Behring Sea seal fisheries treaty, the international radio treaty, etc., can be carried out by the President, though Congress has often passed acts expressly authorizing participation in such organizations and enforcement of such regulations.** If permanent offices with a fixed salary are required, an act of Congress would be essential for the execution of such provisions.*^ ^^ Supra, sec. 37, infra, sec. 211. See also Wright, Am. Jl. Int. Law, 12: 72-79- ^3 Supra, sec. 144. ^*The President is authorized to use naval vessels to enforce the Sub- marine cable treaty of 1885, by act of Feb. 27, 1888, 25 Stat. 41, Comp. Stat., sec. 10087. He is authorized to enforce the Behring Sea Seal fisheries treaty of 191 1 by act of Aug. 24, 1912, 37 Stat. 499, Comp. Stat., sec. 8838. For acts authorizing participation in various international organizations, see infra, sec. 242. 95 Infra, sec. 242. WRIGHT— POWER TO MEET RESPONSIBILITIES. 317 154. Commerce and Revenue Laws. Treaties requiring a modification of the tariff system might seem self-executing and have been held so in dicta by the courts.'"' On at least one occasion a foreign state has been given reduced rates on the basis of treaty without congressional authorization.^^ Congress, however, has insisted that such treaties are not self- executing but require express congressional action for execution. This practice has generally been acquiesced in by the other organs of government."^ 155. Formal Amends in Reparation. Satisfactory reparation may sometimes require acts other than the payment of money or cession of territory. Formal amends such as the firing of salutes or sending of apologies may be au- thorized by the President."® Sometimes states have demanded that individuals be criminally punished or turned over to them for punishment by way of reparation. Thus, aside from indemnity, Italy demanded as reparation for the New Orleans lynching of 1891 : " The official assurance by the Federal government that the guilty parties should be brought to trial." '^^'^ In his next message to Congress President Harrison asked for legislation giving federal courts jurisdiction in such cases but without success. Doubtless such legislation is expedient for meeting the international respon- sibility of enforcing international law and treaty within the juris- diction but it cannot be said that this particular form of reparation is required. ^°^ The release of prisoners held in custody in violation of international law is however a form of reparation which may be 96 Bartram v. Robertson, 122 U. S. 116; Whitney v. Robertson, 124 U. S. 190; Willoughby, op. cit.^ p. 492. 9^ Switzerland on application of Most-favored-nation clause of treaty of 1850, in 1899. Moore, Digest, 5 : 283-284. See also report of Ambassador Bryce to British Government, Jan. 31, 1912. Pari. Pap., Misc., No. 5 (1912), No. 23, quoted in Ponsonby, Democracy and Diplomacy, p. 154. 98 Crandall, op. cit., pp. 195-200; Wright, Am. Jl. Int. Law, 12: 68. »9 Moore, Digest, 6: 1034-1037. 100 Ibid., 6 : 838. 101 Supra, sec. 138. 318 WRIGHT— POWER TO MAKE AGREEMENTS. the McLeod case in 1842.^°^ At present legislation provides for demanded. Such a reparation was demanded by Great Britain in release in such cases on habeas corpus to the federal courts.^"* CHAPTER XIV. The Power to Make International Agreements. 156. Power of the States to Make Agreements with Consent of Congress. The courts have never pointed out the exact distinction between " Treaties, Alliances, and Confederations/' which the states cannot make at all and "compacts and agreements," which they can make with the consent of Congress,^ though Professor Hall has suggested that the latter refers to " trifling and temporary arrangements be- tween States and foreign powers without substantial political and economic effect." ^ In 1842, Chief Justice Taney held, in an evenly divided court, that the extradition of a criminal, by the governor of Vermont to Canada, would be an " agreement " with Canada, which the state could not make without consent of Congress. The term, "agreement," he thought must be construed so as "to pro- hibit (without consent of Congress) every agreement, written or verbal, formal or informal, positive or implied, by the natural under- standing of the parties."^ Taney's view was endorsed by the full court forty-four years later in United States v. Rauscher.* There do not appear to have been any " agreements or com- pacts " made with consent of Congress, by states of the Union with foreign states, though following the " Aroostook War," in 1839, on authority of the Secretary of State, the Governor of Maine, and the Lieutenant-Governor of New Brunswick concurred in a modus vivendi, pending settlement of the boundary contro- versy,^ and the consent of IMaine and of Massachusetts was gained 102 Moore, Digest, 2 : 24-30. 103 Rev. Stat, sec. 753 ; Comp. Stat., sec. 1281. 1 U. S. Const., Art. I, sec. 10, cl. i, 3. ^ Proc. Acad, of Pol. Sci., 7: 555. 3 Holmes v. Jennison, 14 Pet. 540. ■* U. S. z'. Rauscher, 119 U. S. 407. 5 Crandall, op. cit., p. 144. WRIGHT— POWER TO MAKE AGREEMENTS. 319 by the National Government during negotiation of the Webster- Ashburton treaty of 1842, which finally settled the boundary." " Agreements or compacts " with other states of the Union have often been made by states with the consent of Congress' and there is no doubt but that the same power applies to foreign states as was, in fact, admitted by Chief Justice Taney in the case referred to. 157. Power of the States to Make Agreements Independently. Although dicta in the Rauscher case asserted that " There is no necessity for the States to enter upon the relations with foreign nations which are necessarily implied in the extradition of fugitives," and that "at this time of day, and after the repeated examinations which have been made by this court, into the powers of the Federal Government, to deal with all such international questions exclu- sively," such a state power cannot be admitted, yet it appears that there may be a small field within which states can agree with for- eign nations even without consent of Congress. Such a field exists in relations between the states of the Union. " There are many matters," said the Supreme Court, " upon which different States may agree, that can, in no respect, concern the United States. If, for example, 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 be deemed essen- tial 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 transport 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 transportation of the exhibits through the State in that way. If the bordering line of the two States should cross some malarious and disease producing district, there could be no possible reason, on any conceivable grounds, to obtain the consent of Congress for the bordering States to agree to unite in removing the cause of the disease. So, in the 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 in session. ^ Infra, sec. 50. '■ Green z: Biddle, 8 Wheat i ; Crandall, op. cit., p. 145 ; Willoughby, op. cit., p. 235. 320 WRIGHT— POWER TO MAKE AGREEMENTS. "If, then, the terms 'compact' or 'agreement' in the Constitution 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 Constitution apply? Looking at the clause in which the terms 'compact ' or ' agreement ' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the States, which may en- croach upon or interfere with the just supremacy of the United States." ^ As the constitutional clause seems to place agreements with foreign states in exactly the same class as agreements with other states of the Union, it would seem that states might agree with for- eign nations for the purchase of land, for the transit of exhibits, for the removal of sources of disease, or, as in the case cited, for the exact demarkation of a boundary, without congressional consent.* Such agreements would have to be entirely devoid of political significance, and Congress would doubtless be the ultimate judge on that point. Acquiescence by Congress in such a compact would be considered tacit consent, as was explained in the case just quoted, but if Congress subsequently denied the validity of a compact, thereby indicating its belief that the compact was one to which its consent was necessary, the courts would undoubtedly follow its interpretation of a " political question " and hold such compact void. Contracts of a purely business character between a state and a foreign government, such as are involved in the sale of state bonds to a foreign government, do not require the consent of Congress any 8 Va. V. Tenn., 148 U. S. 503 ; Willoughby, loc. cit. ^ The Supreme Court said in Fort Leavenworth R. R. v. Lowe (114 U. S. 541) : "It is undoubtedly true that the State, whether represented by her legislature, or through a convention specially called for that purpose, is incompetent to cede her political jurisdiction and legislative authority over any part of her territory to a foreign country, without the concurrence of the General Government," though according to this opinion she may cede it to the general government itself. Willoughby {op. cit., 508, note 23) suggests a possible exception " with reference to such an unimportant matter as' the administration of fishing upon boundary waters." Barnett {Yale L. J., 13, 23, 27) suggests that there may " properly be an autonomy in local external affairs, at least as to the States bordering on Canada or Mexico, just as there is a local autonomy in matters purely domestic." Butler, however, doubts it. {Op. cit., I, sec. 123.) See Mathews, The States and Foreign Relations, Mich. L. R., 19: 692. WRIGHT— POWER TO MAKE AGREEMENTS. 321 more than do such contracts between states of the union. ^" Agree- ments and contracts of the kind here referred to do not involve a national responsibility.^^ 158. Power of the National Government to Make Agreements. Thus with limited exceptions, the power to make agreements is vested exclusively in the national government, and apparently the Constitution vests it in two authorities, the President acting alone, and the President acting with advice and consent of two-thirds of the Senate. President Washington pointed out in his message on the Jay treaty that the House of Representatives had no part in treaty-making.^^ The House has several times asserted, by resolu- tion, its power to exercise a free discretion as to the execution of treaties requiring an appropriation or other legislation. This has never extended to a claim to participation in treaty-making, and with its more limited interpretation has never been accepted by other branches of the government. ^^ 159. Congress Cannot Make International Agreements. It is true that Congress has sometimes passed legislation which by its terms is to go into effect as to any foreign nation, upon proc- lamation by the President, that such nation offers a specified reci- procity, but such arangements are not agreements, since either party is entitled to discontinue them at its own discretion." ^* Some- times Congress has delegated authority to the President to make agreements with foreign nations upon subjects within its powers, but here, also, the arrangement seems to be terminable at discre- tion of Congress and is, in fact, an agreement made by the Pres- ident." Congressional resolutions may suggest the making of a treaty on a specified subject, or the modification by negotiation of an 10 S. Dak. z'. N. Car., 192 U. S. 286 (1904). 11 Supra, sec. 136. 12 Richardson, Messages, i : 195. ^3 Supra, sec. 149, note 82. 1* Field V. Clark, 143 U. S. 649; Taft, Our Chief Magistrate, p. iii. ^5 Supra, sec. 61 ; Moore, Digest, 5 : 362. 322. WRIGHT— POWER TO MAKE AGREEMENTS. existing treaty, but such resolutions may be ignored by the Pres- ident.^^ 1 60. The Courts Cannot Make International Agreements. The courts, also, are devoid of treaty-making power : ^^ " This court," said Justice Story, " does not possess any treaty-making power. That power belongs, by the Constitution, to another department of the government; and to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions." Courts must construe and interpret treaties in applying them to cases, but such constructions cannot apply to political question or supply omissions. ^^ A. The Power to Make Executive Agreements. 161. The Obligation of Executive Agreements. The President with advice and consent of two-thirds of the Senate may make any agreement whatever, on a subject suitable for international negotiation and not violative of constitutional limitations. This treaty-making power is not limited by the Pres- ident's independent power of making agreements, but the latter power unquestionably exists. With respect to such Presidential agreements, the questions arise: (i) What subject matter may they cover? 1^ Infra, sec. 203. Congress has undertaken regulation of Indian affairs formerly vested in the treaty-making power. " During the first eighty years of government under the Constitution, agreements with the Indian Tribes were made exclusively by the President and the Senate, in the exercise of the treaty-making power. The passage of the act of 1871 was strongly opposed by certain members of the House as well as of the Senate, on the ground that it involved an infringement of the treaty-making power vested in the President and the latter body. It was admitted that if the President should undertake to make a treaty with the Indians, Congress could not interfere with his so-doing, by and with the advice and consent of the Senate, but it was, on the other hand, maintained that Congress had the power to declare whether ' the tribes were independent nations for the purposes of treaty-making, and to render its declaration effective by refusing to recognize any subsequent treaties with them ; and this view prevailed. (See especially, Cong. Globe, 41st Cong., 3d Sess., 1870-1871, part i, pp. 763-765; part 3, pp. 1821-1825.) " Moore, Digest', 5: 220. i'' The Amiable Isabella, 6 Wheat, i, 71-73. 18 Ibid., and supra, sec. 107. WRIGHT— POWER TO MAKE AGREEMENTS. 323 (2) What sort of an obligation do they impose? No general answer can be given to the latter question. An executive agreement may impose an absolute obligation as would be true of the executive iettlement of a claim oy an American citizen against a foreign gov- ernment. After the President has agreed to a settlement, the claim becomes res adjudicata and if against the American citizen, cannot be raised by a subsequent administration against the foreign government. If injustice has been done the American citizen, it is a moral duty of the United States itself to compensate him.^^ On the other hand, an executive agreement may impose an obliga- tion strictly binding only the President, who makes it, as would be true of an exchange of notes over foreign policy, such as the Root-Takahira agreement, or the Lansing-Ishii agreement. In general, the President can bind only himself and his succes- sors in office by executive agreements, but in certain cases, executive agreements may impose a strong moral obligation upon the treaty- making power and Congress, and they may even be cognizable in the courts. The form of the obligation does not afifect its obligatory character. Executive agreements may be by exchange of notes, protocols, cartels, modi vivendl, etc., but in any case the obligation depends upon the subject matter.^" 162. Administrative Agreements under Authority of Act of Congress. To discover the subjects on which the President may make international agreements, we must examine his constitutional powers. For this purpose we may distinguish his powers as (i) head of the administration, (2) as commander-in-chief, (3) as the represen- tative organ in international relations. The President is Chief Executive and head of the Federal administration with power to direct and remove officials and the duty to " take care that the laws be faithfully executed." But the exercise of these powers, and the meeting of this responsibility is dependent upon the laws which Congress may pass, organizing the administration and defin- i» Meade v. U. S., 9 Wall. 691; Borchard, op. cit., p. 379; Comegys z: Vasse, I Pet. 193, 212. 20 See also infra, sec. 166. • PROC. AMER. PHIL. SOC, VOL. LX., V, M.\RCH 13, I922. 324 WRIGHT— POWER TO MAKE AGREEMENTS. ing the powers and responsibilities of office. In this capacity, therefore, the President may only make international agreements, under authority expressly delegated to him by Congress, or the treaty power, or agreements of a nature which he can carry out within the scope of existing legislation. Congress has often delegated power to the President to make agreements within the scope of a policy defined by statute, on such subjects as postal service, patents, trademarks, copyrights and commerce.-^ Such agreements appear to be dependent for their effectiveness upon the authorizing legis- lation, and are terminable, both nationally and internationally, at the discretion of Congress. " It cannot be supposed," wrote Secretary of State Gresham, " that it was intended, by the simple exchange of notes on January 31, 1891, to bind our governments, as by a treaty, to certain duties or remissions of duty on the specified articles, beyond the time when the Congress of the United States might, in the exercise of its constitutional powers, repeal the legisla- tion under which the arrangement was concluded." 22 While in effect, however, they are binding on the courts,-^ and the President, through his control of the administration, can usually see that they are observed. 163. Administrative Agreements under Authority of Treaty. The administrative powers of the President permit him to carry out treaties, which are the supreme law of the land, so far as Congress has supplied him with the necessary administrative ma- chinery and supplies. International agreements for this purpose, and under express authority of treaty, have been made with ref- erence to the definite marking and mapping of boundaries.-* Under authority of the treaty with Cuba (1903), as well as of congressional legislation. President Roosevelt acquired a lease at Guantanamo, Cuba, for a naval base.^^ The first Hague Conven- tion of 1899 apparently gave the President power to conclude com- promis for submitting cases to arbitration, but the Senate has since 21 Supra, sec. 61 ; Taft, op. cit., p. 135. 22 Moore, Digest, 5 : 362. 23 Field V. Clark, 143 U. S. 649. 2* Crandall, op. cit., pp. 117-118. 25 Ibid., p. 139. WRIGHT— POWER TO MAKE AGREEMENTS. 325 refused to consent to treaties delegating this power to the Pres- ident.2« 164. Independent Administrative Agreements. The President, as head of the administration, may also make international agreements, without express authority of statute or treaty, though it would seem that such agreements should not go beyond his own powers of execution. In 1850, however. President Fillmore authorized an agreement, whereby Great Britain ceded Horseshoe Reef, near the outlet of Lake Erie, on condition that the United States erect a lighthouse thereon, and refrain from fortifying it. The execution of this agreement required congres- sional appropriation and permanent abstention of Congress from authorizing fortification of this island. It would seem properly a subject for treaty, rather than executive agreement, but Congress had already made the necessary appropriation in 1849. This was, reenacted in 1854.^^ In 1864, President Lincoln agreed to extradite Arguelles to Spain, though no treaty required such action. It has generally been held since, that he exceeded his powers in thus making an agreement for extradition, yet on September 23, 1913, the President entered into an agreement with Great Britain for extradition between the Philip- pine Islands or Guam and British North Borneo, of fugtives for offenses specified in existing treaties.^® 165. Recent Practice. Perhaps the most remarkable example of such agreements is that made by President Roosevelt in 1905 for administering the customs houses of San Domingo : ^" " The Constitution," writes President Roosevelt in his Autobiography, " did not explicitly give me power to bring about the necessary agreement with Santo Domingo. But the Constitution did not forbid my doing what I did. I put the agreement into effect, and I continued its execution for two 20 Willoughby, op. cit., p. 473; Crandall, op. cit., pp. 11CH120, supra, sec. 62. 27 Malloy, treaties, etc., p. 663, 9 Stat. 380, 627 ; 10 Stat. 343. 28 Crandall, op. cit., p. 117; Corwin, The President's Control of Foreign Relations, p. 125. 23 Roosevelt, Autobiography, pp. 551-552. 326 WRIGHT— POWER TO MAKE AGREEMENTS. years before the Senate acted ; and I would have continued it until the end of my term, if necessary, without any action by Congress. But it was far preferable that there should be action by Congress, so that we might be pro- ceeding under a treaty which was the law of the land, and not merely by a direction of the Chief Executive, which would lapse when that particular Executive left office. I, therefore, did my best to get the Senate to ratify what I had done. There was a good deal of difficulty about it. Enough Republicans were absent to prevent the securing of a two-thirds vote for the treaty, and the Senate adjourned without any action at all, and with the feeling of entire self-satisfaction at having left the country in the po- sition of assuming a responsibility and then failing to fulfill it. Apparently ihe Senators in question felt that in some way they had upheld their dignity. All that they had really done was to shirk their duty. Somebody had to do that duty, so accordingly I did it. I went ahead and administered the proposed treaty anyhow, considering it as a simple agreement on the part of the Executive which would be converted into a treaty whenever the Senate acted. After a couple of years, the Senate did act, having previously made some utterly unimportant changes, which I ratified and persuaded Santo Domingo to ratify." This statement indicates that agreements of considerable political importance may be made by the President and that they cannot be prevented by the Senate, when the President controls the necessary ■means of execution. It is to be noted, however, that in President Roosevelt's opinion, they are binding only on the President that makes them. The latter limitation often does not apply in practice, though presumably the foreign government would have no ground for objection if a subsequent President discontinued such an execu- tive agreement. President Taft describes the executive agreement made by him as Secretary of War, under authority of President Roosevelt, for defining the relative jurisdictions of the United States and Panama in the cities of Colon and Panama at either end of the Canal.^" " The plan contained a great many different provisions. I had no power to make a treaty with Panama, but I did have, with the authority of the President, the right to make rules equivalent to law in the Zone. I therefore issued an order directing 'the carrying out of the plan agreed upon in so far as it was necessary to carry it out on our side of the line, on conditions that, and as long as, the regulations to be made by Panama were enforced by that government. This was approved by Secretary Hay, and the President, and has constituted down until the present day, I believe, the basis upon which the two governments are carried on in this close proximity. 30 Taft, op. cit., p. 112. WRIGHT— POWER TO MAKE AGREEMENTS. -327 It was attacked vigorously in the Senate as a usurpation of the treaty- making power of the Senate and I was summoned before a committee in the Senate to justify what had been done. There was a great deal of eloquence over this usurpation of the Senate's prerogative by Mr. Morgan and other Senators, but the modus vivendi continued as the practical agreement' between the nations for certainly more than seven years, and my impression is that it is still in force in most of its provisions." A similar agreement with Panama was made in October, 1914, for enforcing the neutrality of the Canal during the European war.^^ 166. The Validity of Administrative Agreements. Other modi vivendi made by the President have related to fisher- ies and boundary lines, pending permanent settlement by treaty or arbitration.^^ With reference to a modus vivendi made in 1859 for joint occupation of the Island of San Juan, pending decision of the Fuca sound boundary question, the court said : ^^ " The power to make and enforce such a temporary' convention re- specting its own territory is a necessary incident to every national govern- . ment, and adheres where the executive power is vested. Such conventions ' are not treaties within the meaning of the Constitution, and, as treaties su- preme law of the land, conclusive on the courts, but they are provisional ar- langements, rendered necessary by national differences involving the faith of. the nation and entitled to the respect of the courts. They are not a casting of the national will into the firm and permanent condition of law, and yet in some sort they are for the occasion an expression of the will of the people through their political organ, touching the matters affected; and to avoid unhappy collision between the political and judicial branches of the government, both which are in theory inseparably all one, such an ex- pression to a reasonable limit should be followed by the courts and not opposed, though extending to the temporary restraint or modification of the operation of existing statutes. Just as here, we think, this particular convention respecting San Juan should be allowed to modify for the time being the operation of the organic act of this Territory (Washington) so far forth as to exclude to the extent demanded by the political branch of the government of the United States, in the interest of peace, all territorial interference for the government of that island." In this case the court had refused to take jurisdiction of a murder committed on the island. Thus the island claimed by the United States, and justly so according to the final arbitration, was removed 31 Naval War College, Int. Law. Docs., 1916, p. 94. 32 Crandall, op. cit., p. 113. 33 Watts V. U. S., I Wash. Terr. 288, 294 (1870) ; Crandall, 0/). cit., p. 107. 328 WRIGHT— POWER TO MAKE AGREEMENTS. from the jurisdiction of the territory by executive agreement. Although in theory only temporary, in fact the arbitration was not held until 1871 and the joint occupation continued until 1873, a period of fourteen years. ^* Even longer, however, was the opera- tion of the North Atlantic fisheries modus vivendi of 1885, which practically continued until the arbitration of 1909. After considering such agreements as these. Professor Corwin gives his " final verdict " that " the President's prerogative in the making of international compacts of a temporary nature and not demanding enforcement by the courts, is one that is likely to become larger before it begins to shrink." ^^ 167. The Power to Make Military Agreements. As Commander-in-Chief, the President undoubtedly has power to make Cartels for exchange of prisoners of war, suspensions of arms, capitulations and armistices with the enemy. Such agree- ments may be made by commanding officers in the field if of a local and temporary effect such as a suspension of arms, but if of a general effect such as an armistice, they .must be by authority of the Commander-in-Chief.^^ Thus, President Lincoln was justified in repudiating the armistice made by General Sherman with Gen- eral Johnston in 1865 on the ground that a general armistice was within the President's power alone and General Sherman had ex- ceeded his powers.^^ The same is usually true of licenses to trade. The President was expressly authorized by act of Congress in 1861 to license trade with the enemy. The court held that the power was his alone and condemned a vessel running the blockade to New Orleans with a license from the Collector of Customs in New Or- leans authorized by General Banks and approved by Rear Admiral Farragut.^' 3* Moore, Int. Arbitrations, p. 222. 35 Corwin, op. cit., p. 112. 36 Lieber's Instructions, Gen. Ord. 100, 1863, Arts. 135, 140; Halleck, Int. Law, 4th ed. (Baker), 2: 346-347. 37 Ibid., 2 : 356, supra, sec. 26. 38 The Sea Lion, 5 Wall. 630 (1866); Moore, Digest, 7: 255. WRIGHT— POWER TO MAKE AGREEMENTS. 329 i68. Armistices and Preliminaries of Peace. But if it is difficult to draw the line separating the power of the President and that of field officers and admirals, it is equally difficult to draw the line between the power of the President as Commander-in-Chief and the treaty-making power. An armistice ending hostilities necessarily contains certain preliminaries of peace. This was true of the preliminaries of peace with Spain of August 12, 1898, and the preliminaries of peace and armistice with Ger- many of November 5 and 11, 1918. In each, the general condi- tions of peace were outlined, and in each the defeated enemy alleged that the conditions on which it had agreed to end hostilities were not carried out in the definitive treaty.^^ But though a defeated enemy may have little recourse in such circumstances, a more dif- ficult question is raised, with reference to the obligation of ' the Senate to consent to the ratification of a treaty in accord with the terms of the armistice. Can the President by ratification of an armistice, containing political terms of peace, oblige the full treaty-power to ratify the same terms in the final treaty? This issue was raised with reference to Article X of the League of Nations Covenant, which though included in the President's XlVth point, and formally agreed to by the allies and Germany in the exchange of notes of November 5, 19 18, on the basis of which the armistice of November 11 was made, was rejected by the Senate when it appeared in the final treaty.*'' Clearly an armistice ought not to affect the political terms of peace beyond the minimum necessary to bring hostilities to an end. Within this minimum, however, the President, as Commander-in-Chief, is competent to conclude armi- stices, and his agreement ought to be observed by the Senate in consenting to the definitive peace treaty. In the protocol of 1901 ending the Boxer uprising in China, the President not only agreed to a termination of military operations, but also to the indemnity which China should pay and other conditions, such as razing forts, and improving watercourses in which she would cooperate.*^ 3» On the obligation of armistices see Moore, 7: 336, supra, sec. 30, note 54- *^ Su/yra, sec. 30; Wright, Minn. Lazv Rev., 4: 35. *^ Crandall, op. cit., p. 104, infra, sec. 251. 330 WRIGHT— POWER TO MAKE AGREEMENTS. 169. Validity of Military Agreements. The President's power as Commander-in-Chief permits him to conclude agreements in time of peace as well as war. So President Monroe agreed to a delimitation of armaments on the Great Lakes in 18 1 7, which, however, he submitted a year later to the Senate, where it received ratification as a treaty. A series of agreements were made with Mexico between 1882 and 1896 for the mutual pursuit of border Indians and the President has often authorized the transit of foreign troops across the territory, a power thus justified by the Supreme Court : *- " While no act of Congress authorizes the executive department to permit' the introduction of foreign troops, the power to give such permis- sion without legislative assent was probably assumed to exist from the authorit}' of the President as Commander-in-Chief of the military and naval forces of the United States." In a dissenting opinion in this case. Justice Gray thought that for- eign troops could be admitted only by express consent of the nation which " must rest upon express treaty or statute." " It is not necessary," he added, " to consider the full extent of the power of the President in such matters." In spite of this dissent the power has been exercised by the President on many occasions and is cog- nizable in the courts because it brings into operation the accepted principle of international law, that armed troops and public vessels of foreign powers, within the territory by permission, are exempt from jurisdiction.*^ An anology may be made between the power of the President as Commander-in-Chief to permit the entry of for- eign military forces, and his power as the representative organ to receive foreign diplomatic officers. In both cases, the Pres- ident's act entitles the foreign agency to exemprlon from juris- diction.'** Most military agreements have been temporary in duration and of a character to be fulfilled by the President in the exercise of his independent power as Commander-in-Chief. The power of ad- mitting troops may, however, require cooperation of the courts and *2 Tucker v. Alexandroff, 183 U. S. 424, 435. *3 The Exchange v. McFaddon, 7 Cranch 116, 139. **/n re Baiz, 135 U. S. 403. WRIGHT— POWER TO MAKE AGREEMENTS. 331 the power to make armistices and preliminaries of peace may re- quire cooperation of the treaty power. An agreement of permanent character, and limiting Congress as well as the President ought, doubtless, to be by treaty, as was ultimately decided of the Great Lakes disarmament agreement of 1817. 170. Pozi'cr to Make Diplomatic Agreements. Because of his power to " receive ambassadors and other public ministers " and to negotiate treaties, the President is the repre- sentative organ of the government and the sole organ of foreign communication. As such he has certain powers of agreement mak- ing. Thus agreements, usually by exchange of notes, defining ex- ecutive policy have often been concluded. The Hay open door policy of 1 899-1900, the Root-Takahira and Lansing-Ishii agree- ments of 1908 and 1917, defining American policy in the Far East, and the Gentlemen's agreement of 1907, relating to Japanese im- migration, are of this character. Such agreements are in strictness binding only on the President under whose authority they are made, but if not repudiated would be presumed to have been accepted by a succeeding President. Thus Secretar}^ Lansing in publishing the Lansing-Ishii agreement stated that it was a reaffirmation of the " open door " policy.''^ Of similar character are agreements to conclude treaties. We have referred to preliminaries of peace made under the President's power as Commander-in-Chief. From his power as representative organ, the President has agreed to negotiate treaties on specified subjects. Thus an agreement preliminary to the treaty submitting the Behring Sea case to arbitration and agreements for negotiating canal treaties with Costa Rica and Nicaragua have been made.'*^ Such agreements merely require that treaty negotiations be at- tempted. They would seem to impose no obligation upon the Senate to accept the treaty or at most an extremely attenuated obli- gation. *' League of Nations (World Peace Foundation, Boston), I, No. 8, p. 459- *^ Crandall, op. cit., p. iii. 332 WRIGHT— POWER TO MAKE AGREEMENTS. 171. Diplomatic Agreements Settling Controversies. The most frequent types of agreement made under the Pres- ident's representative powers are those setthng international contro- versies. Unless authorized by express treaty or act of Congress this power is confined to the settlement of claims by American citizens against foreign governments. Such settlement of individual claims may be made either by direct negotiation, or by submission of the case to a conciliation commission or to arbitration. J. B. Moore states that thirty-one cases have been settled directly by formal executive agreement, and twenty-seven by arbitration based on ex- ecutive agreement. In nineteen such cases formal treaties have been made for submitting the case to arbitration.*^ The settlement of foreign claims against the United States or of national claims involving territory, maritime jurisdiction, bellig- erent and neutral rights, etc.. has generally been by treaty, or by arbitration authorized by treaty.*^ In a few cases of foreign pecuniary claims, the President through the Secretary of State has agreed to urge upon Congress the justice of the claim, but he has never assumed to bind the United States to pay such a claim without a treaty.*^ Should he do so, doubtless the foreign gov- ernment would be entitled to hold the United States bound, since in reference to the meeting of international responsibilities, the rep- resentative organ speaks for the nation under international law.^" " In two instances claims of foreigners against the United States were submitted to arbitral tribunals by executive agreement, but in both in- stances it was expressly provided that any awards that might be made should be a claim, not against the United States, but solely against the estates of certain American citizens, whose estates were to be adjusted be- fore the same arbitral tribunal." ^^ *7 Moore, Pol. Sci. Oiiar., 20: 414. *8 Foster, Yale Lazv //., 11: 77 (Dec, 1901) ; Moore, Digest, 5: 211; Willoughby, op. cit., p. 469. *^ See attitude of the Executive in Chinese and Italian Lynching cases, 1890-1901, Moore, Digest, 6: 834, 842. 5" Supra, sec. 34. ^^ C. C. Hyde, " Agreements of the United States other than Treaties," Greenbag, 17: 2^2,' cited Willoughby, op. cit., p. 469. WRIGHT— POWER TO MAKE AGREEMENTS. 333 172. Validity of Diplomatic ."Agreements. The President may and must interpret treaties and international law in applying their rules and principles for the settlement of claims of American citizens but he has no power to make general interpretations of treaty, or of international law. In fact, how- ever, his decisions establish precendents, which his successors will find it difficult to avoid. Thus the agreement of President Mc- Kinley to accept the last three principles of the Declaration of Paris, during the Spanish war, would doubtless go far toward establishing these principles as international law obligatory upon the United States in future wars." The President has no authority to agree to general interpretations or reservations to treaties. Such docu- ments are not valid unless consented to by the Senate. ^^ But the precedents established by presidential interpretation in particular cases may amount to an authoritative interpretation. Thus the Spanish Treaty Claims Commission felt justified in applying Article VII of the treaty with Spain of 1795, which forbade the "embargo or detention" of "vessels or effects" of subjects or citizens of the other contracting power, to detention of goods on land. The negotiators of the treaty appear to have intended application only to property at sea. No question was raised for over seventy years, after which the American Secretary of State consistently maintained the broad interpretation.^* " Whether or not," said the court. " the clause was originally intended to embrace real estate and personal property on land as well as vessels and their cargoes, the same has been so construed by the United States and this construction has been concurred in by Spain; and therefore the com- mission will adhere to such construction in making its decisions." " There is," says President Taf t, " much practical framing of our foreign policies in the executive conduct of our foreign relations." ^^ ^2 Proclamations and Decrees during the war with Spain, p. 77. ^^ Supra, sees. 27, 28. 5* General Principles adopted April 28, 1903, No. 10, Special Report, Wm. E. Fuller, Washington, 1907, p. 23; Crandall, op. cit., p. 384. Executive interpretation of the Alaska Purchase treaty was followed by the court in determining the extent of jurisdiction in Behring Sea prior to the arbitra- tion, and in general the court follows executive interpretation of political questions (supra, sec. 107). s^Taft, op. cit., p. 113; supra, sec. 38. 334. WRIGHT— POWER TO MAKE AGREEMENTS. Though in theory the President's independent power is confined to making agreements of temporary effect, confined to particular cases or binding the Executive alone, yet in practice and by the operation of precedents he may, by such agreements, bind other departments and through interpretations of treaties and international law bind the state as a whole. B. The Power to Make Treaties. 173. TJic Subject Matter of Treaties. The framers of the American Constitution did not anticipate or desire the conclusion of many treaties.^*' For this reason they made the process of treaty conclusion difficult, requiring that the President act only with the advice and consent of two-thirds of the Senators present,^" some even wishing to require adhesion of the House of Representatives®^ or two-thirds majority of the entire Senate. ^^ This hope, however, has scarcely been realized. With a total of 595 treaties from its foundation to August, 191 4, the United States ^6 In the Federal Convention, Gonverneur Morris " was not solicitous to multiply and facilitate treaties," and Madison " observed that it had been too easy in the present Congress to make treaties, although nine States were required for that purpose." Farrand, Records of the Federal Convention, 2 : 393; 54§- See also Jefiferson, Manual of Congressional Practice, sec. 52, and letter to Madison, March 23, 1815, Moore, Int. Law Digest, 5 : 162, 310. s'' Under the Articles of Confederation, the treaty-making power was vested in nine States in Congress (Art. IX), and in some of the early drafts of the Constitution it was vested in Congress (Farrand, 2: 143), later in the Senate (ibid., 2: 169, 183"), and the President was finally added on the argument that treaty-making was properly an executive function (ibid., 2: 297), and that a national agency was necessary as an offset to the special State interest of the Senate. (Ibid., 2: 392.) 58 Pennsylvania especially desired this. G. Morris, of that State, wanted to add " but no treaty shall be binding on the United States which is not ratified by a law" (Farrand, 2: 297, 392). Later, Wilson, of Pennsylvania, proposed to add " and Llouse of Representatives," saying that " as treaties are to have the operation of laws they ought to have the sanction of laws also." On vote, Pennsylvania alone supported the motion. (Ibid., 2: 538.) This is the vote referred to by Washington in his celebrated message on the Jay Treaty where he refused to recognize the claim of the House of Representatives to participate in treaty-making. (Ibid., 3 : 371 ; Annals of Congress, 4th Cong., ist Sess., p. 761, Richardson, Messages, i: 195.) 59 Farrand, 2 : 549. WRIGHT— POWER TO MAKE AGREEMENTS. 335 has averaged more than four a year, and for the twentieth century, fifteen a year, or a treaty ratified every three weeks.*'" And this, in spite of the frequent dit^erences between the President and the Senate often resulting in the failure to ratify.*'^ These treaties have been on a very wide variety of subjects. The United States has ratified treaties politically organizing inter- national society. Such have been alliances, as that with France in 1778; guarantees of territory or neutrality as in the French treaty of 1778 (Art. XI), the treaty with New Granada or Colombia of 1846 (Art. XXXV), with Panama in 1903 (Art. I), and with Haiti in 1916 (Art. XIV) ; limitations of the power to declare war by re- quiring delay as in the twenty Bryan treaties of 1914 or by limiting the objects for which force maybe used as in the II Hague Conven- tion of 1907 ; and limitations of armament as in the Great Lakes agree- ment of 181 7. The United States has also ratified many treaties administratively organizing international society, such as postal, telegraphic, cable, radio, sanitary, slave trade, fishery, migratory bird and other conventions. It has become a party to treaties legally organizing international society through the definition of principles of international law as in the Geneva and Hague Conven- tions, through the establishment of international courts and arbitra- tion tribunals and through the agreement to submit certain types of cases to arbitration. Finally there have been treaties of annexation and boundary, treaties settling claims, treaties of commerce and navi- gation, consular and extradition conventions, and conventions de- fining the rights of aliens.*'- No treaty has ever been declared unconstitutional.*'^ By prac- tice, by the terms in which the power is granted in the Constitution, 60 By 25-year periods, treaties have been concluded as follows: I778-I799i 21; 1800-1824, 20; 1825-1849, 63: 1850-1874, 141; 1875-1899, 142; 1900-1914. 208. This is in accord with the official enumeration of treaties (excluding In- dian treaties), begun by the Department of State on January 29, 1908, with Treaty Series, No. 489. (See Check-list of U. S. Public Documents. 1911, p. 978.) Including the protocols and modi viz'endi printed in Malloy and Charles' Collections, the total for the period would be 633. 61 Infra, sec. 177. 62 See Foster, Practice of Diplomacy, pp. 243-244. 63 Corwin, National Supremacy, p. 5; Anderson, Am. Jl. Int. Lazv, i: 647; Willoughby, op. cit., p. 493, supra, sec. 46. 336 WRIGHT— POWER TO MAKE AGREEMENTS. and by direct statement of the supreme court/"* we may be certain that the power extends to " any matter which is properly the sub- ject of negotiations with a foreign country," limited only by express or implied constitutional prohibitions the effect of which is in the main confined to the means through which the purposes of the treaty may be attained.*'^ 174. The Initiation of Treaties. Treaties may of course be initiated or suggested by a foreign power, but if by the United States, the initiative has ordinarily been taken by the President. Congress has sometimes suggested nego- tiations by joint or concurrent resolutions originating in the House of Representatives as well as the Senate. Thus resolutions of 1890, 1897, s"d 1910 suggested the negotiation of arbitration treaties and acts of 1 91 6 and 1921. negotiations for general disarmament. A resolution of 1904 suggested the negotiation of a treaty for protecting the Behring Sea seals and one of 1909 the protection of American citizens in Russia. In most of these cases, negotiations were at- tempted, not always with success (at least once, success was frus- trated by the Senate veto ) , but says Crandall : ^^ "Although it is not to be doubted that the President will always give careful consideration to the views of Congress, deliberately expressed as to instituting negotiations, he cannot be compelled to exercise a power en- trusted to him under the Constitution by a resolution of either house or of both houses of Congress." The reason was pointed out in a report of the Senate foreign rela- tions committee in 181 5: " Since the President conducts correspondence with foreign nations, he would be more competent to determine when, how and upon what subjects negotiations could be urged with the greatest prospect of success." ^"^ 6* Geofroy v. Riggs, 133 U. S. 258 (1890) ; Wright, The Constitutionality of Treaties, Am. Jl. Int. Law, 13: 262. 6^ Supra, sees. 67-69. 66 Crandall, op. cit., p. 74. 6T Compilation of Reports of the Senate Committee on Foreign Relations, Sen. Doc, No. 231, 56th Cong., 2d Sess., 8: 22; Crandall, op. cit., p. 75; Hayden, op. cit., p. 206, infra, sec. 203. WRIGHT— POWER TO AIAKE AGREEMENTS. 337 175. The Appointment of Negotiators. Before 181 5, special missions, appointed by the President with advice and consent of the Senate, were sent to conclude the most important treaties, although a number of less important missions, such as that of John Paul Jones to Algeria in 1792, were commis- sioned by the President alone. Since 181 5 "treaties have, with few exceptions, been negotiated through the Secretary of State, the regu- lar diplomatic representatives and consular officers, or special agents, empowered and commissioned to negotiate the treaty by the Pres- ident without special confirmation for this purpose by the Senate." " Commissioners to the Panama Congress of 1826, to negotiate the treaty of Washington with Great Britain in 1871, and to negotiate with China in 1880 appear to be the only special missions consented to by the Senate since the war of 1812. Possibly the difficulty which President Madison encountered in getting the Senate to consent to the appointments of commissioners for concluding the treaty of Ghent ending that war, accounts in part for this fact. Over four hundred commissioners and agents have been authorized to nego- tiate by the President alone, including the important missions ending the Mexican, Spanish and World Wars, and the missions represent- ing the United States at the two Hague, the Algeciras, the Versailles and the limitation of armament conferences. The Senate objected to this practice of negotiating through presidential agents in the case of the Korean treaty of 1882, but in 1888 and in 1893 the Senate Foreign Relations Committee recognized the legitimacy of the prac- tice."" " The President of the United States," said Senator Sherman, Chairman of the Committee in 1888, "has the power to propose treaties subject to ratification by the Senate, and he may use such agencies as he chooses to employ, except that he cannot take any money from the treasury to pay these agents without an appropriation by law. He can use such instruments as he pleases." 176. The Negotiation and Signature of Treaties. Negotiation and signature have usually been under authority of the President alone. He has usually prepared the instructions and ^8 Crandall, op. cit., p. 76. ^•9 Cong. Rec, Aug. 7, 1888, p. 7285. See also iufra, sees. 239, 240. 338 WRIGHT— POWER TO MAKE AGREEMENTS. full powers of the negotiators. Not since the first few years of the Republic have these been submitted to the Senate. In about eighteen instances the advice of the Senate has been sought by the President prior to signature of the treaty and almost half of these cases oc- curred in the administration of Washington, prior to the negotia- tion of the Jay treaty (1794) which established the precedent of Presidential independence in negotiation.'" Only once was advice sought by the President in person and on that occasion, a few months after the Constitution went into operation, President Washington's experiences were such that an eye witness described his departure from the Senate chamber as " with sullen dignity " and " a discon- solate air." "^ On the few occasions since this experience when Senate advice has been sought before signature, it has been by mes- sage responded to by Senate resolution. Thus in 1830 President Jackson sought the advice of the Senate on an Indian treaty prior to signature, but in doing so apologized " for departing from a long and for many years an unbroken usage in similar cases," which de- parture he thought justified by distinctive considerations applicable to Indian treaties. In only ten later cases has such prior advice been sought, though informal conferences with individual senators or with the Senate Foreign Relations Committee have been more frequent.'^- "The fact," said Senator Bacon in 1906, "that he (Washington) con- ferred personally with the Senate as to the propriety of making treaties before attempting to negotiate them, shows what he understood to be the intention of the Convention — that the Senate should be not simply the body to say yes or no to the President when he proposed a treaty, but that the Senate should be the advisor of the President whether he should attempt to negotiate a treaty. What possible doubt can there be under such cir- cumstances as to what was his understanding of the purpose and intention of those who framed the Constitution? And what possible doubt can there be that his understanding was correct? ... It is true that*that practice 70 Hayden, op. cit., p. 80. 71 Maclay, Sketches of Debates in the First Senate of the United States, G. W. Harris, ed., p. 125. See also Crandall, op. cit., 67-68; Hayden, op. cit., 18-27, and infra, sec. 260. 72 Senate debate, Feb. 6, 1906, cited supra, sec. 76, note 16. See also Richardson, Messages, 2: 478. See also Senator Lodge, Scribncrs, 31: 33, Sen. Doc. 104, 57th Cong., ist Sess. ; and Crandall, op. cit., pp. 68-72, 75. WRIGHT— POWER TO AIAKE AGREEMENTS. 339 has been abandoned, so far as concerns the President coming in person to sit in a chair on the right of the presiding officer to confer with members of the Senate, as our rules still provide he shall do should he come here per- sonally, showing we recognize the propriety of his coming and his right to come.'^^ But nevertheless during my official term it has been the practice of Presidents and Secretaries of State to confer with Senators as to the propriety of negotiating or attempting to negotiate a treaty. " I know in my own experience that it was the frequent practice of Secretary Hay, not simply after a proposed treaty had been negotiated, but' before he had ever conferred with the representatives of the foreign power, to seek to have conferences with Senators to know what they thought of such and such a proposition; and if the subject-matter was a proper matter for negotiation, what Senators thought as to certain provisions; and he advised with them as to what provisions should be incorporated. " I recollect two treaties in particular. One is the general arbitration treaty. I do not know whether he conferred with all Senators, but I think he did. I think he conferred with every Senator in this Chamber, either in writing or in person, as to the general arbitration treaty. He certainly con- ferred with me." Such informal conferences clearly lack legal significance. They do not bind the Senate in any way.'* The practice, how^ever, indicates the development of an important constitutional understanding.'^^ On some occasions, notably for concluding the Treaty of Paris ending the Spanish war, Senators have been appointed as commis- sioners to negotiate, a practice deplored by Senator Hoar on the grounds that it prevents an independent consideration of the treat) by the Senate. '° Signature of treaties has. since very early times, been under the authority of the President alone. On several occasions the Amer- ican negotiators have appended reservations to their signatures of multilateral treaties such as the Hague Conventions.'^'^ '3 But see opinion of Senator Lodge, infra, sec. 266, note 35. ''* See Senator Spooner's suggestion following Senator Bacon's remarks, and Corwin, op. cit., p. 188, footnote. ^5 Infra, sec. 266, par. 4. ■^0 Con,^. Rec, 57th Cong., 2d Sess., p. 2695 ; Senator Hoar, Autobiography, 2: so; Crandall, op. cit., p. 78; Corwin, op. cit., p. 66. Senators Lodge and Underwood were appointed delegates to the conference on limitation of armament, 1921. '"Crandall, op. cit., pp. 76, 93; Scott, ed., Reports of the Hague Conferences, Introduction, pp. xxv et seq.; A. D. White, Autobiography, 2: 335^341. PROC. .\MER. PHIL. SCO., VOL. LX, \V, MARCH I3, I922. 340 WRIGHT— POWER TO MAKE AGREEMENTS. 177. Consent to the Ratification of Treaties. The need of Senate consent to treaties is absolute, consequently the Senate may reject a treaty altogether, though, according to Jay, such action would be improper if it had consented to the full powers and instructions of the negotiators and these instructions had been faithfully observed.'^ But with the present practice of presidential negotiation and signature, this limitation is unimportant. Of about 650 signed treaties the Senate has refused consent to ratification of about twenty.'" Among the more important treaties thus vetoed may be mentioned commercial and reciprocity treaties with Switzer- land, 1835; with the German Zollverein, 1844; with Great Britain for Canada in settlement of the fisheries question, 1888; and the Kasson reciprocity treaties of 1899; annexation treaties with Texas, 1844; Hawaii, 1855; San Domingo, 1869; and Denmark for the Virgin Islands, 1868; arbitration and claims treaties including the Johnson-Clarendon treaty for settlement of the Alabama claims, 1868; and the Olney-Pauncefote general arbitration treaty with Great Britain, 1897; canal treaties with Colombia, 1869 and 1870; the Knox financial administration treaties with Nicaragua and Hon- duras, 191 1 ; and the Treaty of Versailles, 1920. It is to be noticed that in most of these cases, the end sought was eventually achieved, though in the cases of annexation of Hawaii and the Virgin Islands, and settlement of the Canadian fisheries question, not until many years later. This practice appears to conflict with the assertion of John Quincy Adams as Secretary of State, that the King of Spain was under an absolute obligation to ratify the Florida purchase treaty of 1819 on failure of which the United States would be entitled " to compel the performance of the engagement as far as compulsion can accomplish it." ^^ Other Secretaries of State have ^^ Crandall, op. cit., p. 79, supra, sec. 25. '■^ Crandall, op. cit., p. 82 ; Moore, Digest, 3 : 26 ; Latane, U. S. and Latin America, N. Y., 1920, p. 283 ; Jones, Caribbean Interests of the U. S., N. Y., 1916, pp. 170, 179. For resolution rejecting Treaty of Versailles, see Cong. Rec, March 19, 1920, 59: 4916. For summary of Senate Proceedings on this treaty see League of Nations (World Peace Foundation), vol. 3, No. 4. For Proceedings in cases of treaties rejected by the Senate see 66th Cong., ist Sess., Sen. Doc. No. 26, pp. 80 et seq. s" Moore, Digest, 5 : 189-190. WRIGHT— POWER TO MAKE AGREEMENTS. 341 explained, however, that the United States is under no similar obli- gation to ratify negotiated treaties, because the other party is pre- sumed to understand the lack of identity between the negotiating and ratifying authorities under our Constitution, even when the right of reservation has not, as it has in most cases, been expressly reserved in the full powers of the negotiators.®^ The Senate's right to qualify its consent to ratification by reser- vations, amendments and interpretations was established through a reservation to the Jay treaty of 1794,®" has been exercised in about seventy cases,®^ and has been judicially recognized.®* " In this country a treaty is something more than a contract, for the Federal Constitution declares it to be the law of the land. If so, before it can become a law, the Senate, in whom rests the authority to ratify or approve it, must agree to it. But the Senate are not required to adopt or reject it as a whole, but may modify or amend it." A refusal of the Senate either to reject or consent to ratification is of questionable propriety. Senator Sumner of Massachusetts, as Chairman of the Senate Foreign Relations Committee, succeeded in keeping the treaty for cession of the Virgin Islands by Denmark, submitted to it on December 3, 1867, pigeon-holed for over two years, when it was finally rejected.®^ The Senate may suggest interpretations or pass resolutions not qualifying its consent to a treaty, as it did in the case of the Treaty of Paris ending the Spanish war. A majority of the Senate passed a resolution favoring the ultimate independence of the Philippines but the court held that such resolutions ' are legally of no effect. " The meaning of the treaty," said the Supreme Court, " cannot be ^''^ Supra, sec. 26; Moore, Digest, 5: 200; Crandall, op. cit., p. 94. 82 Hayden, op. cit., p. 75. 83 Senator Lodge, loc. cit., supra, note 67 ; Crandall, op. cit., pp. 79-81 ; Treaty Reservations bj' Foreign Powers and the United States, Sen. Doc. 72, 67th Cong., 1st Sess., 1921 ; David Hunter Miller, Reservations to Treaties, N. Y., 1919; Q. Wrightt, Amendments and Reservations to the Treaty, Minn. L. R.. 4: 14. 8* Haver v. Yaker, 9 Wall. ^2. See also Brown, J., in Fourteen Diamond Rings ?'. U. S., 176 (1901) ; Willoughby, op. cit., p. 462. 85 Moore, Digest, i : 610. The French guarantee treaty, signed at the same time as the treaty of Versailles, appears to have been reposing in the archives of the Senate Foreign Relations Committee since its submission to the Senate by President Wilson in 1919. 342 WRIGHT— POWER TO MAKE AGREEMENTS. controlled by subsequent explanations of some of those who may have voted to ratify it." ^'^ 178. TJie Ratification of Treaties. The final act of ratification belongs to the President.^' He may refuse to submit a treaty to the Senate altogether as he has done in nine instances ; he may submit it with recommendations for amend- ment as he has done in eleven cases ; he may withdraw it from the Senate before that body has voted on it, illustrated by ten cases ; and he may refuse to ratify a treaty consented to by the Senate with or without reservations as he has done in fifteen cases.*® Thus Presidents Roosevelt and Taft each abandoned arbitration treaties when it appeared that the Senate was prepared to insist upon es- sential alterations.*^ As he is the best judge of the advisability of initiating negotiations on a given subject, so he is the best judge of the probability of a foreign nation accepting reservations or amendments. Foreign nations sometimes regard it as a discourtesy to have modifications of a negotiated treaty presented to them as an ultimatum, without their having had an opportunity to discuss them."'' It is therefore often advisable for the President to aban- don a treaty which he thinks will probably be unacceptable to the other signatory. 179. The Exchange of Ratifications. The exchange of ratifications is performed under authority of the President and makes the treaty internationally binding."^ The other party to the treatv may refuse to accept Senate amendments or reservations in which case the treaty fails. Thus Great Britain 86 Fourteen Diamond Rings v. U. S., 183 U. S. 176. See also N. Y. Indians v. U. S., 170 U. S. i (1898); Moore, Digest, 5: 210; Crandall, op. cit., p. 88; supra, sec. 27. 8^ Shepherd v. Insurance Co., 40 Fed. 341, 347; Willoughby, op. cit., p. 466; Crandall, op. cit., pp. 81, 94, 97: Taft, op. cit., p. 106; Black, Con- stitutional Law, p. 124; Foster, op. cit.. p. 274; Senator Spooner of Wis., debate referred to supra, sec. 76, note 16 ; Moore, Digest, 5 : 202. 88 Crandall, op. cit., pp. 95, 99. ^^ Ibid., p. 98; Taft, op. cit., p. 106; Charles, Treaties, etc., p. 380. 90 Willoughby, op. cit., p. 464, and supra, sec. 26. 91 Crandall, op. cit., p. 93, and supra, sec. 29. WRIGHT— POWER TO MAKE AGREEMENTS. 343 rejected, after Senate alterat'on, a boundary settlement treaty in 1803, a slave trade convention in 1824 and the first Hay-Pauncefote Canal treaty in 1900.°- During exchange of ratifications, however, no new interpretations or reservations may be made. The Presi- dent's representatives exchanged explanations to the Mexican peace treaty of 1848 and Clayton-Bulwer canal treaty with Great Britain of 1850 on exchange of ratifications, but, not having been submitted to the Senate, these explanations were of doubtful validity. Napo- leon reserved on the treaty of 1801. at exchange of ratifications, but President Jefiferson promptly resubmitted the treaty to the Senate which consented to the new reservation. This has been the usual practice. ^^ I So. The Proclamation of Treaties. After ratifications have been exchanged, the treaty must be pro- claimed to have validity as the law of the land and this act is in the power of the President alone.''* As an international obligation the treaty is binding from exchange of ratifications and such obliga- tion is held to date back to the time of signature.^^ As a law bind- ing individuals, however, the rule is different : ®^ " As the individual citizen, on whose rights of property it operates, has no means of knowing anything of it while before the Senate, it would be wrong in principle to hold him bound by it, as the law of the land, until it was ratified and proclaimed. And to construe the law, so as to make the ratification of the treaty relate back to its signing, thereby divesting a title already vested, would be manifestly unjust, and cannot be sanctioned." Thus a secret treaty might be internationally binding in the United States but it could not be the supreme law of the land. We must, therefore, regard proclamation as the first step in the execution of a treaty rather than the last step in its making. A treaty which is not self-executing may require legislation in addition to procla- 92 Moore, Digest, 5: 199-200; Hayden, op. cit., p. 145; supra, sec. 26. S3 Crandall, op. cit., pp. 85-92 ; and supra, sec. 27. 9* Crandall, op. cit., pp. 94-95 ; Moore, Digest, 5 : 210. ^^ Haver r. Yaker, 9 Wall. 32, supra, sees. 15, 29. ^^Ibid. See also Rev. Stat., sec. 210; Comp. Stat, sec. 308, and supra, sec. 15, note 14. 344 WRIGHT— POWER TO MAKE AGREEMENTS. mation to be executable. The power to perform such acts has been considered elsewhere.^" C. The Power to Terminate Treaties. i8i. Change in Conditions. Certain provisions of treaty may be terminated by war. The courts have power, in controversies coming before them, to dis- tinguish, on the basis of international law, those provisions of treaty thus affected, from those which are unaffected or merely suspended during the war, in case the political organs of the gov- ernment have made no decision. ^^ In controversies with foreign governments, the President may recognize these distinctions. Cer- tain provisions may become obsolete by a change of material con- ditions, through operation of the implied clause " rebus sic stan- tibus." It belongs to the President as the representative organ to decide when treaty provisions are thus terminated."^ 182. Violation of Treaty by One Party. Treaties may become voidable by reason of violation by the other party and question has been raised whether the power to de- clare such a treaty void rests with Congress or the treaty-making power."" Justice Iredell thought the power belonged to Congress"^ and on July 7, 1798, Congress held that it had the power when it declared that : ^°- " Whereas the treaties concluded between the United States and France have been repeatedly violated on the part of the French government ; and the just claims of the United States for reparation of the injuries so com- mitted have been refused, and their attempts to negotiate an amicable ad- justment of all complaints between the two nations have been repelled with indignity, etc.," therefore, " Be it enacted . . . That the United States are of right freed and exonerated from the stipulations of the treaties and of the ^^ Supra, chap, x and sec. 137. 88 Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464, 494 (1823), Moore, Digest. 5: 37-2-386. 89 Moore, Digest, 3: 190; 5: 335-341; supra, sec. 107, note 63. ii^o Mr. Madison to Mr. Pendleton, Jan. 2, 1791, ibid., 5: 321. 101 Ware ?■. Hylton, 3 Dall. 199, 261 (1796). 102 I Stat., 578; Moore, Digest, 5: 356; Richardson, Messages, 7: 518. WRIGHT— POWER TO MAKE AGREEMENTS. 345 consular convention, heretofore concluded between the United States and France; and that the same shall not henceforth be regarded as legally obligatory on the Government or citizens of the United States." This appears to be the only case of the kind. The courts have repeatedly held that until the political departments have acted they are bound to apply voidable treaties. ^"^ " If the attitude of Italy was, as contended, a violation of the obligation of the treaty, which in international law would have justified the United States in denouncing the treaty as no longer obligatory, it did not auto- matically have that effect. If the United States elected not to declare its abrogation, or come to a rupture, the treaty would remain in force. It was only voidable, not void; and if the United States should prefer, it might waive any breach which in its judgment had occurred and conform to its own obligations as if there had been no such breach, i Kent's Comm., p. 175." 183. Conclusion of New Treaty. Treaties may be terminated by negotiation of a new treaty by the same parties, for which the treaty power alone is competent. Thus in vetoing the Chinese exclusion act of 1879 President Hayes wrote : 10* . "The bill before me does not enjoin upon the President the abrogation of the entire Burlingame treaty, much less of the principal treaty of which it is the supplement. As the power of modifying an existing treaty, whether by adding or striking out provisions, is a part of the treaty-making power under the Constitution, its exercise is not competent for Congress, nor would the assent of China to this partial abrogation of the treaty make the action of Congress in thus procuring an amendment of a treaty a competent exercise of authority under the Constitution." Provisions of an earlier treaty will of course be superseded by con- flicting provisions of a later treaty between the same parties/"' but in order to terminate the earlier treaty as a whole the intention so to do must be clearly expressed, as was indicated by the controversy over effect of the proposed Hay-Pauncefote canal treaty of 1900 103 Charlton v. Kelly, 229 U. S. 447 ; Ware t'. Hylton, 3 Dall. 199, 261 (1796) ; In re Thomas, 12 Blatch 370; Terlinden z: Ames, 184 U. S. 270, 288 (1902); Doe V. Braden, 16 How. 638; Jones z: Walker, 2 Paine 688; Moore, Digest, 5: 320; Willoughby, op. cit., p. 1007, supra, sec. 107, note 63. 10* Richardson, Messages, 7: 519. 1*^5 Gushing. Alt. Gen., 6 Op. 291; Wright, Am. Jl. Int. Law, 11: 576; Moore, Digest, 5 : 363-4. 346 WRIGHT— POWER TO MAKE AGREEMENTS. and the actual treaty of 1901 upon the Clayton-Bulwer treaty of i85o.^o<' 184. Denunciation by Congress. Finally a treaty may be terminated by denunciation, according to its own terms. A period of six months' to a year's notice is usually required. There has been question whether notice should be given by Congress, by the treaty-making power or by the Presi- dent, and examples can be found of each practice. Congress has frequently passed resolutions of denunciation as it did of the Brit- ish treaties of 1827 in 1846; of 1854 in 1866; and of 1871 in 1885 as to certain articles. The President has usually carried out such resolutions, but in 1865, even though he had signed a congressional resolution which " adopted " and " ratified " his notice for termi- nating the Great Lakes disarmament agreement of 181 7, President Lincoln withdrew the notice and the treaty continued effective.^"'^ President Hayes doubted the competence of Congress to direct the President to negotiate modifications of an existing treaty and pointed out that unless a treaty expressly provided for partial denuncia- tion such a step would be impossible.^°^ " As the other high contracting party has entered into no treaty obli- gations except such as include the part denounced, the denunciation by one party of the part necessarily liberates the other party from the whole treaty." President Wilson, however, conducted negotiations for modifica- tion of all treaty provisions in conflict with the La FoUette Sea- man's Act of March 191 5 as directed by Section 16 of that Act. He, however, refused to act under the like direction of Article 34 of the Jones Merchant Marine Act of June 5, 1920. It would seem, there- fore, that the President is the final authority to denounce a treaty, 1"^ Moore, Digest, 3 : 212 ct scq. Sir Edward Grey, British Sec. of State for Foreign Affairs, to British Ambassador Bryce, Nov. 14, 1912, Diplo- matic History of the Panama Canal, 63d Cong., 2d Sess., Sen. Doc. 474, pp. 85-86. 107 Fifty-sixth Cong., ist Sess., House Doc, No. 471, pp. 32-34; Crandall, of>. cit., p. 462. 108 Richardson, Messages, 7: 519. WRIGHT— POWER TO MAKE AGREEMENTS. 347 and while he may not be able to give notice without consent of Con- gress or other authority, he cannot be compelled to act by Congress. This would be in accord with the general practice of presidential independence in conducting foreign relations.^"^ 185. Denunciation by the Treaty-Making Power. The Senate has contended that consent of the House of Repre- sentatives to the denunciation of a treaty is not necessary and the Danish treaty of 1826 was denounced by the President with con- sent of the Senate alone. This method was questioned by Senator Sumner on the ground that it was the repeal of a law to which Congress must assent, but was sustained by the Foreign Relations Committee : ^^° " As to this convention, and all others of like character, the com- mittee are clear in the opinion that it is competent for the President and Senate, acting together, to terminate it in the manner prescribed by the nth article (of the treaty) without the aid or intervention of legislation by Congress, and that when so terminated it is at an end to every extent, both as a contract befween the governments and as a law of the land." 186. Denunciation by the President. Finally there have been several examples of denunciation by the President alone. President Taft tells of his denunciation of the Russian treaty of 1832 in 191 1. The issue had arisen over Russian persecution of American Jews : ^^^ " The resolution of the House of Representatives was drawn in lan- guage which would have given offense to Russia, as doubtless its framers intended to do. With the responsibility of maintaining as friendly relations as possible with all the world, it seemed to me that if the treaty had to be abrogated, it ought to be done as politely as possible, with the hope of negotiating a new treaty less subject to dispute, and giving more satisfactory results. With the knowledge that the resolution was sure to pass the Senate, I took the step of annulling the treaty myself and giving a year's notice to Russia of the annulment in proper and courteous expressions, on the ground that we had differed so radically as to its construction and the treaty was so old that it would be wiser to make a new treaty more ^"^ See infra, sees. 174, 202, 203. 110 Thirty-fourth Cong., ist Sess., Senate Report, No. 97, reprinted in Cong. Rec, Nov. 8, 1919, 58: 8605. See also IVIessage of Pres. Pierce, Dec. 3, 1855. Richardson, Messages, 3: 334; Crandall, op. cit., p. 459. ^11 Taft, op. cit., pp. 116-117. 348 WRIGHT— POWER TO MAKE AGREEMENTS. definite and satisfactory. I sent notice of this annulment at once to the Senate, and in this way succeeded in having the Senate substitute a resolu- tion approving my action for the resolution which came over from the House. The House was thus induced to approve my action and the inci- dent was closed for the time." The Swiss treaty of 1850 appears to have been denounced by the President alone in 1899.^^- Willoughby approves this method of denunciation, but thinks " in important cases the President would undoubtedly seek senatorial approval before taking action." ^^^ Although the power may seem sustainable by analogy to the Presi- dent's power of removal without consent of the Senate, admitted since the first Congress, even when the appointment require'5 such consent, yet it has seldom been practised and has been often doubted.^^* It would appear that the final act of sending notice is at the President's discretion and when he gives notice the treaty is terminated under international law but he ought not to act without consent either of Congress or of the Senate, except in extraordinary circimistances. 187. Legislative Abrogation. A treaty may be abrogated as " the law of the land " by resolu- tion of Congress or by the passage of conflicting legislation. It is somewhat difficult to locate the constitutional power for such legis- lation when terminating treaties on subjects not within the legis- lative competence of Congress, but it has been sustained in many cases. ^^^ " It must be conceded," said the Supreme Court in the Chinese Ex- clusion Case, " that the act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplemental treaty of 1880, but it is not on that account invalid or to be restricted in its enforcement. The treaties were of no greater obligation than the act of Congress. By the Constitution, laws made in pursuance thereof and treaties made under the authority of ^1- Crandall, op. cit., pp. 116-117. 113 Willoughby, op. cit., p. 518. 11* See remarks of Senator Walsh, of Mont'., Cong. Rec, Nov. 8, igiQ, 58: 8608-8609. lis The Chinese Exclusion Case, 130 U. S. 581 ; The Cherokee Tobacco Case, II Wall. 616; The Head Money Cases, 112 U. S. 580; Moore, Digest, 5: 356-370. WRIGHT— POWER TO MAKE AGREEMENTS. 349 the United States are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. ... It can be deemed only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case the last expression of the sovereign will must control. . . . The question whether our government was justified in disregarding its engagements with another nation is not one for the de- termination of the courts. . . . The court is not the censor of the morals of the other departments of the Government." However, as the court noticed, such legislation does not afifect the international obligation of the treaty. President Arthur in veto- ing the Chinese exclusion bill of 1882 said: ""^ "A nation is justified in repudiating its treaty obligations only when they are in conflict with great paramount interests. Even then all possible reasonable means for modifying or changing these obligations by mutual agreement should be exhausted before resorting to the supreme right of refusal to comply with them." President Hayes's veto of a similar bill in 1879 though based partly on constitutional grounds referred to " the more general considerations of interest and duty which sacredly guard the faith of the nation, in whatever form of obligation it may have been given." ^^' To make " a scrap of paper " of a treaty by legislation will at once give basis for international demands. Thus France refused to recog- nize the legitimacy of American abrogation of her treaties in 1798 and compensation was made by sacrifice of the spoliation claims by the treaty of 1800.^^^ China has consistently protested against the disregard of her treaties by various exclusion acts.^^^ 188. Conclusion. We conclude that the power of making international agreements is largely vested in the President. The states' power in this respect is practically nil. Though the Senate has an absolute veto on treaties, and Congress may suggest the opening of negotiations, may authorize executive agreements. and may refuse to execute treaties, yet the real initiative, the negotiation and the final decision to ratify 1^" Richardson, Messages, 8: 112. ii'/fciJ., 7: 520. See also Message of Pres. Harrison, Dec, 1890, in re- ferring to violation of Hawaiian Reciprocity Treaty by the tariff act, Richard- son, 9: no; Moore, Digest, 5: 368, and supra, sec. loi. 118 Moore. Digest, 5: 357, 609-612. ii^See references to U. S. Foreign Relations, Moore, Digest, 4: 198, 202. 350 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. are all at the discretion of the President. Furthermore, many agree- ments of a temporary or purely executive or military character may be made by him without consulting the Senate at all. While executive agreements usually terminate with the passing from office of the President under whose authority they were nego- tiated, or the repeal of the statute on which they were founded, this would not be true of agreements transferring a lease or other title to territory for a term of years or perm.anently. Treaties may be terminated as municipal law by legislative abrogation or judicial recognition of their obsolescence under principles of international law, but the international obligation may be ended only by operation of international law recognized by the President, by legislative de- nunciation of a voidable treaty, or by denunciation under the terms of the treaty itself by the President acting ordinarily with consent of the Senate or Cona^ress. CHAPTER XV. The Power to Make Political Decisions in Foreign Affairs, Recognition, Annexation, Citizenship and the Determination of Policy. 189. Distinction Between Domestic and Foreign Affairs. The meeting of international responsibilities and the making of international agreements do not include all matters which have to do with the conduct of foreign relations. Many decisions which may be made by nations without the consent of other states and practically without limitation by international law and treaty, affect foreign nations very closely. The recognition of foreign states and governments, the declaration of war and the proclamation of neu- trality are examples which at once spring to the mind. This field is, however, difficult accurately to define. There is hardly a law passed by even a state legislature which may not affect a resident alien and so under conceivable circumstances become a subject of international discussion. Such matters, however, as the regulation of foreign commerce, the control of immigration, the raising of WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 351 armies, the development of a navy and the building of fortifications within its territory, are of very direct interest to foreign nations. Yet, except so far as regulated by treaties, they are considered domestic questions. Arbitration treaties have often excepted questions affecting na- tional " independence " from compulsory submission and the League of Nations Covenant (Art. XV) recognizes that disputes between nations may " arise out of a matter which by international law is solely within the domestic jurisdiction " of one party, and in such disputes the Council of the League is incompetent to make a recom- mendation. The United States Supreme Court has similarly recog- nized certain questions undoubtedly interesting to foreign nations as within the " independence " of the nation.^ " That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own terri- tory to that extent is an incident of every independent nation. It is a part of its independence." Writers on international law have usually drawn the line be- tween foreign affairs and domestic affairs according to the line of territorial jurisdiction.^ " It being a necessary result of independence that the will of the state shall be exclusive over its territory, it also asserts authority as a general rule over all persons and things, and decides what acts shall or shall' not be done within its dominion. It consequently exercises jurisdiction there, not only with respect to the members of its own community and their property, but with respect to foreign persons and property." Although in practice states are responsible for many events which occur or acts which take effect entirely within their borders,^ yet territorial autonomy is generally recognized by international law and we will confine attention to those political decisions directly affecting matters beyond national boundaries. 190. State Pozver to Make Political Decisions in Foreign Affairs. The states have been deprived of almost all power to make polit- ical decisions in foreign affairs. Their war power is confined to the 1 The Chinese Exclusion Case, 130 U. S. 581 (1889). 2 Hall, Int. Law, p. 49. ^ Supra, sec. 89. 352 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. maintenance of a militia for domestic use or to ward off an actual or imminent invasion. " No state," says the Constitution, " shall grant letters of marque and reprisal, ... or without the consent of Congress keep troops or ships of war in time of peace or engage in war unless actually invaded or in such imminent danger as will not admit of delay." * They have no powers dependent upon war and treaty-making such as that of annexing territory, nor upon diplomatic and representative powers such as those of recognizing new states and governments, though state legislatures have sometimes passed resolutions recom- mending national action in these matters.^ In political matters even indirectly affecting foreign relations the states are excluded. They cannot lay export or import duties ex- cept to enforce inspection laws ; they cannot lay tonnage duties ; regulate immigration or foreign commerce except necessary local regulations upon which Congress has not acted, nor naturalize aliens.'' The intention of the Constitution is undoubtedly to render the states incompetent to make political decisions which affect for- eign nations in more than the most remote degree, yet state laws have occasionally given rise to international controversy, especially where discrimination against resident aliens is alleged. The San Francisco ordinance of 1906 segregating Japanese school children and the California laws of 1913 and 1920 forbidding landholding to certain classes of aliens are in point. '^ "Even a state of the Union," said a Senate report of 1897, "although having admittedly no power whatever in foreign relations, may take action uncontrollable by the Federal Government, and which, if not properly a casus belli, might nevertheless as a practical matter afford to some foreign nation the excuse of a declaration of war. We may instance the action which might have been taken by the State of Wyoming in relation to the Chinese massacres, or by the State of Louisiana in relation to the Italian lynchings, *U. S. Const., Art. I, sec. 10, cl. 3. , s In 1897 Nebraska adopted a resolution extending to Cuba their sym- pathy. Sen. Doc. 82, 54th Cong., 2d sess. For state resolutions favoring recognition of Ireland, Armenia, Jewish State, the League of Nations, etc., see Cong. Rec, 57: 3866; 58: 43, 48-51, 54, 6859; 59: 7510. '^ Ibid.; The Passenger Cases, 7 How. 283; Cooley v. Port Wardens, 12 How. 299; Chirac v. Chirac, 2 Wheat. 259. '^ Supra, sec. 15, note 10; sec. 50, note 83. WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 353 or by the State of New York in its recent controversy with German insurance companies with relation to the treatment of its own insurance companies by Germany." * 191. National Power to Make Political Decisions in Foreign Affairs. The national government is given by the Constitution political powers, not only directly affecting foreign relations, such as the war power, the treaty-making power, and the power to send and receive diplomatic officers ; but also most powers which might indirectly affect them, such as the powers to regulate foreign commerce, to levy customs duties, and to naturalize aliens. So extensive are these powers that the court has construed them as together con- ferring upon the national government all the powers in foreign rela- tions enjoyed by other sovereign nations.^ " The United States are a sovereign and independent nation, and are vested b^ the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and make it effective." How are these powers distributed among the departments of government ? " It is clear all through the Constitution, and has never been disputed, that the intention was to distribute the powers of the Government between its three branches, subject to such checks as the veto of the President or advice and consent of the Senate ; and not to place any given power in two or all three branches of the Government concurrently. " The existence of the same power for the same purposes in both the legislative and executive branches of the Government might lead to most un- fortunate results. For instance, if the legislative and executive branches both possessed the power of recognizing the independence of a foreign nation, and one branch should declare it independent while the other denied its inde- pendence, then, since they are coordinate, how could the problem be solved by the judicial branch? " The distinction must be borne in mind between the existence of a con- stitutional' power and the existence of an ability to effect certain results. For instance, Congress alone has the power to declare war. The Executive, how- ever, can do many acts which would constitute a casus belli, and thus indi- rectly result in war ; but this does not imply in the Executive a concurrent power to declare war, and the war which would result would be one declared by a foreign power. It is possible even that the judiciary, by declaring some act of Congress at an inopportune moment to be unconstitutional or otherwise ^ Sen. Doc. No. 56, 54th Cong., 2d sess., p. 5. »Fong Yue Ting v. U. S., 149 U. S. 698 (1893). 354 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. incapable of execution according to its intent, or by some decision in a prize cause or otherwise, could give rise to a war with a foreign power, yet no one would claim that the judiciary had the power to declare war." lo Though the constitutional fathers doubtless had the purpose as- cribed to them in this Senate report, yet it is by no means true that they succeeded in keeping the powers of the various departments from overlapping in the field of foreign affairs. An illustration is furnished by the power to regulate the landing of submarine cables. ^^ "I am of the opinion," wrote the Acting Attorney General in 1898, "that the President has the power, in the absence of legislative enactment, to con- trol the landing of foreign submarine cables." But "the Executive permis- sion to land a cable is, of course, subject to subsequent congressional action." The President as Chief Executive, Commander-in-Chief and the representative organ, seems to have sufficient power to make all political decisions in foreign affairs not exclusively vested in Congress or the treaty-making power and not conflicting with in- ternational law, treaty or existing act of Congress. Congress, on the other hand, can make political decisions in for- eign affairs so far as it can bring them under its express, implied or resultant powers, the most important of which in this connection are the powers to declare war, to annex territory, to naturalize aliens, to regulate commerce and means of conveyance and com- munication with foreign nations, and to regulate immigration and exclude or expel aliens. When Congress has validly acted, its act binds the President except in so far as it encroaches upon his con- stitutional discretion to receive and commission diplomatic officers and to act as Commander-in-Chief. The courts have no power to make political decisions whatever. Their functions are purely judicial and when confronted with a political question they accept the decision of the political depart- ments of the government. ^^ It results that judicial precedents are not of great assistance in determining the constitutional line separat- ing the powers of the President from those of Congress in this field. 10 Sen. Doc. No. 56 (cited supra, note 7), p. 4. 11 Moore, Digest, 2: 463. See also infra, sees. 245-248. 12 Supra, sec. 107. WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 355 It must be added that the distinction between " constitutional power " and " ability to effect certain results " is one often dif- ficult to draw in practice, though doubtless valid in theory. If, for instance, the President has the " ability to effect certain results " for which Congress is given express power, through the exercise of his own undoubted constitutional powers, it would not seem far from the truth to state that the constitutional powers of Congress and the President overlap. The same end may often be attained by different means. A. The Pozvcr to Recognise Foreign States, Governments, and Belligerency. ig2. The Power of Recognition. The President as the representative organ has the power to rec- ognize facts in international relations. He has recognized foreign states by receiving diplomatic officers or granting exequators to consuls from them, and by sending diplomatic officers or commis- sioners to them.^^ He has, by diplomatic correspondence through the Department of State, recognized acquisitions of territory and the establishment of protectorates by existing states.^* Likewise, beginning with the recognition of the French revolutionary gov- ernment through reception of Citizen Genet in 1793, the President has recognized new governments and he has refused to recognize de facto governments, thereby contributing to their ultimate down- fall, as was the case with the Huerta government in Mexico and the Tinoco government in Costa Rica.^^ The President has recognized the existence of foreign war through proclamation of neutrality. Though the first such proclamation, issued in 1793 by Washington, was vigorously attacked by Jefferson and Madison, who considered it beyond his powers and contrary to the French alliance treaty of 1778, the precedent has been followed in all subsequent foreign wars, both international and civil. ^'^ The President has also held ^3 Moore, Digest, i: 74-119. "Williams v. Suffolk Ins. Co., 13 Pet. 415. ^5 Moore, Digest, i: 164; Moore, Principles of Am. Diplomacy, 213-225. 16 Moore, Digest, i: 164; Corwin, op. cit., pp. 7-28. PROC. AMER. PHIL. SOC, VOL. LX., .X, MARCH I3, I922, 356 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. himself competent to recognize the termination of foreign wars and the consequent termination of American neutrahty." He has rec- ognized the existence of insurgency and domestic violence in foreign countries by proclamation and by diplomatic correspondence through the Department of State, and the courts have held that such action creates a status covered by special principles of international law. Thus in the case of the Three Friends the court distinguished be- tween " war in the material sense " and " war in the legal sense."^^ " Here," it said, " the political department has not recognized the existence of a de facto belligerent power engaged in hostility with Spain, but has recog- nized the existence of insurrectionary warfare prevailing before, at the time and since this forfeiture is alleged to have been incurred." After describing two presidential proclamations calling attention to " serious civil disturbances " and " insurrection " in Cuba, the court continues : " We are thus judicially informed of the existence of an actual conflict of arms in resistance of the authority of a government with which the United States are on terms of peace and amity, although acknowledgment of the insurgents as belligerents by the political department has not taken place." With respect to the President's power of recognition, two ques- tions have been raised : What are its limits ? and. Is it exclusive ? 193. Limits of Recognition Power. The courts have taken cognizance of the President's recognition of states, governments, belligerency, insurgency and foreign ac- quisitions of territory on numerous occasions and they have never held that the President exceeded his powers.^^ It is clear, how- ever, that if unlimited, the power of recognition could be used to usurp the power to declare war. Thus recognition of a foreign revolting state, if premature, would furnish a casus belli. This possibility was envisaged by Secretary of State Adams when occasion arose for recognizing the revolting South American Republics and he stated: 2" " Mr. Seward, Sec. of State, to Mr. Goni, Spanish Minister, July 22, 1868, Moore, Digest, 7: 337, supra, sec. 213. ^^Ibid., i: 242; The Three Friends, 166 U. S. 63-66 (1897). 10 Ibid., 1 : 247. 20 Mr. Adams, Sec. of State, to the President, Aug. 24, 1818, ibid., i : 78. For discussion of circumstances justifying recognition, see Dana, Notes to Wheaton, Elements of International Law, pp. 35, 41- WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 357 " There is a stage in such contests when the parties struggling for inde- pendence have, as I conceive, a right to demand its acknowledgment by neu- tral parties, and when the acknowledgment may be granted without departure from the obligations of neutrality. It is the stage when independence is established as a matter of fact so as to leave the chances of the opposite party to recover their dominion utterly desperate. The neutral nation must, of course, judge for itself when this period has arrived; and as the belligerent nation has the same right to judge for itself, it is very likely to judge differ- ently from the neutral and to make it a cause or pretext for war, as Great Britain did expressly against France in our Revolution, and substantially against Holland." Secretary Adams' distinction seenis to indicate the limits of the President's power. He may recognize a fact. To do so is not a just cause of war. A recognition before the fact is, however, inter- vention and practically war, the declaration of which belongs to Congress. Thus when the line has been close, as in the recognitions, of the South American Republics and Texas, the President has " in- voked the judgment and cooperation of Congress " before recog- nition-^ and where " recognition " would clearly be premature, the President has not acted at all but has turned the question over to Congress. Thus President McKinley, in his message of April II, 1898, turned over the "solemn responsibilty " of the Cuban question to Congress with a recommendation for intervention,^^ 194. Exclusiveness of President's Recognition Power. In practice, recognition has always been by authority of the President, though in a few cases the President has gained the ap- proval of Congress or the Senate before acting.^* " In the preceding review," writes Moore, " of the recognition, respec- tively, of new states, new governments and belligerency, there has been made in each case a precise statement of facts, showing how and by whom the recognition was accorded. In every case, as it appears, of a new government and of belligerency the question of recognition was determined solely by the Executive. In the case of the Spanish-American republics, of Texas, of Hayti, and of Liberia, the President, before recognizing the new state, in- voked the judgment and cooperation of Congress; and in each of these cases provision was made for the appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international law, a formal recognition. In numerous other cases the recognition was given by the Executive solely on his own responsibility." 21 Infra, sec. 194. 22 Richardson, Messages, 10 : 67. 23 Moore, Digest, i : 244. 358 WRIGHT-POWER TO MAKE POLITICAL DECISIONS. The Congressional Resolution of April 20, 1898, which asserted that "the people of the Island of Cuba are and of right ought to be free and independent" has been cited as an exception but the resolution went on to " direct and empower " the President to use the army, navy and militia to " carry these resolutions into effect." It was in fact and was understood at the time to be a declaration of intervention and not a recognition.-* As Senator Morgan of Alabama said, it was "not a historical declaration of the existing facts or situation, but it is a high political decree, ... a basis of political action." ^s 195. Claim of Congress to Recognition Power. On several occasions, the power of recognition has been claimed for Congress. Thus said Henry Clay in the House of Represen- tatives : ^® *' There are three modes under our Constitution in which a nation may "be recognized : By the Executive receiving a minister ; secondly, by its send- ing one thither ; and, thirdly, this House unquestionably has the right to recognize in the exercise of the constitutional power of Congress to regulate foreign commerce. . . . Suppose, for example, we passed an act to regulate trade between the United States and Buenos Ayres; the existence of the nation would be thereby recognized, as we could not regulate trade with a nation which does not exist." However, Clay's original motion which provided salary for a minister to the " independent provinces of the River Plata in South America " was withdrawn and his substitute omitting the term " independent " and adding that the salary was to commence " when- ever the President shall deem it expedient to send a minister to the said United Provinces " failed to pass.-' On this occasion, as later, the better opinion held that the power to recognize was vested exclusively in the Executive. Thus John 2* Richardson, Messages, 10: 72. See also Latane, Am. Jl. Int. Law, 12: 899 (Oct., 1918), criticizing statement in Corwin, op. cit., p. 80. ^^ Cong. Rec, 55th Cong., 2d sess., Appdx., p. 290; Corwin, op. cit., p. 81. 26 Sen. Doc. 56 (cited supra, note 8) , p. 32 ; Corwin, p. 76. See also notes of Secretaries of State Buchanan and Clay, Moore, Digest, i : 245-246. ^"^ Moore. Digest, i : 82. A later resolution passed the House of Repre- sentatives, ibid., 1 : 84. WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 359 Quincy Adams, then Secretary of State, writes of a meeting of President ^lonroe's cabinet, on January i, 1819.^® "As to impeachment, I was willing to take my share of risk of it for this measure whenever the Executive should deem it proper. And, instead of admitting the Senate or House of Representatives to any share in the act of recognition, I would expressly avoid that form of doing it which would require the concurrence of those bodies. It was, I had no doubt, by our Constitution an act of the Executive authority. General Washington had exercised it in recognizing the French Republic by the reception of Genet. Mr. Madison had exercised it by declining several years to receive, and by finally receiving Mr. Onis ; and in this instance I thought the Executive ought carefully to preserve entire the authority given him by the Constitution, and not weaken it by setting the precedent of making either House or Congress a party to an act which it was his exclusive right and duty to perform. Mr. Crawford said . . . that there was a difference between the recognition of a change of government in a nation already acknowledged as sovereign, and the recognition of a new nation itself. He did not, however, deny, but ad- mitted, that the recognition was strictly within the powers of the Executive alone, and I did not press the discussion further." The same position has been taken by j\Ir. Seward and other Secretaries of State,-** by the Senate on several occasions^" and by the Supreme Court.^^ " The Executive," said the latter. " having recognized the existence of a state of war between Spain and her South American colonies, the courts of the union are bound to consider as lawful those acts which war authorized and which the new Governments in South America may direct against their enemy." Although the President may seek the opinion of Congress before recognition ; and doubtless should do so if the state or government or war in question does not have a clear dc facto existence, yet the law is that stated by the Senate Foreign Relations Committee in 1897:^- 28 Memoirs of J. Q. Adams, 4: 205-206; Moore, Digest, i: 244. 20 Mr. Seward, Sec. of State, to Mr. Dayton, Minister to France, Apr. 7, 1864, Moore, Digest, i : 246. 30 Memorandum on the method of " Recognition " of foreign govern- ments and foreign states by the Government of the United States, 1789-1897, Sen. Doc. No. 40, 54th Cong., 2d sess. ; memorandum upon the power to recognize the independence of a new foreign state, Sen. Doc. No. 56, S4th Cong., 2d sess. 31 The Divina Pastora, 4 Wheat. 2>2; Moore, Digest, i: 247. 22 Sen. Doc. 56, 54th Cong., 2d Sess., p. 22. 360 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. " The executive branch is the sole mouthpiece of the nation in communi- cation with foreign sovereignties. Foreign nations communicate only through their respective executive departments. Resolutions of their legislative de- partments upon diplomatic matters have no status in international law. In the department of international law, therefore, properly speaking, a congres- sional recognition of belligerency or independence would be a nullity." Finally we may notice a practical consideration adverted to by Professor Corwin after a comprehensive survey of the subject. Concluding that " recognition, as it is known to international law, belongs to the President alone, or to the President in conjunction with the Senate " he adds : ^^ " Even if we should admit that Congress, incidentally to discharging some legislative function like that of regulating commerce, might in some sense ' recognize ' a new state or government, the question still remains how it would communicate its recognition, having the power neither to dispatch nor to receive diplomatic agents. As was said of the States of the Confed- eration, Congress is as to other governments ' both deaf and dumb.' Why, then, claim for it a power which it could not possibly use save in some roundabout and inconclusive fashion?" B. The Power to Determine National Territory and Citizenship. 196. Judicial Recognition of Territorial Limits. International law recognizes that territory may be acquired by accretion and prescription; discovery and occupation; cession and conquest.^* The courts in applying international law recognize small acquisitions by accretion and prescription. Thus mud islands formed at the mouths of rivers and gradual changes in boundary river courses have been recognized as extending the jurisdiction.^^ The courts have held general acceptance of certain marks as the boundary for a long space of time will establish it, even though such marks are ascertained to be incorrect by later surveys,^^ and they have also recognized bays with headlands more than six miles apart, such 33 Corwin, op. cit., p. 82. 34 Wilson and Tucker, International Law, 7th ed., p. 108. 35Cushing. Att. Gen., 8 Op. I75 (1856) ; Ocean City Assoc, v. Shriver. 46 Atl. 690 (N. J., 1900), and English case. The Anna, 5 Rob. 373 (1805) ; Moore, Digest, i : 269-273, 747. 36 As to interstate boundaries, R. I. v. Mass., 4 How. 591, 639 (i»4o) ; Ind. V. Ky., 136 U. S. 479 (1890) ; Va. v. Tenn., 148 U. S. 503 (1893) ; Moore, Dgest, I : 295, 747. WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 361 as Chesapeake and Delaware bays, as territorial waters from long assertion by the United States and tacit acceptance by other powers of that status.^' In general, however, the courts regard the deter- mination of boundaries as a political question.^^ 197. Recognition of Territorial Limits by the President. The President is competent to recognize the acquisition of ter- ritory by discovery and occupation. Thus shall uninhabited islands in the Pacific have been taken possession of by naval commanders.** The President has also applied the Guano Island act passed by Congress in 1856 and as therein provided has registered islands, discovered and worked by American citizens, as within American jurisdiction and protection. In Jones v. United States the Su- preme Court held that the jurisdiction of the United States was thus legally extended.*" 198. Power to Annex Territory by Treaty and Executive Agree- ment. Most of the acquisitions of territory have been by cession, though the competence of the treaty-making power was at first ques- tioned.*^ Louisiana, Florida, Oregon, California and New Mexico, the Messila Valley, Tutuila in the Samoan group, Porto Rico, the Philippines, Guam, and the Virgin Islands have been thus acquired, as has the permanent lease of the Panama Canal Zone, and of a naval base on the Gulf of Fonseca. Reef Island near the outlet of Lake Erie and a lease of a naval base at Guantanamo, Cuba, were acquired by executive agreement. ■*- 3^ The Grange, Randolph, Att. Gen., i Op. 32; Manchester v. Mass., I39 U. S. 240; Moore, Digest, i : 735-743; The Alleganean, Alabama Claims Com- mission, 1885, 32 Albany L. J. 484; Moore, Int. Arb. 4333- 4675; Scott, Cases T)n Int. Law, p. 143. 38 Foster v. Neilson, 2 Pet. 253; Moore, Digest, i : 743-745, supra, sec. 107. 3»For acquisition of Midway and Wake Islands, see Moore, Digest, i: 555. "Jones V. U. S., 137 U. S. 202 (1890) ; Moore, Digest, i: 556-5?o. 41 Willoughby, op. cit., pp. 328 ct seq. See also Wright, Columbia Law Rev., 20: 141, note 100. 42 Moore, Digest, i : 433-554- 362 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 199. Power of Congress to Annex Territory. Texas and Hawaii were acquired by joint resolution of Congress. Commentators have had difficuUy in locating the clause on which the power of Congress to annex territory is founded. Chief Justice Marshall implied the power to annex territory from the powers to make treaties and to declare war,^^ but the former does not apply to Congress nor the latter to these cases, and as Willoughby com- ments after citing the cases : ^'^ " It is to be observed that in none of these cases is there any argument to show just why, and in what manner, the acquiring of the foreign territory is a necessary or proper means by which war may be carried on, or treaties entered into. In fact, it will be seen that the acquiring of foreign territory has been treated as a result incidental to, rather than as a means for, the carrying on of war and the conducting of foreign relations." It has been argued that the power to annex territory is implied in the powers to admit new states to the Union.*^ That clause might apply to Texas which was immediately admitted as a state but hardly to Hawaii ; and Gouverneur Morris who drafted the Constitution, replied to Livingston's query, " whether Congress can admit as a new state territory which did not belong to the United States when the Constitution was made " : ^^ " In my opinion they cannot. I always thought, v/hen we should acquire Canada and Louisiana, it would be proper to govern them as provinces and allow them no voice in our councils. In wording the third section of the fourth article, I went as far as circumstances would permit to establish the exclusion. Candor obliges me to add my belief that had it been more point- edly expressed, a strong opposition would have been made." If Congress has the power at all, as it doubtless has, it has it as a resultant of the various powers connected with foreign relations which together confer all sovereign powers necessary for national defense.*'' 43 Am. Ins. Co. v. Canter, i Pet. 51 1- ** Willoughby, op. cit., p. 340. 45 55th Cong., 2d sess., Sen. Report, No. 681 ; Willoughby, op. cit., p. 346. 46 Morris, Life and Writings (Sparks), 3: 185, 192; Willoughby, op. cit., p. 328. 4T Willoughby, op. cit., p. 340. WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 363 The SuY»reme Court has admitted the power of Congress to acquire territory by conquest but has denied such power to the President : *« "The genius and character of our institutions are peaceful, and the power to declare war was not conferred upon Congress for the purposes of aggression or aggrandizement, but to enable the general government to vindi- cate by arms, if it should become necessary, its own lights and the rights of its citizens. A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's country. The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government for the expenses of the war. But this can only be done by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war." We conclude that the courts in applying international law and the President in the exercise of his diplomatic powers may recognize minor acquisitions of territory by operation of international law, and that more considerable bodies of territory may be acquired by treaty or by joint resolution of Congress. 200. Pozvcr of Congress to Naturalise Aliens and Establish Criteria of Citizenship. The Constitution provides that " all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." ** Congress has exclusive power "to establish an uniform rule of naturalization," ^° and it has by implication the power to determine, within the constitutional pro- vision, who are natural born citizens. Thus it has provided that:"^ "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States." *8 Fleming v. Page, 9 How. 603. 49 U. S. Constitution, Amendment XIV; U. S. v. Wong Kim Ark, 169 U. S. 649. ^^ Ibid, Art. I, sec. 8, cl. 4; Chirac v. Chirac, 2 Wheat. 259. ^1 Rev. Stat., sec. 1993; Comp. Stat., 3947- 364 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. Congress may also naturalize persons by special act, as it has many Indian tribes^^ and the Porto Ricans.^'"* From its power to naturalize is deduced the power to determine criteria of expatriation. An act of 1868 " recognizes the natural and inherent right of expatriation " and enacts that : ^* " Any declaration, instruction, opinion, order, or decision of any officers of this Government which denies, restricts, impairs, or questions their right of expatriation is hereby declared inconsistent with the fundamental prin- ciples of this Government." Laws have also stated presumptions of expatriation of naturalized citizens, such as two years residence in the country of origin or five years residence in other foreign country. ^^ 201. Power of Executive to Recognize Citizenship. Within the limits of these laws, the Executive, actually the De- partment of State, must recognize the citizenship or alienage of per- sons, in offering protection or responding to claims of foreign gov- ernments in behalf of their citizens. The Executive may make requirements with reference to passports and registration at con- sulates in the place of residence and the evidence necessary to prove citizenship.^*' Within the United States the question of citizenship is ordinarily one for judicial determination, but immigrants claim- ing citizenship may, under present laws, have the fact of citizenship decided adversely and finally by administrative officials without appeal to the courts. According to the Ju Toy case these laws do not violate constitutional guarantees. ^^ C. Power to Determine Foreign Policy. 202. Congressional Resolutions on Incidents in Foreign Affairs. Declarations of foreign policy may be made by Congress in the form of joint resolutions, but such resolutions are not binding on 52 Rev. Stat., sec. 2312, Act Feb. 8, 1887, sec. 6, 24 Stat. 390, as amended in 1901 and 1906; Comp. Stat, sec. 3951. 53 Act March 2, 1917, sec. 5, 39 Stat. 953 ; Comp. Stat., sec. 38o3bb. ''^ Rev. Stat., sec. 1999; Comp. Stat, sec. 3955- 55 Act March 2, 1907, sec. 2, 34 Stat. 1228. 56 Borchard, op. cit., p. 488. 5T U. S. V. Ju Toy, 198 U. S. 253 ; Willoughby, op. cit., p. 1290. WRIGHT— POWER TO AIAKE POLITICAL DECISIONS. 365 the President. They merely indicate a sentiment which he is free to follow or ignore. Yet they are often couched in mandatory terms and in defense of his independence the President has fre- quently vetoed them. Thus in 1877, President Grant vetoed two resolutions extending appreciation to Pretoria and Argentine Re- public for the " complimentary terms in which they had referred to the first centennial " : ^^ " Sympathizing as I do in the spirit of courtesy and friendly recognition which has prompted the passage of these resolutions, I cannot escape the conviction that their adoption has inadvertently involved the exercise of a power which infringes upon the constitutional rights of the Executive. . . . The Constitution of the United States, following the established usage of nations, has indicated the President as the agent to represent the national sovereignty in its intercourse with foreign powers, And to receive all official communications from them, . . . making him, in the language of one of the most eminent writers on constitutional law, ' the constitutional organ of com- munication with foreign states.' If Congress can direct the correspondence of the Secretary of State with foreign governments, a case very different from that now under consideration might arise, when that officer might be directed to present to the same foreign government entirely different and antagonistic views or statements." Similar objection has sometimes been raised in Congress itself. Thus Webster said of an item in the appropriation bill for the Panama mission of 1826, which attempted to attach conditions:^® 58 Richardson, Messages, 7: 431. See also Sen. Rep., quoted supra, sec. 191. President Harding is reported to have opposed Senator Borah's amend- ment to the naval appropriation bill of 1921, authorizing a conference on dis- armament with Great Britain and Japan, on the ground that it "might embar- rass executive action, or appear to carry a congressional recommendation on international policies within the jurisdiction of the executive." (Press Re- port, May 3, 1921, Cong. Rec, May 17, 27, 1921, 61 : 1508, 1857.) These ob- jections were, however, later withdrawn (Letter to Representative Mondell, June 25, 1921), and the bill with the amendment was approved July 12, 1921, two days after Presidenit Harding had announced his intention to call a conference on limitation of armament. 59 Benton, Abridgment of Debates in Congress, 9: 91. Congressional resolutions on incidents in the control of foreign affairs have sometimes been defeated in Congress from an apprehension that they might be unconstitu- tional encroachments upon the President's powers. See Clay's resolution of 1818 for recognition of United Province of Rio de la Plata (Moore, Digest, I : 182) ; Benton's resolution of 1844 criticizing President Tyler's treaty for annexation of Texas {Cong. Globe, 13, Appdx., 474) ; Sumner's resolution of 366 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. "He would recapitulate only his objections to this amendment. It was unprecedented, nothing of the kind having been attempted before. It was, in his opinion, unconstitutional, as it was taking the proper responsibility from the Executive and exercising, ourselves, a power which, from its nature, belongs to the Executive, and not to us. It was prescribing, by the House, the instructions for a Minister abroad. It was nugatory, as it attached con- ditions which might be complied with, or might not. And lastly, if gentlemen thought it important to express the sense of the House on these subjects, or any of them, the regular and customary way was by resolution. At present it seemed to him that we must make the appropriation without conditions, or refuse it. The President had laid the case before us. If our opinion of the character of the meeting, or its objects, led us to withhold the appropriation, we had the power to do so. If we had not so much confidence in the Execu- tive as to render us willing to trust to the constitutional exercise of the Executive power, we have power to refuse the money. It is a direct question of aye or no. If the Ministers to be sent to Panama may not be trusted to act, like other Ministers, under the instructions of the Executive, they ought not to go at all." 203. President Not Bound by Congressional Resolutions on Foreign Affairs. The Executive has never hesitated to ignore resolutions or acts of this kind, even when passed. Thus a resohition of 1864 declared, with reference to the Maximillian Government of Mexico, that : " It does not accord with the policy of the United States to acknowledge a monarchical government, erected on the ruins of any republican government in America, under the auspices of any European power." Secretary of State Seward explained to the minister in France : "This is a practical and purely Executive question, and the decision of its constitutionality belongs not to the House of Representatives nor even to Congress, but to the President of the United States. . . . While the President receives the declaration of the House of Representatives with the profound respect to which it is entitled, as an exposition of its sentiments upon a grave and important subject, he directs that you inform the Government of France that he does not at the present contemplate any departure from the policy which this Government has hitherto pursued in regard to the war which exists between France and Mexico. It is hardly necessary to say that the proceed- ing of the House of Representatives was adopted upon suggestions arising within itself, and that the French Government would be seasonably apprised of any change of policy upon this subject which the President might at any future time think it proper to adopt." 1871 criticizing President Grant's eflfort to annex Santo Domingo (Cong. Globe, 426. Cong., ist sess., pt. i, p. 294) ; McLemore's resolution of March, 1916, " to warn all citizens of the United States to refrain from traveling on armed vessels" {Cong. Rcc, 1916, pp. 3700-4). I WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 367 Congress promptly resolved upon receipt of this communication that: " Congress has a constitutional right to an authoritative voice in declaring and prescribing the foreign policy of the United States, as well in the recog- nition of new powers as in other matters, and it is the constitutional duty of the President to respect that policy, not less in diplomatic negotiations than in the use of the national forces when authorized by law ; and the propriety of any declaration of foreign policy by Congress is sufficiently proved by the vote which pronounces it ; and such proposition, while pending and undeter- mined, is not a fit topic of diplomatic explanation with any foreign power." Mr. Blaine criticized this resolution in the House: " To adopt this principle is to start out with a new theory in the adminis- tration of our foreign affairs, and I think the House has justified its sense of self-respect and its just appreciation of the spheres of the coordinate departments of government by promptly laying the resolution on the table." But after changing the term " President " to " Executive Depart- ment " the House passed the resolution, which, however, failed to come to a vote in the Senate.'''' Though congressional resolutions on concrete incidents are en- croachments upon the power of the Executive Department and are of no legal effect, yet they may be of value as an index of national sentiment. "They have," says Professor Corwin, "often furnished the President valuable guidance in the shaping of his foreign policy in conformity with public opinion. Thus the resolutions which were passed by the Senate and House separately in the second session of the Fifty-third Congress, warning the President against the employment of forces to restore the monarchy of Hawaii, probably saved the administration from a fatal error. Again, the notorious McLemore resolution, requesting the President ' to warn all citi- zens of the United States to refrain from traveling on armed merchant vessels,' though ill-judged enough as to content, did nevertheless furnish the administration a valuable hint as to the state of the public mind, and one which it was quick to take. For the President, even in the exercise of his most unquestioned powers, cannot act in a vacuum. He must ultimately have the support of public sentiment." •'i eoMcPherson, History of the Rebellion, pp. 349-354! Sen. Doc. No. 56 (cited supra, note 30), p. 47. See also President Wilson's refusal to carry out provisions of the Jones Merchant Marine Act of June 5, 1920, directing the termination of certain treaty provisions, and President Lincoln's failure to terminate the Great Lakes disarmament agreement of 1817 in accord with a resolution of 1865, supra, sees. 174. 184. 61 Corwin, op. cit., p. 45. 368 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 204. Congressional Declarations of General Policy. Congressional resolutions on foreign relations have often been of a more general character, avoiding reference to specific incidents, though doubtless suggested by such incidents. Thus a Senate reso- lution of 1858 asserted that American vessels on the high seas are not subject to visit and search in time of peace,^^ a law of 1868 asserted the right of expatriation to be " a natural and inherent right of all people " ^^ and resolutions at various times have sug- gested the negotiation of arbitration treaties.^* A section of the naval appropriation act of 1916 declared it to be:^^ "The policy of the United States to adjust and settle its international disputes through mediation or arbitration, to the end that war may be hon- orably avoided. It looks with apprehension and disfavor upon a general increase of armament throughout the world, but it realizes that no single nation can disarm, and that without common agreement upon the subject every considerable power must maintain a relative standing in military strength." Negotiation of reciprocal agreements with Canada on the use of boundary waters has also been suggested.^® A Senate resolution of 1912, though suggested by the Magdalena Bay incident, was ex- pressed as a general policy related to the Monroe Doctrine.®^ Treaty reservations have sometimes offered the Senate an opportunity 62 Moore, Digest, 2: 946. 63 Rev. Stat., sec. 1999; Comp. Stat., sec. 3955. 6* See A League of Nations (World Peace Foundation), I, No. i (Oct., 1917). 65 Act Aug. 29, 1916, 39 Stat. 618; Comp. Stat. 7686b. In the Spring of 1921 President Harding is reported to have opposed the Borah amendment on disarmament (supra, sec. 56). In his message to Congress of April 12, 1921, he said with reference to the proposed peace resolution : " It would be unwise to undertake to make a statement of future policy with respect to European affairs in such a declaration of a state of peace (with Germany). In correct- ing the failure of the Executive, in negotiating the most important treaty in the history of the nation, to recognize the constitutional powers of the Senate, we would go to the other extreme, equally objectionable, if Congress should assume the functions of the Executive. (Cong. Rec, 61 : 95. See also re- marks of Senator Hitchcock, April 29, 1921, ibid., 61 : 745.) 66 Act June 13, 1902, 32 Stat. 373, Comp. Stat. 9984; Act June 29, 1906. 34 Stat. 628, Comp. Stat. 9989d. 67 Com (7. Rec, Aug. 2, 1912, 48: 10046, A League of Nations, I, No. 5, p. 298 (June, 1918) ; Hart, The Monroe Doctrine, p. 235. WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 369 for the expression of general policies. The Hague Conventions on the Pacific settlement of international disputes were signed with a reservation : '^^ " Nothing contained in this convention shall be so construed as to require the United States of America to depart from its traditional policy of not intruding upon, interfering with, or entangling itself in the political questions of policy or internal administration of any foreign state; nor shall anything contained in the said convention be construed to imply a relinquishment of the United States of America of its traditional attitude toward purely American questions." The Senate appended a similar reservation to the Algeciras Conven- tion of 1906.^® 205. Power of President to Determine Foreign Policy. It is believed that resolutions expressing general policies or principles on most subjects connected with foreign relations may be constitutionally passed by Congress, and may furnish useful guides to the President. Congressional expressions of opinion on partic- ular issues, however, and attempts to direct the President thereon encroach upon the executive field and may embarrass the President's action. In practice foreign policy has developed by executive prec- edent, practice and declaration. The farewell address of Wash- ington and the Monroe Doctrine, both purely executive in origin and future interpretation, have been the most important expressions of foreign policy.'^" In recent years, however. Congress and es- pecially the Senate have tended to express permanent policies more freely, by resolution. Though the Monroe Doctrine was stated in 1823 and on several occasions efforts were made to gain for it legis- lative endorsement, the first statement referring to it, accepted by either House of Congress, appears to be the reservation to the Hague Convention of 1899 accepted by the Senate, and on this occasion the doctrine was not referred to by name. 68 Malloy, Treaties, etc., pp. 2032, 2047. 6» Ibid., p. 2183. ■''•Richardson, Messages, i: 221-224; 2: 209, 218-219; Moore, Digest, 6: 370, 401 ; see also Taft, op. cit., p. 113. CHAPTER XVI. The Power to Make Political Decisions in Foreign Affairs: War and the Use of Force. A. The Power to Make War. 206. The Power to Make War. Congress is given power " to declare war, grant letters of marque and reprisal and make rules concerning captures on land and water," and " to provide for calling forth the militia to execute the laws of the union, suppress insurrection and repel invasions." " The Pres- ident shall be commander-in-chief of the army and navy of the United States and of the militia of the several states, when called into the actual service of the United States " and " he shall take care that the laws be faithfully executed." ^ War has been defined as " the relation which exists between states when there may lawfully be a properly conducted contest of armed public forces." ^ It is thus to be distinguished from the use of military force. Battles may be fought, vessels captured and commerce embargoed without war, and on the other hand war may exist without a gun fired or a vessel captured or a trade route disturbed. The Supreme Court has distinguished the recog- nition of " war in the material sense " from " war in the legal sense." ^ We may thus regard war as a definite period of time within which the abnormal international law of war and neutrality has superseded normal international law. What authority in the United States has power to begin and end this period of time? 207. The Causation of War. We have noticed the distinction between " the existence of a con- stitutional power and the existence of an ability to effect certain lU. S. Const., I, sec. 8, cl. 11, 15; H, sec. 2, cl. i, sec. 3. 2 Wilson and Tucker, op. cit., p. 233. See also Grotins, De Jure Belli ac Pacis, liv. I, c. i, par. 2; Vattel, Droit' des gens, liv. Ill, c. i, sec. i. 3 The Three Friends, 166 U. S. i, supra, sec. 192, and Nelson, J., dissent in the Prize Cases, 2 Black 635, 690. 370 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 371 results."* Now the ultimate causation of war may have nothing to do with the war powers of organs of the government. An act of a state legislature discriminating against aliens or a judicial decision depriving foreign nations of rights under international law may be a casus belli. Yet neither states nor courts have any war powers at all. The President especially is endowed with powers which in their exercise may lead to war. " The President," says Pomeroy, " cannot declare war ; Congress alone possesses this attribute. But the President may, without any possibility of hindrance from the legislature, so conduct the foreign intercourse, the diplo- matic negotiations with other governments, as to force a war, as to compel another nation to take the initiative; and that step once taken, the challenge cannot be refused. How easily might the Executive have plunged us into a war with Great Britain by a single dispatch in answer to the affair of the Trent. How easily might he have provoked a condition of active hostilities with France by the form and character of the reclamations made in regard to the occupation of Mexico." ^ But the President's powers go even beyond this. As Commander- in-Chief, he may employ the armed forces in defense of American citizens abroad, as he did in the bombardment of Greytown, the Koszta case and the Boxer rebellion, and thereby commit acts of war, which the government they offend may consider the initiation of war. Thus on April 23, 1914, after the occupation of Vera Cruz by American marines, the Huerta government handed Charge d'affaires O'Shaughnessy his passports with the comment : ^ " According to international law, the acts of the armed forces of the L^nited States, which I do not care to qualify in this note out of deference to the fact that your honor personally has observed toward the Mexican people and Government a most strictly correct conduct, so far as has been possible to you in your character as the representative of a government with which such serious difficulties as those existing have arisen, must be considered as an initiation of war against Mexico." Such presidential acts, though perhaps a casus belli, are not making war in the strict sense, as the intention to initiate that condition does not exist. '^ If war results it is one recognized or declared by the foreign power. * Supra, sec. 191. 5 Pomeroy, Constitutional Law, p. 65. 6 Ant. Year Book, 1914, p. 235. ''Supra, sec. 210, note 20. PROC. AMER. PHIL. SOC, VOL. LX., Y, MARCH I3, I922. 372 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 208. The Recognition of War by Congress. Suppose a foreign government commits such acts against the United States. What authority can recognize them as in fact the initiation of war? The power of Congress to declare war unques- tionably embraces the power to recognize war. In fact all of the foreign wars to which the United States has been a party have been not declarations of war, but recognitions of war, if we are to judge by the terms of the initiating act of Congress. Thus on June 18, 1812,^ Congress enacted "that war be and the same is hereby declared to exist between the United Kingdom of Great Britain and Ireland and the dependencies, thereof, and the United States of America and their territories." The act of May 13, 1846, recited:^ " Whereas, by the act of the Republic of Mexico, a state of war exists between that Government and the United States : Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That, for the purpose of enabling the government of the United States to prosecute said war to a speedy and successful termina- tion, the President be, and he is hereby, authorized to employ the militia, naval and military forces of the United States, etc." War resolutions of April 25, 1898, April 6, 191 7, and December 7, 1917, were of similar character.^" 209. The Recognition of War by the President. But does the President also have power to recognize war? President Jefferson thought not in 1801 but was not deterred from authorizing defensive measure. Read his message of December 8, 1801 : " " Tripoli, the least considerable of the Barbary States, had come for- ward with demands unfounded either in right or in compact, and had per- mitted itself to denounce war on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean, with assurances to that power of our sincere desire to remain in peace, but with orders to protect our com- 8 2 Stat. 755. A declaration that war " exists " is the usual form in all countries. See British Proclamation of War, August 4, 1914, Naval War College, Int. Law Docs., 1917, p. 117, and other declarations in that volume. 9 9 Stat. 9. ^° Infra, notes 18, 19. ^1 Richardson, Messages, i : 326. WRIGHT— POWER TO AIAKE POLITICAL DECISIONS. 373 merce against the threatened attack. The measure was seasonable and salutary. The Bey had already declared war. His cruisers were out. . . . One of the Tripolitan cruisers having fallen in with and engaged the small schooner Enterprise, commanded by Lieutenant Sterret, which had gone as a tender to our larger vessels, was captured, after a heavy slaughter of her men, without the loss of a single one on our part. . . . unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of Defense, the vessel, being disabled from committing further hostilities, was liberated with its crew. The legislature will doubtles consider whether, by authorizing measures of offense also, they will place our force on an equal footing with that of our adversaries." Congress made the requisite authorization by resolution of Febru- ary 6, 1802,^^ but Hamilton, as " Lucius Crassus," could not restrain a comment on the message : ^^ " The first thing in it, which excites our surprise, is the very extra- ordinary position, that though Tripoli had declared war in form against the United States, and had enforced it by actual hostility, yet that there was not power, for want of the sanction of Congress, to capture and detain her crews. . . . When analyzed it amounts to nothing less than this, that between two nations there may exist a state of complete war on the one side — of peace on the other. . . . " The principle avowed in the Message would authorize our troops to kill those of the invader, if they should come within reach of their bayonets, perhaps to drive them into the sea, and drown them ; but not to disable them from doing harm, by the milder process of making them prisoners, and sending them into confinement. Perhaps it may be replied, that the same end would be answered by disarming, and leaving them to starve. The merit of such an argument would be complete by adding, that should they not be famished, before the arrival of their ships with a fresh supply of arms, we might then, if able, disarm them a second time, and send them on board their fleet, to return safely home. . . . " Who could restrain the laugh of derision at positions so preposterous, were it not for the reflection that in the first magistrate of our country, they cast a blemish on our national character? What will the world think of the fold when such is the shepherd?" President Polk approached the position of Hamilton when he met the Mexican " invasion " of disputed American territory by authorizing the battles of Palo Alto and Resaca de la Palma. Fol- low^ing these engagements he said in his message of May ii, 1846:^* 122 Stat. 129. 13 Hamilton, Works, Hamilton, ed., 7 : 745-748. 1* Richardson, Messages, 4 : 442-443. 374 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. " After reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil. She has proclaimed that hostilities have commenced and that the two nations are now^ at war. " As war exists, and, notwithstanding all our efforts to avoid it, exists by the act of Mexico herself, we are called upon by every consideration of duty and patriotism to vindicate with decision the honor, the rights and the interests of our country. " In further vindication of our rights and defense of our territory, I invoke the prompt action of Congress to recognize the existence of the war, and to place at the disposition of the Executive the means of prose- cuting the war with vigor, and thus hastening the restoration of peace." The Supreme Court accepted the views of Hamilton and Polk, when in the prize cases, it held that President Lincoln had properly recognized the southern rebellion as war.^^ " If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be 'unilateral.' Lord Stowell (i Dodson 247) ob- serves, ' If is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other. . . . " This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. How- ever long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presents itself, without wait- ing for Congress to baptize it with a name ; and no name given to it by him or them could change the fact. . . . " Whether the President, in fulfilling his duties as Commander-in-Chief in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions, as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decision and acts of the political department of the government to which this power was intrusted. ' He must determine what degree of force the crisis demands.' The Proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case." 15 The Prize Cases, 2 Black 635, 638. Approved Matthews v McStea, 91 U. S. 7 (1875). 11 i WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 375 President AIcKinley accepted this opinion and applied it to foreign war when on April 22, 1898, he recognized the Spanish rejection of the congressional ultimatum of April 20/^ as a declaration of war and authorized a blockade of Cuba.^' Three days later, on April 25, Congress passed a resolution declaring : ^^ " That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, Ayvno Domini eighteen hun- dred and ninety-eight, including said day, between the United Sates of America and the Kingdom of Spain." In his war message of April 2, 19 17, President Wilson asked " Congress to declare the recent course of the German government to be in fact nothing less than war against the United States." Nevertheless, he admitted that it belonged to Congress to " formally accept the status of belligerent which has thus been thrust upon it." Congress did so by a resolution signed by the President i :iS p.m., April 6, 1917, which asserted "that the state of war betweert the United States and the Imperial German Government which has thus been thrust upon the United States is hereby formally de- clared." ^^ 210. The Power to Recognize War. Practice and opinion indicate that the President concurrently with Congress has power to recognize the existence of civil or foreign war against the United States. It is believed, however, that such power could not properly be exercised unless the fact of war against the United States was so patent as to leave no doubt. Acts of war, such as those committed by Germany from 191 5 to 1917, would not justify presidential recognition of war. In fact it is believed that with the general acceptance of the III Hague Convention of 1907, 16 30 Stat. 738; Moore, Digest, 6: 226. 1" Message April 25, 1898, Moore, Digest, 6: 229. 18 30 Stat. 364. 1^ Comp. Stat., p. 17, Naval War College, Int. Law Doc, 1917, p. 225. A resolution of Dec. 7, 1917, stated : " Whereas the Imperial and Royal Austro-Hungarian Government has committed repeated acts of war against the Government and the people of the United States of America: Therefore be it Resolved . . . That a state of war is hereby declared to exist between, etc." Ibid., 1917, p. 230. 376 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. by which " the contracting powers recognize that hostilities between themselves must not commence without previous and explicit warn- ing, or of an ultimatum with conditional declaration of war/' the President could not consider any act by a foreign power, short of such declaration or ultimatum, as a justification for recognition of war on his own responsibility. The commencement of war implies not only " acts of war " but also the intention to make war.^" Thus where acts of violence or reprisal alone are in question, Congress is the only authority that can put the country in a state of war, though the President may take defensive measures, and doubtless with a wider scope than President Jefferson's message of 1801 indicated. 211. The Pozver to Declare War. Where no war exists in fact. Congress is the only authority in the United States that can declare one, and Congress cannot dele- gate this power. " The Constitution," said Senator Stone, of Missouri, " vests the war- making power alone in the Congress. It is a power that Congress is not at liberty to delegate. Moreover, I am personally unwilling to part with my constitutional responsibility as a Senator to express my judgment upon the issue of war, whenever and however it may be presented." 21 However, this does not mean, as Senator Stone was contending when he made this unimpeachable statement, that Congress cannot delegate power to the President to use force for protective pur- poses.^^ Nor does it mean that the treaty-making power may not create an obligation upon Congress to declare war or to refrain from declaring it under given circumstances.^^ 212. The Power to Terminate War. Though war may be begun by one nation, it takes two to end it. The President can make an armistice which suspends or terminates 20 The Ekaterinoslav, The Argun, Takahashi, International Law Ap- plied to the Russo-Japanese War, pp. 573, 761 ; Cobbett, Leading Cases on International Law, pp. 78. 21 Cong. Rec, 64th Cong., 2d Sess., p. 5895 ; Corwin, op. cit., p. 153. 22 In the Federal Convention, Aug. 17, 1787, " declare " war was sub- stituted for " make " war on motion of Madison and Gerry so as to " leave the executive the power to repel sudden attacks." Farrand, op. cit., 2: 318. ^^ Supra, sees. 37, 59, 151, 173. WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 377 hostilities but the treaty-making power must ordinarily act to ter- minate the war. " I have yet to learn," wrote Secretary of State Bayard. " that a war in which the belligerents, as was the case with the late Civil War, are persistent and determined, can be said to have closed until peace is con- clusively established, either by treaty when the war is foreign, or when civil by proclamation of the termination of hostilities on one side and the ac- ceptance of such proclamation on the other. The surrender of the main armies of one of the belligerents does not of itself work such termination." 2* However, as the quotation suggests, war may be terminated in two other ways, by complete conquest, causing annihilation of one bel- ligerent, or by cessation of hostilities and tacit acceptance of peace by both parties.'^ The South African and American civil wars illustrate the first method ; the wars between Spain and her revolt- ing American colonies the second. 213. The Power to Recognize the Termination of War. What authority in the United States can determine the exact date at which a war terminates in these circumstances? The ques- tion is one of fact and the recognition of facts in international rela- tions is normally a function of the President. Thus President Johnson proclaimed the end of the Civil War and the courts recog- nized these proclamations as authoritative.-^ Secretary of State Seward seems to have assumed likewise that the Executive could recognize the end of a war between two foreign states, when in 1868 he informed the Spanish minister that "the United States may find itself obliged to decide the question whether the war still exists be- tween Spain and Peru, or whether that war has come to an end." ^^ The question of terminating a war by proclamation, made by one side and acquiesced in by the other, was raised by the Knox 2* Moore, Digest, 7: 2>2>7- Jefferson thought "general letters of mark and reprisal " might be preferred to a formal declaration of war, " be- cause, on a repeal of their edicts by the belligerent, a revocation of the letters of mark restores peace without the delay, difficulties and ceremonies of a treaty." Letter to Mr. Lincoln, 1808, ibid., 7: 123. 25 Wilson and Tucker, op. cit., pp. 281-282. 2« 14 Stat. 81 r, 13 Stat. 814, The Protector, 12 Wall. 700. 27 Moore, Digest, 7 : 337. 378 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. resolution of May 21, 1920, for repealing the declarations of war against Germany and Austria. This resolution was vetoed by President Wilson on May ly^^ because it " does not seek to accom- plish any of these objects " for which the United States entered the war, but when again introduced by the Senate Foreign Relations Committee, April 25, 192 1, it passed both Houses and was signed by President Harding, July 2, 1921. The Resolution was defended on the ground that what Congress could pass it could repeal. This assumption fails to recognize the distinction between an act of legis- lation and a resolution creating a status or condition. Congress can- not, in general, repeal resolutions of the latter class, of which resolu- tions admitting states to the Union, incorporating territory, admitting nationals to citizenship, etc., are examples. An act of Congress can undoubtedly terminate war legislation and bring war to an end so far as domestic law is concerned,-^^ but its international effect, whatever its wording, depends upon the attitude of the enemy. This was recognized by President Harding when he submitted to the Senate draft treaties by which the enemy powers accepted the resolution of July 2, 1921:^^'' " Formal Peace," he wrote to Senator Lodge on September 21, 1921, " has been so long delayed that there is no need now to emphasize the desirability of early action on the part of the Senate. It will be most gratifying if you and your colleagues will find it consistent to act promptly so that we may put aside the last remnant of war relationship and hasten our return to the fortunate relations of peace." We have noticed that the power of recognizing foreign states, governments and belligerency is vested exclusively in the Presi- 28 See note by C. P. Anderson, Am. Jl. Int. Law, 14: 384 (July, 1920). Text of Resolution, ibid., p. 419; legislative history, ibid., p. 438; veto mes- sage, Cong. Rec, 59: 7747. See also Corwin, Mich. Law Rev., 18: 669 (May, 1920). 28a This was accomplished in part by a Resolution of March 3, 1921 (41 Stat. 1359), and in full by that of July 2, 1921. See remarks of Senator Lodge, Cong. Rec, Sept. 24, 1921, 61 : 6434. 281) Cong. Rec, Sept. 24, 1921, 61 : 6434. In presenting the treaties from the Committee on Foreign Relations Senator Lodge remarked : " Where would the failure to ratify leave us? It would leave us where we are today — in a technical state of war with Germany, Austria, and Hungary." Ibid., Sep- tember 26, 1921, 61 : 6458. I WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 379 dent.^'' The power to recognize the existence of war to which the United States is a party is vested concurrently in the President and Congress, the latter having the power by implication from its ex- press power to declare war.^" No constitutional clause has been cited from which congressional power to recognize the termination of war can be implied. On the contrary a resolution vesting Congress with power to " make peace " was voted down in the Fed- eral Convention of 1787.^^ The President's power to recognize the termination of war may be clearly deduced from his power as the representative organ and has been admitted by the Supreme Court in the case of the Civil War.^^ His proclamation or his reception or dispatch of diplomatic representatives from or to a former enemy therefore seems the proper method for recognizing peace in the absence of treaty, though, as in the case of recognizing new states, he is of course free to solicit the advice of Congress, which action would usually be desirable. This was the course actually followed in terminating the wars with Ger- many, Austria, and Hungary. By his proclamation, issued on No- vember 14, 1921,^^^ after exchange of ratifications of the treaty with Germany of August 25 (and similar treaties with the other powers) President Harding recognized that the war terminated on July 2, 192 1, the date on which Congress had passed a resolution declaring the war " at an end." The antedating of the proclamation indi- cates that the war terminated, not by express treaty, but by tacit agreement, recognized in the United States by the President, when, in his opinion, there was sufficient evidence that Germany had con- curred in the opinion expressed by the United States on July 2. B. The Power to Use Force in Foreign Affairs. 214. Diplomatic Pressure. Force, coercion, or pressure may assume a number of forms in the conduct of foreign relations. The sending of notes, the making 29 Supra, sec. 194. 30 Supra, sec. 210. 31 Debate, Aug. 17, 1787, Farrand, op. cit., 2: 319. 32 The Protector, 12 Wall. 700. 32a Treaty Series No. 658. 380 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. of formal protest, the withdrawal of a minister or ambassador, or the complete severance of diplomatic relations are milder forms of pressure, although all may carry implications of more serious action, and the last is seldom resorted to except as a preliminary to war. These acts are within the exclusive power of the President.^^ 215. Display of Force. A more material means of bringing pressure is the display of force. This measure may be designed to bring pressure upon a foreign government by intimidation ; to bring protection to mer- chant vessels on the high seas ; or to bring order on the high seas through the intimidation of pirates, slave traders, etc. The Pres- ident as Commander-in-Chief has power to move the navy. President Roosevelt's dispatch of a naval vessel to Colon, Panama, in 1903 illustrates the efifectiveness of such methods. His dis- patch of the fleet around the world in 1903 furnishes another illus- tration.^* Display of force is useless as an agency of intimidation unless the party to be intimidated believes the force has power to act. Hence this method of bringing pressure can hardly be sep- arated from such methods as the occupation of territory, reprisals, and the seizure of private property. Consequently the use of the navy for intimidation should be authorized by the President only after due consideration and never by a subordinate except in extreme emergency. Thus in 1887 Secretary of State Bayard wrote the Charge in Peru : ^^ " It is always expected that the agents of this Department abroad will exercise extreme caution in summoning national war vessels to their aid at critical junctures, especially if there be no practical purpose to be sub- served by their presence." Congress has on several occasions authorized the display of force for protecting merchant vessels. Such authority was given by several acts of 1798 to defend them against French privateers. On February 25, 1917, President Wilson asked Congress to authorize 33 Moore, Digest, 7 : 103. ^■^ Supra, sec. 145, Thayer, Life of John Hay, 2: 351. President Roose- velt's threat to employ force if Germany refused to arbitrate the Venezuela question in 1904, may also be mentioned. Ibid., 2: 287. 35 Moore, Digest, 7: 109, see also Mr. Adee to Mr. Sill, 1895, ibid., 2: 401. : WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 381 the arming of merchant vessels as a defense against German sub- marines but added : ^^ " No doubt I already possess that authority without special warrant of law, by the plain implication of my constitutional duties and powers, but I prefer in the present circumstances not to act upon general implication. 1 wish to feel that the authority and the power of the Congress are behind me in whatever it may become necessary for me to do." The proposed measure passed the House of Representatives but was defeated by a Senate filibuster. Several Senators attacked it as an unconstitutional delegation of the power to declare war. However, on March 12th, Secretary of State Lansing gave out a statement to the foreign legations in Washington that : ^^ " The government of the United States has determined to place upon all American merchant vessels sailing through the barred areas, an armed guard for the protection of the vessels and the lives of the persons on board." President John Adams had no doubt of his power to authorize the arming of merchant vessels, although he asked Congress to make detailed regulations for this purpose as it did in 1798.^^ The neu- trality laws appear expressly to recognize the President's power by requiring armed merchant vessels leaving American ports to give bond "until the decision of the President is had thereon." ^* It should be noticed, however, that international law, as interpreted in American courts, authorizes the condemnation by a belligerent of merchant vessels resisting visit and search,^" and an act of 1819, still in effect, expressly prohibits resistance to " a public armed vessel of some nation in amity with the United States." *^ The President's power to authorize arming is, however, clear, as is his power to authorize protection by naval convoys.^^ 3^ Corwin, op. cit., p. 152. 37 Naval War College, Int. Law Docs.. 1917. p. 225. 38 Message, May 16, 1797, Richardson, Messages, i : 237. 39 Criminal Code of 1910, sec. 17. 40 The Bermuda, 3 Wall. 514; The Jane, 37 Ct. CI. 24; The Rose, 37 Ct. CI. 240; Moore, Digest, 7: 485-487; Naval War College, Int. Law Topics, 1903, p. no; 1907, p. 61. 41 Act March 3, 1819, 3 Stat. 513, made permanent Jan. 30, 1823, 3 Stat. 721. See also remarks of J. Q. Adams, Moore, Digest, 7 : 492. *^ Ibid., 7: 492; Corwin, op. cit., p. 156. 38-' WRIGHT— POWER TO MAKE POLITICAL DECISIONS. Congress has sometimes authorized the use of the navy for police purposes on the high seas, as to enforce neutrahty and the suppres- sion of piracy and the slave trade as required by treaty, but the President would seem to have power even in the absence of such acts, though seizures could not be made except of American vessels, pirates, or vessels liable under treaties.*^ Forces may also be displayed on land frontiers by authority of the President as a defensive measure. An illustration is furnished by the mobilization on the Mexican border in 19 14.'** 216. Occupation and Administration of Territory. The President doubtless has power to order the occupation of foreign territory to defend the territory of the United States against an " instant and overwhelming " menace.^^ Thus the Amelia Island pirates were destroyed in 1817 and General Pershing's ex- pedition was sent into Mexico in pursuit of Villa in 1916.^^ An " instant and overwhelming " menace to American citizens abroad would give similar justification. The bombardment of Greytown, Nicaragua, in 1852 and the dispatch of troops to Peking in 1901 are illustrations.*^ The President may similarly dispatch troops in fulfil- ment of treaty guarantees. Thus several Presidents dispatched troops to Panama in pursuance of the guarantee treaty of 1846 and President Roosevelt sent troops to Cuba in 1906 in pursuance of the treaty of 1903.*^ Where foreign territory is occupied in order to bring pressure upon a foreign government, the action is very likely to lead to war and an authorizing resolution of Congress would seem necessary. However, such occupations have occurred without express authoriza- tion, as for example- President Taft's dispatch of troops to Nicara- gua and San Domingo, and President Wilson's dispatch of troops to *^ Supra, sees. 125, 126, 151. ** Am. Year Book, 1914, p. 303. *5 The legitimacy of self-help in the presence of "a necessity of self- defense, instant, overwhelming and leaving no choice of means and no moment for deliberation " was recognized in the Caroline controversy of 1840, Moore, Digest, 2: 412. *6 For other instances see Moore, 2 : 402-408. *'' Ibid., 2: 400-402, 414-418; 5: 476-493. *8 Supra, sec. 145, Taft, op. cit., p. 87. WRIGHT— POWER TO AIAKE POLITICAL DECISIONS. 383 San Domingo, Haiti, and Vera Cruz, Mexico.*^ In such.cases ratify- ing resolutions have frequently been passed after the act, or treaties have been made with the occupied state.^" Occupation of enemy territory is, of course, a legitimate method of warfare, and a declaration of war, ex propria vigore, authorizes the President to both occupy and militarily govern enemy territory, although it does not authorize him to annex it.^^ 217. Capture and Destruction of Foreign Military Forces. The dispatch of military or naval forces to capture or destroy the forces of a foreign government would seem to bear such a close resemblance to war that it could hardly be authorized by the Pres- ident alone. However, as we have seen in the case of the Tripolitan "war" of 1801, President Jefferson took siKh action, which was subsequently ratified by Congress. President Polk did the same in the Mexican war, though according to his theory the battles of Palo Alto and Resaca de la Palma were fought on United States territory in repelling invasion. Admiral Perry seems to have been authorized to use force to open Japan in 1852 and the Wyoming had similar authority to aid in the opening of the Straits of Shi- minoseki, Japan, in 1864. ^^ In fact in most cases of display of force, undoubtedly an ultimate use of force was authorized. Naval officers have often been sent on diplomatic missions by authority of the President alone, to semi-civilized states, with the evident intention that f&rce should not only be displayed but used if nec- essary.^^ Use of military force against foreign powers has often been authorized by Congress without declaration of war. This was true of resolutions relating to France in 1798, to Tripoli in 1801, *^ Corwin, op. cit., p. 162, supra, sec. 207. '^0 Thus a ratifying resolution was passed after the Vera Cruz incident of 1914, and a treaty authorizing the exercise of a police power by the United States was made with Haiti after the intervention had begun. ''^ Cross V. Harrison, 16 How. 164; Santiago v. Nogueras, 214 U. S. 260; Fleming v. Page, 9 How. 603. ''^ Moore, Digest, 7: 112-118. 53 Infra, sec. 239. See also Paullin, Diplomatic Negotiations of Ameri- can Naval Officers, Baltimore, 1912. 384 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. to Algiers in 1816, to Paraguay in the Water Witch incident of 1858, to Venezuela in 1890.^* A declaration or recognition of war of course automatically gives full power to the President to authorize an attack upon the military forces of the enemy. 218. Seicure and Destruction of Private Property. Congress is expressly given power to " grant letters of marque and reprisal, and make rules concerning captures on land and water." ^^ The President has no power to direct the capture of private property without express authorization of statute, treaty, or international law. Congress may authorize the grant of letters of marque and reprisal in time of peace, but has never done so.**' During the war of 1812 privateering commissions were issued and in the Civil War they were authorized but not issued. Privateering is prohibited by the Declaration of Paris of 1856, and though the United States has never acceded, yet it has not resorted to the practice in subsequent wars.^^ Congress may authorize naval forces to make reprisal upon private property at sea in time of peace. Thus President Jackson asked Congress to authorize him to make reprisals against French vessels in view of the non-execu- tion of the claims treaty of 1831 : ^^ " The laws of nations," said President Jackson, " provide a remedy for such occasions. It is a well settled principle of the international code that where one nation owes another a liquidated debt, which it refuses or neglects to pay, the aggrieved party may seize on the property belonging to the other, its citizens or subjects, sufficient to pay the debt, without giving just cause of war. This remedy has been repeatedly resorted to, and recently by France herself towards Portugal, under circumstances less un- questionable." Clay, in his report from the Senate Committee on Foreign Relations, wrote : ^^ " Reprisals do not of themselves produce a state of public war but they are not unfrequently the immediate precursor of it. . . . The authority '* Moore, Digest, 7: 109-112. '>'U. S. Constitution, I, sec. 8, cl. 11. ''« Mr. Sanford to Mr. Cass, Aug. 16, 1857, Moore, Digest, 7 : 122. ^■i Ibid., 7: 544, 5S8, 5S8. ^^ Ibid., 7: 124. '^^ Ibid., 7: 126-127. WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 385 to grant letters of marque and reprisal being specially delegated to Congress, Congress ought to retain to itself the right of judging of the time when they are proposed to be actually issued. The committee are not satisfied that Congress can, constitutionally, delegate this right." Congress has, in fact, never authorized reprisals upon private prop- erty in time of peace, though reprisals and military expeditions against foreign territory both with and without congressional au- thorization have often resulted in the destruction of private prop- erty, as did the Greytown, Nicaragua, bombardment of 1852, and the Vera Cruz' occupation of 19 14. By a declaration of war, Congress authorizes general reprisals against enemy property at sea so far as permitted by international law. Treaties may provide for making captures of private property, as in suppressing the slave trade and seal poaching. The President has power to employ the navy and revenue cutter service to enforce treaties without other authority, though Congress has usually given him express authority.*"' International law authorizes the capture on the high seas of pirates at all times and of enemy and certain neutral private propi- erty in time of war. The President's powers in this regard derive from international law and are limited by it. He can authorize the capture of enemy and neutral private property at sea only as permitted by that law, which is enforced by prize courts before which captures must be brought for condemnation. Before such courts, an order of the President contrary to international law, unless authorized by express statute, will not justify the captor.*'^ Private property on land, even of the enemy, is exempt from seizure under international law, except when " military necessity " permits its requisition, sequestration, contribution, or destruction.^" The President, it has been held, cannot authorize a general con- fiscation of enemy property. Thus, said the Supreme Court in Mitchell V. Harmony : ®^ ^^ Supra, sees. 118, 119, 125, 126. *^ Little V. Barreme, 2 Cranch 170. «2 IV Hague Conventions, 1907, Arts. 46-56. 63 Mitchell V. Harmony, 13 How. 115 (1851). 386 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. " There are, without doubt, occasions in which private property' may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner ; but the officer is not a trespasser. " But we are clearly of opinion, that in all of these cases the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified." Congress, however, under its power to make rules concerning capture on land and water may authorize seizures contrary to inter- national law.^* In Brown v. United States, during the War of 1812, Chief Justice Marshall refused to permit the confiscation of British property on land since Congress had not expressly acted.^^ "Does that declaration (of war), by its own operation, so vest the property of the enemy in the government, as to support proceedings for its seizure and confiscation, or does it vest only a right, the assertion of which depends on the will of the sovereign power? The universal practice of forbearing to seize and confiscate debts and credits, the principle uni- versally received, that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers the right of confiscation. ... It appears to the court, that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war." In view of these decisions, and considering the Emancipation Proclamation of January i, 1863, as a general confiscation of a par- ticular type of enemy property by proclamation of the President, there is serious ground for doubting the constitutionality of that proclamation."^ The doubt, however, was very soon; removed 64 Miller v. U. S., 11 Wall. 268; Willoughby, op. cit., p. 1220. "5 Brown v. U. S., 8 Cranch no (1814). It is doubtful whether inter- national law at present confers a " right of confiscation " even upon the sov- ereign authority. Supra, note 62. «' Richardson, Messages, 6: 85, 96, 157; Burgess, Civil War and Re- construction, 2: 117; Rhodes, History of U. S., 4: 70, supra, sec. 47, note 59. WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 387 by passage of the thirteenth amendment.' During the Civil War, Congress authorized the confiscation of many kinds of enemy prop- erty on land, and during the World War it authorized sequestration of such property in the United States by an alien property custo- dian." 219. Commercial Pressure and Retaliation. Through its power to regulate foreign commerce, the postal serv- ice and by implication all means of conveyance and transmission of intelligence with foreign nations. Congress may bring pressure by means of retorsion, retaliation, non-intercourse and embargoes. Measures of retorsion and retaliation have been frequent. Thus by an act of 1818, " the ports of the United States were closed, after September 30, 1818, against British vessels arriving from a British colony which, by the ordinary laws, was closed against American vessels." ^^ The general revenue act of September 8, 1916, pro- vides for retaliation against British commercial restrictions, the black list and mail seizures although that country was not spe- cifically referred to.^^ An act to protect American oil investors abroad by retorsion was thus referred to in a note of November 10, 1920, protesting against the Allied policy in Asia Minor :'^*' " The General leasing law of February 25, 1920, has not always been thoroughly understood. It proposes to treat the citizens of any foreign coun- try precisely as that foreign country treats our citizens. It is no more re- strictive than the golden rule. It is a purely defensive provision. ... At the same time the United States must be prepared to meet promptly and effec- tively any imwelcome developments or any kind of competition that may fall to our lot with the purpose of safeguarding, so far as may be in our power, the future security of this country." Non-intercourse measures and general embargoes were used during the French Revolutionary and Napoleonic wars to bring pressure upon the belligerents and on March 14, 1912, an act was "^ Supra, note 64. Trading with the Enemy Act, Oct. 6, 1917, sees. 6, 7, 40 Stat. 415-416; Comp. Stat., sec. 3ii5V$cc, d. '8 3 Stat. 432 ; Moore, Digest, 7 : 106. 8^39 Stat. 799, sees. 805, 806; Comp. Stat'., sec. 883oqr; Am. Year Book, 1916, pp. 68, 69, 73. ^0 This act (Feb. 25, 1920, sec. i) was also referred to in a note to the Netherlands government on April 19, 1921, protesting against exclusion of American interests from oil development in the Djambi fields in the Dutch East Indies. PROC. AMER. PHIL. SOC, VOL. LX, Z, MARCH I4, I922. 388 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. passed authorizing the President to embargo arms and munitions bound to American countries in a condition of domestic violenceJ^ In all of these acts power has been delegated to the President to decide when the circumstances contemplated by the act exist and by proclamation to put it into effect. This delegation has been justified on the same theory as delegation in reciprocity acts, that it is delegation to find on a fact and not to determine a policy.'^ The general power of Congress to prohibit importations or exportations has been sustained under the commerce clause. ^^ Congress also has power under this clause to regulate cables, radio and telegraph used in foreign commerce'^* but in this field the President has been held to have concurrent powers : '^^ " The President has charge of our relations with foreign powers. It is his duty to see that, in the exchange of commodities among nations, we get as much as we give. He ought not to stand by and permit a cable to land on our shores under a concession from a foreign power which does not permit our cables to land on its shores and enjoy there facilities equal to those ac- corded its cable here. For this reason President Grant insisted on the first point in his message of 1875. " The President is not only the head of the diplomatic service, but com- mander in chief of the Army and Navy. A submarine cable is of inestimable service to the Government in communicating with its officers in the diplomatic and consular service, and in the Army and Navy when abroad. The Presi- dent should, therefore, demand that the Government have precedence in the use of the line, and this was done by President Grant in the third point of his message. " Treating a cable simply as an instrument of commerce, it is the duty of the President, pending legislation by Congress, to impose such restrictions as will forbid unjust discriminations, prevent monopolies, promote competi- tion, and secure reasonable rates. These were the objects of the second and fourth points in President Grant's message. " The President's authority to control the landing of a foreign cable does not flow from his right to permit it in the sense of granting a franchise, but from his power to prohibit it should he deem it an encroachment on our rights or prejudicial to our interests. ... I am of the opinion, therefore, that ''■1 Moore, Digest, 7: 142-151 ; 37 Stat. 630; Comp. Stat., sec. 7677. ■^2 The Brig Aurora, 7 Cranch 382, 388, approved in Field v. Clark, 143 U. S. 649 (1892) ; supra, sec. 60. "U. S. V. The William, 28 Fed. 614 (1808). 7* Pensacola Tele. Co. v. Western Union, 96 U. S. i (1878). 76 Richards, Acting Att. Gen., 22 Op. 13 ; Moore, Digest, 2 : 462. WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 389 the President has the power, in the absence of legislative enactment, to con- trol the landing of foreign cables." Prohibition by Congress of the importation of particular goods, such as lottery tickets, obscene literature, low grade teas, prize fight films, etc., has also been resorted to as a protective measure and has been sustained by the courts.'® Similarly the XVIII Amend- ment has provided for the prohibition of the import or export of alcoholic beverages. Treaties may require the prohibition of commerce in certain articles but ordinarily legislation is necessary to execute such pro- visions.'^'^ Thus the commerce in opium with Corea is prohibited by article VII of the treaty of 1882 but express provision is made that it " shall be enforced by appropriate legislation on the part of the United States and of Chosen." According to international law, as applied by American courts, trading with the enemy automatically becomes illegal by the dec- laration of war, unless licensed by authority of Congress or the President. But Congress has usually passed express acts prohibit- ing such trade.''* 220. Exclusion, Expulsion and Internment of Aliens. Finally as a defensive measure Congress has authorized the exclusion and internment of alien enemies in time of war and the exclusion and expulsion of aliens of defined classes and nationalities in time of peace.'''' The power of Congress to pass such acts has been sustained, in part under the commerce clause^" and in part ^« Buttfield V. Stranahan, 192 U. S. 470 (1904); Weber v. Freed, 239 U. S. 325. ''''Supra, sec. 59; infra, sec. 256. ^s Trading with the Enemy Act, Oct. 6, 1917, 40 Stat. 411; Comp. Stat. ■^9 Alien enemies, Rev. Stat., 4067, amended April 16, 1918; Comp. Staf., sec. 7615 ; Chinese Exclusion and Expulsion, May 6, 1882, 22 Stat. 58, amended 1884, Comp. Stat., sec. 4290, and act Sept. 13, 1888, 25 Stat. 479, Comp. Stat., 4313; exclusion and expulsion of undesirable aliens, act Feb. 5, 1917, sees. 3, 18, 19, 39 Stat. 875, 887, 889, and act Oct. 16, 1918, 40 Stat., c. 186, sec. i, Comp. Stat., 4289^. ^° Head Money Cases, 112 U. S. 580. 390 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. as resulting from numerous powers in foreign relations which to- gether constituted the usual powers of " sovereign and independent states." ^^ These laws have delegated wide powers of enforce- ment, often with a minimum of judicial review, to executive officers but this delegation has been sustained. ^^ The alien act of June 25, 1798, provided : ^^ " That it shall be lawful for the President of the United States at any time during the continuance of this act to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States within such time as shall be expressed in such order." Hardly less broad is the act of October 16, 1918, providing that: " Aliens who are anarchists, . . . who are members of or affiliated with any organization that entertains a belief in, teaches or advocates the over- throw by force or violence of the government of the United States or of all forms of law, or that entertains or teaches disbelief in or opposition to all organized governments . . . shall be excluded from the United States," and if such alien is found in the United States, he " shall upon the warrant of the Secretary of Labor be taken into custody and deported." During the World War many alien enemies were interned by order of the President under authority of the alien enemy act of July 6, 1798, as amended to include women in April, 1918.®* 221. Power to Employ J'^arious Methods of Coercion. Of the seven types of measvires discussed, the President can, in pursuance of his constitutional duties, authorize diplomatic pres- sure, or display of force on national territory or on the high seas without express authority of Congress. He has, in pursuance of such duties, authorized the occupation of foreign territory and the capture and destruction of foreign military forces without express authority, though generally Congress has ratified his act by later resolution. It would seem that the President in such cases ought to await an authorizing resolution unless an immediate necessity de- mands promptness. Finally authority to seize or destroy private " Chinese Exclusion Cases, 130 U. S. 581 ; Pong Yue Ting v. U. S., 149 U. S. 398. 82 U. S. V. Ju Toy, 198 U. S. 253. 83 I Stat. 576. 84 Supra, note 77. 1 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 391 proi)erty, to enforce commercial discriminations, restrictions or pro- hibitions and to exclude, expel or intern aliens must be given by act of Congress, treaty or international law, but much discretion may be delegated the President. The existence of war, whether by declaration of Congress or recognition by the President, ex propria vigore, authorizes the President, as Commander-in-Chief, to enforce such of these measures of coercion as are permitted by the inter- national law of war, and Congress cannot interfere with him in the direction of military and naval forces : " Congress," said the Supreme Court, " has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily ex- tends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of fofces and the con- duct of campaigns. That power and duty belong to the President as com- mander-in-chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions. The power to make the necessary laws is in Congress, the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authority essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law. Congress can not direct the conduct of campaigns." ^4" 222. Purposes for Which the President J\lay Employ Force under the Constitution. However, we cannot distinguish the respective powers of the President and Congress merely by considering the method of coercion. The purposes or ends in view are even more important. The Constitution requires the President to " take care that the laws be faithfully executed. "^^^ Though this imposes a responsibility and is not a grant of power, yet it indicates certain purposes for which the President must use the constitutional powers elsewhere granted. What does the term " laws " embrace ? In the Neagle case, the court held that it should be broadly interpreted.^^ 84a £.1- parte Milligan, 71 U. S. 2 (1866). See also Willoughby, op. cit., 2: 1207; Taft. op. cit., pp 94-99; W'right, Col. Law Rev., 20: 134. 8' U. S. Constitution, II, sec. 3 ; supra, sec. 93. ^^ In re Neagle, 135 U. S. i ; Willoughby, op. cit., p. 1135. 392 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. "Is this duty limited to the enforcement of Acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international' relations and the protection implied by the nature of the government under the Constitution?" The Constitution guarantees the " privileges and immunities of citizens of the United States " and these were held in the Slaughter House cases to include the right to protection abroad. ^^ Conse- quently the President's duty to execute the laws includes a duty to protect citizens abroad and in pursuance of this duty he may utilize his powers as Commander-in-Chief. Thus the court justified the President in authorizing the bombardment of Greytown, Nicaragua, in 1854:^^ " As respects the interposition of the Executive abroad, for the protection of the lives or property of the citizen, the duty must, of necessity, rest in the discretion of the President. Acts of lawless violence to the citizen or bis property cannot be anticipated and provided for; and the protection, to be effectual or of any avail, may, not unfrequently, require the most prompt and decided action. Under our system of Government, the citizen abroad is as much entitled to protection as the citizen at home. The great object and duty of Government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home ; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth the preserving." In the Neagle case the Supreme Court referred to and endorsed executive action in 1853 in protecting Alartin Koszta, a Hungarian revolutionist who had not completed his American naturalization. Captain Ingraham, in command of the American sloop-of-war St. Louis arrived in Smyrna as Koszta was being abducted, " de- manded his surrender to him, and was compelled to train his guns upon the Austrian vessel before his demands were complied with." The court notes that Secretary of State Marcy's defense of this action and insistence upon the liberation of Koszta who had been placed in charge of the French consul at Smyrna "met the ap- proval of the country and Congress, who voted a gold medal to Cap- tain Ingraham for his conduct of the affair." Yet says the court, 8^ U. S. Constitution, Amendment XIV ; Slaughter House Cases, 16 Wall. 36. 88 Durand v. Hollins, 4 Blatch 451, 454; Corwin, op. cit., p. 144. WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 393 " upon what act of Congress then existing can any one lay his finger in support of the action of the government in this matter." ^' In view of these incidents and judicial endorsements, we may accept Borchard's statement ; with the sole qualification that " the manner " must not amount to a making of war : ^^ " Inasmuch as the Constitution vests in Congress authority ' to declare war ' and does not empower Congress to direct the President to perform his constitutional duties of protecting American citizens on foreign soil, it is believed that the Executive has unlimited authority to use the armed forces of the United States for protective purposes abroad in any manner and on any occasion he considers expedient." The Constitution also guarantees the States a Republican form of government and protection against invasion.^^ Furthermore the right of national self-defense is recognized at international law and the corresponding duty of the government has been asserted by the Supreme Court : ^- " To preserve its independence and give security against foreign aggres- sion and encroachment is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated." Thus, if he considers such action essential for the enforcement of acts of Congress and treaties and for the protection of the citizens and territory of the United States, the President is obliged by the Constitution itself to use his power as commander-in-chief to direct the forces abroad, and this duty resting on the Constitution itself cannot be taken away by act of Congress. Thus says President Taft : ^^ 89 In re Neagle, 135 U. S. i. »o Borchard, op. cit., p. 452. See also Root, address in Senate, Aug. 14, 1912, Cong. Rec, 48: 10929; Military and Colonial Policy of the United States, 1916, p. 157. »i U. S. Constitution, Art. IV, sec. 4. 92 Chinese Exclusion Cases, 130 U. S. 581 (1889). 93 Taft, op. cit., pp. 128-129. See also Wright, Col Law Rev., 20: 135- 136, and Am. Jl. Int. Law, 12: 77; supra, sees. 125, 126, 151. By reduction of the army and navy or refusal of supplies. Congress might seriously impair the de facto power of the President to perform these duties, but it can not limit his legal power as Commander-in-Chief to employ the means at his disposal for these purposes. See Ex parte Milligan, 4 Wall. 2, stipra, sec. 221. 394 WRIGHT— POWER TO MAKE POLITICAL DECISIONS. " The President is made Commander-in-Chief of the Army and Navy by the Constitution, evidently for the purpose of enabling him to defend the country against invasion, to suppress insurrection and to take care that the laws be faithfully executed. If Congress were to attempt to prevent his use of the army for any of these purposes, the action would be void." 223. Purposes for Which the President May Employ Force under Statute. Aside from the purposes defined by the Constitution itself, for which the President may utilize the forces, other purposes have been defined by act of Congress. It is true, the general delegations of power to use the militia and the similar delegation to use the army and navy " to execute the laws of the union, suppress insur- rection and repel invasions " have been given an interpretation con- fining such use to the territory.^^ Laws in this phrase has been held to mean laws of territorial application and says Pomeroy : ^^ " Insurrection and invasion must be internal. We do not repel an in- vasion by attacking the invading nation upon its own soil. Still there can be no question that the militia may be called out before the invaders set foot upon our territory. It is a fair construction of language to say that one means of ' repelling ' an invasion is to have a force ready to receive the threatened invaders when they shall arrive." Attorney-General Wickersham, however, makes the qualification : ^^ "If the militia were called into the service of the General government to repel an invasion, it would not be necessary to discontinue their use at the boundary line, but they might (within certain limits, at least) pursue and capture the invading force, even beyond that line. . . . This may well be held to be within the meaning of the term ' to repel invasion.' " The expatriation act of July 27, 1868, however, authorizes the President to demand the release of American citizens unjustly de- prived of liberty and : ^^ »*Act of Jan. 21, 1913 (Dick Act), 32 Stat, 776, sec. 4; 35 Stat. 400; 38 Stat. 284, based on Acts of May 2, 1794, and Feb. 28, 179S, i Stat. 264, 424. Judge Ad. Gen. Davis held in 1908 that the term " laws " might apply to any congressional resolution of extraterritorial effect (Cong. Rec, 42: 6943), but this was not sustained by the Attorney General, infra, note 96. S5 Pomeroy, Constitutional Law, 9th ed., p. 387. 96 Wickersham, Att. Gen., 29 Op. 322 (1912). »^ Rev. Stat., sec. 2001 ; Comp. Stat., sec. 3957. WRIGHT— POWER TO MAKE POLITICAL DECISIONS. 395 "If unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release." Aside from such general acts,®* Congress may authorize a broad use of force by acts or resolutions applying to particular incidents and by declarations of war.®" According to Justice Stor^' in IVIartin v. Alott, it belongs to the President himself to interpret the exigencies in which a use of force is justifiable : "° " He is necessarily constituted the judge of the existence of the exigency in the first instance and is bound to act according to his belief of the facts. , . . Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts." This case applied to the act of 1795 delegating the President power to call forth the militia, but the same principle would seem valid whatever the source of his authority, whether statute, treaty or the Constitution itself. 224. Conclusion. Thus in practice the President has an exceedingly broad discre- tion to authorize the use of the forces. Under the Constitution he can use the military and naval forces to defend the territory and to protect American citizens abroad and on the high seas. The use of force to protect inchoate citizens, such as Martin Koszta, and inchoate territority such as San Domingo in 1871 is more question- able.^*'^ For the meeting of responsibilities under international law and treaty the President likewise has authority to use the army and navy on the high seas and in foreign territory .^°^ To meet responsibilities under inchoate international law, such as the Monroe »8 For legislation authorizing the use of force to meet international re- sponsibilities, see Chap. XII, A. »9 Moore, Digest, 7: 109, 155; Wright, Am. Jl. Int. Law, 12: yy. 100 Martin v. Alott, 12 Wheat. 19. 101 Corwin, op. cit., pp. 142, 158, and debate there quoted from Cong. Globe, 42 Cong., ist sess., pt. i, p. 294. -^^"^ Supra, Chap. XII, A. 396 WRIGHT— POWER TO ESTABLISH Doctrine, the power, though often exercised, is more questionable,^''^ and for the use of forces within the territory, even to meet inter- national responsibilities, statutory authorization is generally advis- able, though apparently not strictly necessary.^^* Finally, for the purpose of bringing pressure upon foreign governments for polit- ical objects, it is doubtful whether the President has constitutional power to use force, although he may bring diplomatic pressure. For political intervention, authorization by special resolution of Congress seems proper and has been the usual practice. CHAPTER XVII. The Power to Establish Instrumentalities for Conducting Foreign Relations. A. Constitutional Principles. 225. The PoK'er of Congress to Create Offices and Agencies. The establishment of an instrumentality for conducting public affairs involves two processes, (i) the creation of an office or agency, by definition of its functions, procedure and privileges, (2) the nomination, appointment and commissioning of a person or per- sons to fill such office or agency. Since Chief Justice Marshall's decision in McCulloch v. Maryland there has been no question but that Congress has power to create instrumentalities " necessary and proper " to give full effect to the powers delegated to any of the departments of the government.^ " Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Consti- tution, are constitutional." This power extends not only to the creation of corporations but also to the organization of the executive and judicial departments i'53 Corwin, op. cit., p. 162. 104 Supra, sec. 126. 1 McCulloch V. Md., 4 Wheat. 316. INSTRUMENTALITIES FOR FOREIGN RELATIONS. 397 of government. Congress has exclusive power to create "offices" under the United States aside from those established by the Con- stitution itself, " to raise and support armies " and " to provide and maintain a navy." - It also has power, concurrent in part with that of the President, " to make rules for the government and regulation of the land and naval forces "; ^ and power, concurrent in part with that of the states, though supreme when exercised, to organize the militia.* Thus Congress has adequate power to create any instru- mentality which may be " necessary and proper " for the exercise of executive power. Hardly less complete is its power to create courts. It may " con- stitute tribunals inferior to the Supreme Court " for exercising the judicial power of the United States outlined in Article III of the Constitution and may regulate their jurisdiction and the appellate jurisdiction of the Supreme Court.^ But it may also organize courts in the territories'^ or abroad^ and administrative courts in the United States which hear and decide cases but do not exercise the judicial power described in Article III.^ Practically the only legal limitation upon the power of Congress to create and organize instrumentalities not defined by the Consti- tution itself, for the exercise of national powers, is (i) that it may not itself exercise judicial or executive power, (2) that it may not delegate legislative power, (3) that it may not vest non-judicial power in the federal courts, though it may in administrative courts, and (4) that it may not burden state officers, though it may vest in them powers exercisable at discretion.^ 226. The Power to Create Offices and Agencies by Treaty. The treaty-making power may provide instrumentalities conven- ient for carrying out powers in the legitimate scope of treaties, 2U. S. Constitution, Art. II, sec. 2, cl. 2; I, sec. 8, cl. 12, 13. 3 Ibid., I, sec. 8, cl. 14 ; Ex parte Milligan, 4 Wall. 2. * Ibid., I, sec. 8, cl. 16; Houston v. Moore. 5 Wheat, i. ^ Ibid., I, sec. 8, cl. 9; III. sec. 2, cl. 2; Ex parte McCardle, 7 Wall. 506. ^ Am. Ins. Co. v. Canter, i Pet. 511. 7 In re Ross, 140 U. S. 453. 8 Gordon v. U. S., 2 Wall. 561 ; Willoughby, op. cit., p. 1277. 9 Supra, sec. 60 ; Gordon v. U. S., 2 Wall. 561 ; Ky. v. Dennison, 24 How. 66; Willoughby, Am. Constitutional System, p. 123. 398 WRIGHT— POWER TO ESTABLISH such as diplomatic and consular offices, consular courts for exer- cising American jurisdiction abroad or foreign jurisdiction in the United States, and international courts, councils, and administrative unions. Doubtless in many cases Congress would have to create and provide for the necessary " offices " under the United States before such treaty-established organs could become effective, but such a need of congressional cooperation is not a legal limitation upon the treaty power. Legally the treaty power seems to be lim- ited in its power to create and organize instrumentalities not defined by the Constitution itself, only by the condition that the instrumen- tality be bona fide of international interest and by the conditions stated above applicable to the power of Congress.^" 227. The Power of the President to Create Offices and Agencies. The President and the courts are not specifically endowed with power to create new instrumentalities for exercising national powers. In the Neagle case, the Supreme Court went far toward recognizing a power in the President to delegate executive authority to persons not occupying a congressionally established " office." This, how- ever, should probably be interpreted no farther than a recognition that the President may create subordinate agencies, not strictly " offices " necessary for performing executive functions.^^ The President's authorization of personal " agents " for conducting diplo- matic negotiations and representing the United States in interna- tional conferences is justified under the same inherent power. Leg- islative bodies and courts seem to have a similar inherent power to create subordinate positions by merely making appointments thereto. In most cases the nature and necessity of such subordinate positions has been established by practice and tradition, the issue being raised rather as to the inherent power to make appointments thereto, than as to the inherent power to create the position.^^ In addition to such essential subordinate positions, the President, as representative authority of the nation, has recognized and applied 10 7n re Ross. 140 U. S. 453. "/n re Neagle, 135 U. S. i ; Willoughby, Constitutional Law, 1155. ^- Infra, sec. 228 (3). INSTRUAIENTALITIES FOR FOREIGN RELATIONS. 399 international law to determine the grades of " ambassadors, public ministers and consuls " to be sent by the United States. These offices being established by the Constitution itself, congressional action is not necessary.^^ As Commander-in-Chief, the President has exercised much discretion in organizing the Army and Navy. He may provide administrative agencies and courts for governing territory under military occupation, even after conclusion of war and annexation of the territory,^* but he cannot vest such courts with prize jurisdiction.^^ This power is, of course, superseded by acts of Congress organizing the territory. 228. The Appointment of Officers and Agents. Quite different is the situation with reference to the filling of such offices or agencies once created. It is often said that the ap- pointing power is essentially executive in character, and doubtless con- stitutional understandings have tended toward presidential dominance in this field, but as a matter of federal constitutional law, it seems that the President has no more inherent power in this regard than do the other departments. All power to make appointments seems to be derivable (i) from express delegation by the Constitution, (2) from act of Congress, (3) from inherent powers of the depart- ments under the principle of separation of powers. Strictly speak- ing, the making of an appointment involves three processes : nomi- nation, appointment and commissioning. The first and last have for the most part been vested in the President alone, and undoubtedly the sole power of initiation and absolute veto upon appointments thus implied makes his will paramount in appointments. It should be noticed that the courts have held that the granting of a commis- sion is a ministerial duty after the appointment has been made but they admit there is no power to compel the President to sign a ^2 Infra, sec. 236. "Cross V. Harrison, 16 How. 164; Santiago v. Nogueras, 214 U. S. 260. 15 Jecker v. Alontgomery, 13 How. 498, but Congress may retroactively confer such jurisdiction on presidential courts. The Grapeshot, 9 Wall'. 129. 400 WRIGHT— POWER TO ESTABLISH commission (except tHreat of impeachment) and without the com- mission no person is an " officer " with legal powers.^" 1. The Constitution provides that the President " shall nominate, 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 which shall be established by law." " The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." To the states is " reserved . . . respectively, the appoint- ment of the officers " of the militia even when called forth into na- tional service.^" 2. " 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." ^^ 3. Finally, an inherent power of appointment exists in each of the departments as an implication of the doctrine of separation of powers. " If any one of the departments," says Goodnow, " is to be expected to be independent of the others, it must have the power to appoint its subordinates. The legislature may thus appoint all its subordinate officers, while courts may appoint such officers as criers and others who are necessary in order that the courts may perform their duties properly." ^^ It may be added that the President exer- cises such an inherent power in appointing personal agents for con- ducting diplomatic intercourse without congressional authorization and without consent of the Senate, a practice which the Senate has often objected to but never with success. -° It may also be noticed that in the National Government Congress has in fact conferred power on the courts to appoint such essential subordinates as clerks, 16 Marbury v. Madison, i Cranch 137. If a commission has been signed and is in the hands of an officer, other than the President, its delivery may be mandamused, ibid. 1^ U. S. Constitution, II, sec. 2, cl. 2. 3 ; I, sec. 8, cl. 16. IS Ibid., II, sec. 2, cl. 2. 19 Goodnow, op. cit., pp. 37-38. '^^ Infra, sees. 238-240. INSTRUMENTALITIES FOR FOREIGN RELATIONS. 401 criers, reporters, etc., under the constitutional clause referred to, but doubtless in the absence of such statutes the courts could make such appointments as they have done in the states. 229. Limitations upon the Appointing Power. Apparently the only constitutional limitation upon the appoint- ing power is that which provides : ^^ " No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States which shall have been created or the emoluments whereof shall have been increased during such time ; and no person holding any office under the United States shall be a member of either House during his continuance in office." It should be noticed, however, that the incompatibility of congres- sional membership with the holding of an " office " does not apply to service as an agent. Senators have often been sent on special diplomatic missions, under presidential appointment. The occu- pancy of a judicial office is not incompatible with the holding of another ofifice. John Jay and Oliver Ellsworth were each sent on diplomatic missions by appointment of the President, consented to by the Senate, while justices of the Supreme Court, and on other occasions justices have been appointed by the President to serve on courts of arbitration.^^ The Senate held that Gallatin's position as Secretary of the Treasury was incompatible with his appoint- ment as commissioner to conclude the Peace Treaty of Ghent and forced his withdrawal from the former position. The grounds of this incompatibility, however, were never precisely stated and do not seem to be sustained by analogy or subsequent practice. Thus while Civil Governor of the Philippines, Mr. Taft was appointed on a special mission to the Pope, and while Secretary of State, Mr. Lansing was appointed upon the mission to conclude the Peace Treaty of Versailles. In neither of these cases, however, was the appointment to a regular ofifice, nor was it submitted to the Senate.^^ 21 U. S. Constitution, I, sec. 6, cl. 2. -2 Corwin, op. cit., p. 66; supra, sec. 176. 23 Moore, Digest, 4: 447. For facsimile reproduction of Mr. Lansing's commission, see Lansing, The Peace Negotiations, 1921, p. 28. 402 WRIGHT— POWER TO ESTABLISH 230. Powers of Removing and of Directing Officers and Agents. In the United States Government, though not in the states, the re- moval power seems to belong inherently to the Chief Executive, This was decided in the debate of the first Congress on a bill for organ- izing the Department of State and has been consistently admitted since, with exception of the period of the tenure of office acts, 1867- 1887. These acts, originating in political hostility to President Johnson, were virtually held to have been unconstitutional by the Supreme Court after their repeal.^* Through the power of removal the President has the power to direct administrative officials with no practical restraint, as was illus- trated by President Jackson's action in the bank controversy. By successive removals of Secretaries of the Treasury, he was able to direct the removal of government deposits from the Second United States Bank, although by law discretion in this matter belonged to the Secretary .^^ " I think," wrote Attorney General Gushing in 1855, " the general rule to be . . . that the head of department is subject to the direction of the President. (This was said in relation to duties imposed by statute upon a head of a department.) I hold that no head of department can lawfully perform an official act against the will of the President and that will is, by the Constitution, to govern the performance of all such acts." 26 As Commander-in-Chief, the President has complete power of di- recting the military and naval services of the national government. ^'^ 2* Parsons v. U. S., 167 U. S. 324. The power to remove has usually been considered an implication of the power to appoint. {Ex parte Hennen, 13 Pet. 230, 1839; U. S. V. Perkins, 116 U. S. 143; Shurtlefif v. U. S., 189 U. S. 311; President Wilson's veto of National Budget Bill, June 4, 1920.) This derivation of the power, however, would seem to leave Congress dis- cretion to determine the authority to remove " inferior officers " for whose appointment they may provide, a discretion it has never successfully exercised as to executive and administrative officers and which is inconsistent with the recognized practice whereby the President alone removes, even when the appointing power is the President acting with advice and consent of the Senate. See Powell, National Municipal Review, 9 : 538-545, and supra, sees. 52, 53- 25 Goodnow, op. cit., pp. 77-82. 26 Gushing, Att. Gen., 7 Op. 453, 470. 2'' £.r parte Milligan, 4 Wall. 2, supra, sec.' 221. INSTRUMENTALITIES FOR FOREIGN RELATIONS. 403 B. Application of Principles to Foreign Affairs. 22,1. The Types of Agencies Conducting Foreign Relations. The instruments used for conducting foreign relations may be classified as (i) national, military, naval, administrative, and judi- cial officers ; (2) national and international political officers and agents; (3) international administrative and judicial agencies. Officers of the first kind are clearly national. They are the product of national law alone and are accountable to national law alone. Agencies of the last kind are just as clearly international. They can be founded only by the agreement of nations, and can exercise authority only in matters, as to which nations have agreed to be bound by them. Officers and agencies of the second class, how- ever, occupy a twilight zone. We may distinguish the offices in the group which are primarily national from the agencies primarily international. Thus a diplomatic officer or consul, though enjoying certain rights, privileges and powers under international law, is primarily a national officer, bound primarily by his national law and policy. He can act only under express instructions. He is in fact a delegate. On the other hand, the representative of a nation sitting in a general congress or conference, such as the Hague or Algeciras conferences, the Berlin or Versailles congresses or the Assembly of the League of Nations, though theoretically occupying a status similar to that of a diplomatic officer,^^ bound by his na- tional laws and subject to instructions, tends to be in fact a repre- sentative rather than a delegate. His judgments tend to be founded upon an international point of view, developed by the discussions of the conference itself, rather than by the instructions of his home state. In the Senate discussion upon the character of the repre- sentatives to the Panama congress in 1825, Senator Benton recog- nized this distinction,^^ 28 Scott, ed., Reports to the Hague Conferences, Intro., XIX. 29 Benton, Abridgment of Debates, 8 : 463-464. We do not intend to en- dorse Senator Benton's implication with reference to the power of the Senate to consent to the appointment of such representatives. PROC. AMER. PHIL. SOC, VOL. LX., AA, MARCH 14, 1922. 404 WRIGHT— POWER TO ESTABLISH "The Ambassadors and Ministers here intended (that is, by the Con- stitution) are such only as are known to the law of nations. Their names, grades, rights, privileges, and immunities are perfectly defined in the books which treat of them, and were thoroughly understood by the framers of our Constitution. They are. Ambassadors — Envoys — Envoys Extraordi- nary— Ministers — Ministers Plenipotentiary — Ministers Resident. . . . Tried by these tests, and the diplomatic qualities of our intended Ministers fail at every attribute of the character. Spite of the names which are imposed upon them, they turn out to be a sort of Deputies with full powers for un- definable objects. They are unknown to the law of nations, unknown to our Constitution ; and the combined powers of the Federal Government are incompetent to create them. Nothing less than an original act, from the people of the States, in their sovereign capacity, is equal to the task. Had these gentlemen been nominated to us as Deputies to a Congress, would not the nominations have been instantly and unanimously rejected? And shall their fate be dififerent under a different name? The delicacy of this position was seen and felt by the administration. The terms ' Deputy ' and ' Commissioner ' were used in the official correspondence up to near the date of the nomination, but' as these names could not pass the Senate, a resort to others became indispensable. The invitations and acceptance were in express terms, for 'Deputies and Representatives' to a Congress." The nominations to the Senate are wholly dififerent." It is true, Senator Benton's view did not prevail in the Senate, and, according to American constitutional theory as well as to the theory of international law, representatives in an international conference or congress are no different from diplomatic officers. ^° The distinc- tion has existed, however, as a psychological fact and will necessarily be emphasized if such conferences or congresses sit periodically. Count Beust remarked in 1870, upon finding it impossible to call together the Concert of Europe to prevent the Russian violation of the Treaty of Paris and the impending Franco-Prussian War, " II ne vois pas d'Europe." ^^ He thus emphasized that by its periodic meetings before that time, the Concert had in fact constituted a European organ and not a mere group of national delegates. It was because of its confidence in this psychological effect of periodic conferences that the Hague Conference of 1907 recommended a third conferences^ and the actual play of this psychological factor ^'^ Corwin, op. cit., p. 57 ; supra, note 28. 31 Von Beust, Memoires, Trans. H. de Worms, London, 1887, 2: 222. 32 Scott, ed., Reports to Hague Conferences, pp. 216, 222. See also In- struction of Secretary of State Root to American delegates to the Second INSTRUMENTALITIES FOR FOREIGN RELATIONS. 405 is emphasized by the remarks of M. Nelidow of Russia, president of the conference, in his closing remarks : ^^ " We are the agents of our governments and act by virtue of special instructions, based before all other considerations upon the interests of our respective countries. The higher considerations of the good of mankind in general should no doubt guide us, but in applying them we must have upper- most in our minds the intentions of those who direct our Governments. But the direct interests of different States are often diametrically opposed. It was in endeavoring to bring them into agreement with the theoretical re- quirements of absolute law and justice, that the spirit of good understanding, which I have just mentioned, came into play." A similar thought in the Congress of Versailles led to the establish- ment of the League of Nations and in this institution the problem of, to a certain extent, merging national official delegates with true representatives in an international institution was consciously con- fronted. Thus said President Wilson in presenting the first draft of the Covenant to the Peace Conference on February 14, 1919:^* " When it came to the question of determining the character of the representation in the Body of Delegates (Assembly), we were all aware of a feeling which is current throughout the world. Inasmuch as I am stating it in the presence of the official representatives of the various governments here present, including myself, I may say that there is a universal feeling that the world can not rest satisfied with merely official guidance. There has reached us through many channels the feeling that if the deliberating body of the League of Nations was merely to be a body of officials representing the various Governments, the peoples of the world would not be sure that some of the mistakes which preoccupied officials had admittedly made, might not be repeated." 232. National Military, Naval and Administrative Offices. From the standpoint of foreign relations the most important national agencies are the Army, Navy and Department of State. The Constitution puts the organization of the Army, Navy and militia in the hands of Congress. The President, however, exercises con- siderable independent power as Commander-in-Chief in the detailed organization of the military forces and in the organization of mili- Hague Conference, 1907, Scott ed., Instructions to the American Delegates to the Hague Conferences and their Official Reports, 1916, p. 72. " Ibid., p. 200. '♦League of Nations, II, special No., p. 17. 406 WRIGHT— POWER TO ESTABLISH tary governments for occupied territory, and territory annexed by treaty but not yet organized by Congress. ^^ " Theoretically," said the Supreme Court, " Congress might prepare and enact a scheme of civil government to take effect immediately upon the cession, but practically, there always have been delays and always will be. Time is required for the maturing and enacting of an adequate scheme of civil government. In the meantime, pending the action of Congress, there is no civil power under our system of government, not even that of the President as civil executive, which can take the place of the government which has ceased to exist by the cession. Is it possible that, under such cir- cumstances, there must be an interregnum? We think clearly not. The authority to govern such ceded territory is found in the laws applicable to conquest and cession. That authority is the military power, under the control of the President as Commander-in-Chief, . . . But whatever may be the limits of the military power, it certainly must include the authority to establish courts of justice which are so essential a part of the government." The authority of such officers and courts is, however, confined to the locaHty. They cannot exercise a prize jurisdiction.^*^ 233. Appointment of Military and Civil Officers. The states are guaranteed the privilege of appointing mihtia officers, but the President may delegate his authority as Commander- in-Chief of the militia when " in the actual service of the United States " to an officer of his own appointment.^^ The appointment of army and navy officers, as well as of civil officers, is vested in the President acting by and with the advice and consent of the Senate, except insofar as Congress may have vested the appoint- ment of inferior officers " in the President alone, in the courts of law, or in the heads of departijients." The President may make interim appointments during a recess of the Senate.^® Congress has actually vested the appointment of warrant officers of the Navy and Marine Corps in the President alone and tem- porarily in the Secretary of the Na\^'.^^ Petty officers in the Navy and non-commissioned officers in the Army are appointed by com- missioned officers. Commissioned officers are generally appointed 35 Santiago v. Nogueras, 214 U. S. 260. 3" Supra, sec. 227. 37 Secretary of War Monroe, 1812, Am. State Pap., Mil. Aff., i: 604; Att. Gen. Butler, 2 op. 711 (1835). *8 Supra, sec. 228. s8 Rev. Stat., sec. 1405, Act May 22, 1917, sec. 5, 40 Stat. 86; Comp. Stat., sees. 2554, 2555. INSTRUMENTALITIES FOR FOREIGN RELATIONS. 407 by the President with the advice and consent of the Senate but emergency appointments below the rank of colonel have been vested in the President alone. ■*'^ Promotion and retirement are provided for by detailed acts of Congress. All military officers are commis- sioned by the President and he has the power of removal, though in the Army and Navy this power is exercised only through courts- martial. As Commander-in-Chief, the President exercises the power of directing all the military and naval services.*^ 234. Organization of the Department of State. The Department of State is peculiarly under control of the President. It was organized by an act of 1789 and, differing from other departments, is not required to make any reports to Congress. " It is," says Senator Spooner, of Wisconsin, " a department which from the beginning the Senate has never assumed the right to direct or control, except as to clearly defined matters relating to duties imposed by statute and not connected with the conduct of foreign relations. We direct all the other heads of departments to transmit to the Senate designated papers or information. We do not address directions to the Secretary of State, nor do we direct requests, even to the Secretary of State. We direct requests to the real head of that department, the President of the United States, and, as a matter of courtesy, we add the qualifying words: 'if in his judgment not incompatible with the public interest.' " ^^ Though Senate confirmation of the appointment of the Secretary of State is required, yet, as in the case of other cabinet officers, it is never withheld. As " real head of that department " the Presi- dent has never tolerated a lack of political harmony with the Secre- tary of State. Thus in 1800 after President Adams had requested Timothy Pickering to tender his resignation and no response had been forthcoming he addressed him a note which " discharged him from any further service as Secretary of State." President Wil- son promptly accepted Secretary of State Lansing's resignation in 1920 when a divergence in policy became evident.*^ *<> Act May 18, 1917, sec. 8, 40 Stat. 81, as amended April 20, 1918; Comp. Stat., sec. 2044b. . cU., p. 55. INSTRUMENTALITIES FOR FOREIGN RELATIONS. 413 fund or relied upon a subsequent appropriation."*' Here also the Congress has sought to intervene, though its power is less than in the case of permanent missions, requiring steady appropriations. By an act of March 4. 1913, it provided:*'^ " Hereafter the Executive shall not extend or accept any invitation to participate in any international congress, conference, or like event without first having specific authority of law to do so." Congress has undoubtedly gone beyond its powders in thus at- tempting to control the President's foreign negotiations and the President has ignored the act, notably at the Versailles Peace Con- gress. The actual influence of Congress in this field depends upon the necessity for appropriations. If international conferences be- come frequent, this necessity would doubtless be controUing."- 238. Pozver of President to Appoint Diplomatic Agents. Finally, the Senate has often criticized the President's practice of appointing agents, sometimes with the titles of diplomatic officers, without gaining its consent. This practice began almost immediately after ratification of the Constitution when President Washington by a letter of October 13, 1789, requested Gouverneur Morris, then in Paris, to go to London as private agent, and " on the authority and credit " of the letter to " converse with His Bri- tannic Majesty's Ministers as to certain matters affecting the rela- tions between the two countries." In 1792 John Paul Jones, then an admiral in the United States Navy, was appointed as commis- sioner to treat with Algiers. In 1816 President Monroe sent three commissioners to investigate affairs in the revolting Spanish-Amer- ican colonies and in the same year he sent Isaac Chauncey, a naval captain, to act with Consul William Shaler to negotiate a treaty with Algiers."^ 60 Crandall, op. cit.. p. 76. This was also true of the conference on limitation of armament, 1921, though provisions in the Naval appropriation acts of 1916 and 1921 authorized the calling of such a conference, supra, sec. 204. '^^ 37 Stat. 913; Comp. Stat., 7686. 62 Report on Foreign Service, supra, note 55, pp. 225-228. 63 Moore, Digest, 4 : 452-453. 414 WRIGHT— POWER TO ESTABLISH 239, Practice of Sending Presidential Agents. Since that time the practice has become exceedingly common. Among the more notable appointments have been Charles Rhind, Commodore Biddle, and Consul David Offley to negotiate a treaty with Turkey in 1829; Colonel Roberts, special agent to China, Siam and other eastern states in 1832; A. Dudley Mann, special agent to various German states in 1846, confidential agent to revolting Hun- gary in 1849, and special agent to Switzerland in 1850; Nicholas Trist, commissioner to conclude a treaty of peace with Mexico in 1847; Commodore Perry, commissioner to conclude a treaty with Japan in 1852. During the Civil War a number of special and con- fidential agents were sent to England for purposes of investigation and propaganda as well as negotiation. Commodore R. W. Shu- feldt was sent as special envoy to conclude a treaty with Corea in 1 881 ; Secretary of State Bayard with William Putnam of Maine and J. B. Angell of Michigan were vested with power to treat with Great Britain on the North East Fisheries question in 1887. James H, Blount was sent as special commissioner to Hawaii in 1893. Secretary of State Day and Whitelaw Reid, associated with Sen- ators Cushman K. Davis, William P. Frye and George Gray, were sent to Paris to conclude a treaty of peace with Spain in 1898. Missions were sent to the Hague conferences in 1899 and 1907 and W. W. Rockhill was sent as " commissioner of the United States to China with diplomatic privileges and immunities " in 1900. Henry White and Samuel R. Gummere were commissioned by President Roosevelt to represent the United States at the Algeciras confer- ence of 1906. Governor Taft, of the Philippines Commission, was sent to negotiate with the Pope in 1902. John Lind was sent as confidential agent to Mexico in 1913, Colonel House was sent to Germany in 1916 and to France in 1917, and Elihu Root at the head of a special mission of nine was sent to Russia in 19 17, with the title of Ambassador Extraordinary. President Wilson constituted him- self, with Secretary of State Lansing, Colonel House, Henry White and General Tasker Bliss, a commission to conclude a treaty of peace with Germany in 1919, and in 1921, after failure of the Senate to consent to the ratification of the treaty of Versailles, President Hard- INSTRUMENTALITIES FOR FOREIGN RELATIONS. 415 ing authorized Ellis Loring Dresel to negotiate a separate peace treaty with Germany. In the same year President Harding appointed Sec- retary of State Hughes, Elihu Root, Senators Lodge and Underwood American delegates to the Conference on Limitation of Armament.*'* A minority of the Senate Foreign Relations Committee reported in i< " The whole number of persons appointed or recognized bj' the Presi- dent, without the concurrence or advice of the Senate, or the express au- thority of Congress, as agents to conduct negotiations and conclude treaties (prior to June 25, 1887) is four hundred and thirty-eight. Three have been appointed by the Secretary of State and thirty-two have been appointed by the President with the advice and consent of the Senate." Apparently the only appointments to special missions which have been confirmed by the Senate since 181 5 are the commissioners to the Panama Congress of 1825, those to negotiate with China in 1880, and the five commissioners to negotiate the Treaty of Wash- ington with Great Britain in 1871.^^ 240. Controversies with Respect to Presidential Agents. In spite of the habitual practice, the Senate has often protested. Its objection to the interim appointments by President Madison in 181 3 would extend a fortiori to purely presidential commissioners. President Jackson's mission appointed to treat with Turkey in 1829 was criticized in the Senate in 1831, though Senator Tazewell, of Virginia, the principal critic, admitted "the power of the President to appoint secret agents when and how he pleases." '^'' " But," he continued, " as a Senator, I do claim for the Senate, in the language of the Constitution, the right of advising and consenting to the appointment of any and every officer of the United States, no matter what ^*Ibid., 4: 440, 446, 456; Crandall, op. cit., p. 78; Foster, Diplomatic Practice, chap. X; Corwin, op. cit., pp. 62, 64; Henry Adams, Education, p. 146; J. M. Forbes, Letters and Recollections, 1899, 2: 32; Paullin, Diplo- matic Negotiation of American Naval Officers, passim; Gerard, My Four Years in Germany, p. 197 ; Lansing, The Peace Negotiations, Chap. II ; Root, The United States and the War, 1918, p. 92; Lodge, Remarks in the Senate, September 26, 1921, Cong. Rec, 61 : 6458. 65 Fiftieth Cong., 2d Sess., Sen. Doc. No. 231, VIII, 332. 66 Crandall, op. cit., p. 77. 6' Benton, Abridgment, 11 : 207. 416 WRIGHT— POWER TO ESTABLISH may be his name, what his duties, or how he may be instructed to perform them. And it is only because secret agents are not officers of the United States, but the mere agents of the President or of his Secretaries, or of his military or naval commanders, that I disclaim all participation tn this ap- pointment" Senator Livingston answered : '^^ " Sir, there are grades in diplomacy which give different ranks and privileges — from an ambassador to a secret agent. . . . Ambassadors and other public Ministers are directed to be appointed by the President by and with the advice and consent of the Senate; because public missions re- quired no secrecy, although their instructions might. But the framers of the Constitution knew the necessity of missions, of which not only the object but the existence should be kept secret. They therefore wisely made co- operation of the Senate ultimately necessary in the first instance, but left the appointment solely to the President in the last. . . . On the 30th March, 1795. in the recess of the Senate, by letters patent under the great broad seal of the United States, and the signature of their President (that Presi- dent being George Washington), countersigned by the Secretary of State, David Humphreys was appointed commissioner plenipotentiary for negoti- ating a treaty of peace with Algiers. . . . " I call the attention of the Senate to all the facts of this case with the previous remark, that the construction which it gives to the Constitu- tion was made in the earliest years of the Federal Government, by the man who presided in the convention which made that Constitution, acting with the advice and assistance of the leading members of that body, all fresh from its discussion ; men who had taken prominent parts in every question that arose. . . . " By those men, with this perfect and recent knowledge of the Con- stitution, acting under the solemn obligation to preserve it inviolate and with- out any possible motive to make them forget their duty, was this first precedent set ; without a single doubt on the mind that it was correct ; with- out protest, without even remark. A precedent going the full length of that which is now unhesitatingly called a lawless, unconstitutional usurpation ; bearing the present act out in all its parts, and in some points going much beyond it." Although futilely, the Senate continued to protest. In 1882, in con- senting to ratification of the treaty with Corea it resolved that it : ^^ " does not admit or acquiesce in any right or constitutional power in the President to authorize or empower any person to negotiate treaties or carry on diplomatic negotiations with any foreign power, unless such person shall have been appointed for such purpose or clothed with such power by and ^s Ibid., 1 1 : 220-222. 69 Malloy, Treaties, etc., p. 340. INSTRUMENTALITIES FOR FOREIGN RELATIONS. 417 with the advice and consent of the Senate, except in the case of a Secretary of State or diplomatic officer appointed by the President to fill a vacancy occurring during the recess of the Senate, and it makes the declaration in order that the means employed in the negotiation of said treaty (with Corea") be not drawn into precedent." In 1888 the Senate Foreign Relations Committee in reporting ad- versely upon the proposed fisheries treaty with Great Britain held in " reserve, for the time being, those grave questions touching usur- pations of unconstitutional powers or the abuse of those that may be thought to exist on the part of the Executive." The minority report, however, sustained the President's appointments in this case by citation of precedents, and in the debate Senator Sherman, chair- man of the Foreign Relations Committee, who had concurred in the majority report, admitted : '° '"The President of the United States has the power to propose treaties, subject to ratification by the Senate, and he may use such agencies as he chooses to employ, except that he can not take any money from the Treasury to pay those agents without an appropriation by law. He can use such instruments as he pleases. ... I suppose precedents have been quoted by the Senator from Alabama (Mr. Morgan, who prepared the minority report) to sustain that position. I do not disagree with him, nor does this controversy turn upon that point." Senate criticism was directed against the commissioning of J. H. Blount to Hawaii in 1893 with "paramount" authority in all matters afifecting the relationship of the United States to the Islands. The majority report of the Foreign Relations Committee, however, held : "^ " Many precedents could be quoted to show that such power has been exercised by the President on various occasions, without dissent on the part of Congress. These precedents also show that the Senate of the United States, though in session, need not be consuUed as to the appoint- ment of such agents." This position was endorsed by Senator Lodge in presenting the Ger- man peace treaty to the Senate in 1921 : '^^^ " It is the unquestioned right of the President to appoint personal agents to gather information for him, as was done in a rather famous case when Ambrose Dudley-Mann was sent to Hungary at the time of Kossuth's rebel- 70 Moore, Digest, 4 : 455 ; Cong. Rec, Aug. 7, 1888, pp. 7285, 7287. 71 Cong. Rec, 53d Cong., 2d Sess., p. 127; Corwin, op. cit., p. 64. 7ia Cong. Rec, September 26, 1921, 61 : 6458. 418 WRIGHT— POWER TO ESTABLISH lion, or the President, of course, can appoint anyone he chooses to represent him in a negotiation, because the power of initiating and negotiating a treaty is in his hands. " We have an example at this moment in the treaty with Germany now before us. As I stated on Saturday, the Gentleman who represented us in Berlin had been sent there by President Wilson, taken from the diplomatic service and charged to represent the United States as far as it could be done as a commissioner. He was simply a personal agent of the President. He could not officially represent the United States. We could not have an ambassador because we were technically at war with Germany. Therefore he was sent there, and he represented the President in negotiating the treaty with Germany now before us and signed it." Finally notice may be taken of the 7th proposed Senate reserva- ' tion to the Treaty of Versailles. As considered on November 19, 1919, it provided: " No citizen of the United States shall be selected or appointed as a member of said commisssions, committees, tribunals, courts, councils, or conferences except with the approval of the Senate of the United States." Later this sentence was omitted, and, as considered on March 19, 1920, reservation seven retained merely the requirement that the United States should only be represented in the League of Nations, and, on the agencies established by the treaty, by persons author- ized thereto by " an act of the Congress of the United States pro- viding for his appointment and defining his powers and duties." '^^ 241. Presidential Agent Not an Officer. The power of the President independently to dispatch diplomatic agents seems to be considered a proper implication from the Presi- dent's diplomatic powers and is well established in practice. Such an agent, however, is not an officer of the United States. This is evidenced by the fact that Senators who, according to the Consti- tution, cannot at the same time hold offices under the United States, have occasionally served on special missions and also by express statement of the Attorney-General. He is not, under the law, en- titled to compensation. Thus the President is limited in the use of such missions by the size of the contingent fund.'^ 72 The League of Nations, III, no. 4. PP- i79. 196 (Aug., 1920). A reser- vation of similar effect was made by the Senate in consenting to ratification of the German peace treaty of August 25, 1921, Cong. Rec, Oct. 18, 1921, 61: 7194. INSTRUMENTALITIES FOR FOREIGN RELATIONS. 419 242. International Administrative and Judicial Agencies. The third class of instrumentalities for conducting foreign re- lations are international in character and rest on treaty or agree- ment alone. Arbitration courts for hearing particular questions have been set up by executive agreement alone, by executive agree- ment authorized by general treaties and by treaties. The Bureau of the Universal Postal Union is authorized, so far as the United States is concerned, by executive agreement under an act of Congress. The Bureau of other international unions and of the Hague Permanent Court of Arbitration as well as the panel of arbitrators of the court are set up by treaty. International courts were established for trial of slave traders by the treaty of 1 863-1 870 with Great Britain and by the XII Hague Convention of 1907 an international prize court was provided for, but the latter treaty, though consented to by the Senate, has never been ratified. The President has usually appointed representatives in such bodies on the authority of the agreement or treaty alone, though if the body is permanent, the need of appropriation makes congres- sional action necessary. Congress has provided by law for partici- pation of the United States in the Pan-American Union,"* the Bureau of the Hague Permanent Court of Arbitration,^^ the Inter- national Prison Commission,''^^ and other organs. It has not at- tempted to control the organization or method of appointing rep- resentatives on such bodies, though the proposed seventh reser- vation to the Peace Treaty of Versailles would have done so for organs set up by that treaty. In general the congressional acts seem to have assumed that the power to appoint commissioners to' such bodies is vested in the President alone, and that such com- missioners are not " officers " of the United States, since Senators have frequently served, especially on courts of arbitration. In 1913, however, Congress attempted to forbid presidential participation in 73 The U. S. Constitution, I, sec. 6, cl. 2 ; Knox, Att. Gen., 23 Op. 533 (1901") ; Moore, Digest, 4: 440; Corwin, op. cit., pp. 65-66. 7* Act July 14, 1890, 26 Stat. 275. ''^ Act March 22, 1902, 32 Stat. 81. 7«Act Feb. 22, 1913, 37 Stat. 692; Act re International Waterways Commission, June 13, 1902, 42 Stat. 373 ; Comp. Stat., sec. 4984. PROC. AMER. PHIL. SOC, VOL. LX., BB, MARCH I5, I922. 420 WRIGHT— POWER TO ESTABLISH any " international congress, conference or like event, without first having specific authority of law to do so." ^^ Congress through its control of appropriations has been gaining an increasing influence in regulating the grade, location and number of offices in the permanent foreign service, and the President's constitutional discretion in these matters has been seriously impaired. The President has, however, retained his independence both of Congress and of the Senate in the sending of special missions, and the appointment of representatives on international organs. Al- though the consular service has to a considerable extent been brought under civil service regulations, the diplomatic service has not for positions above that of Secretary. Appointments are re- garded as political and the President exercises discretion, limited by the legislation establishing the office and the need of senatorial advice and consent. These services are subject to the direction of the President, enforceable through his independent removal power.'^' 243. Conclusion on Power to Conduct Foreign Relations. We conclude that under the Constitution the control of foreign relations is given almost exclusively to the national government, but it extends only so far as expressly or impliedly delegated. In fact, this delegation has been almost, if not entirely complete, and the constitutional limitations upon its exercise in defense of indi- vidual rights, states rights and the rights and privileges of na- tional organs of government are comparatively unimportant. Ad- equate powers exist in the President, the treaty-making power, Congress and the courts to meet all international responsibilities, to make agreements of a genuinely international character, to make decisions of international importance, and to carry out national policies. But these powers have been distributed among independ- ent organs. Is there a single principle underlying this distribution? We believe there is. The President initiates, controls and con- cludes, checked by the possibility of a Senate veto on permanent international agreements and by a congressional veto upon national decisions calling for positive action. '■^ Supra, notes 61, 72. ^8 Report on the Foreign Service, jj(/)ra, note 55, pp. 21-31, 45, 65; supra, sec. 230. INSTRUMENTALITIES FOR FOREIGN RELATIONS. 421 For meeting the ordinary responsibilities and exercising the ordinary powers of states in the family of nations, guided by inter- national law, the President alone is competent, and his powers, being in the main derived from the Constitution itself, he is not subject to the detailed direction of Congress, as he is in exercising his powers in domestic administration. For departures from the nor- mal, whether by way of international agreement or national policy, though the President initiates, the Senate or Congress must consent. While the powers upon which these organs are able to insist go little beyond a discretionary veto upon consummations, yet the Pres- ident ought to understand that to avoid the possibility of this contin- gency he should consider their advice during the course of nego- tiations and diplomacy. The dominating position of tlie President in foreign relations results from his initiative, and this is a necessary consequence of the position he occupies as the representative authority of the United States under international law. His ofifice is the only door through which foreign nations can approach the United States. His voice is the only medium through which the United States can speak to foreign nations. Moreover the fathers appear to have intended him to occupy this position and subsequent history has shown his exer- cise of the initiative and essential control. On occasions when foreign affairs have not pressed he has subordinated his initiative to congressional policies but always when crises have arisen he has met them with a prompt decision and adequate resources of power. Only rarely has the veto of coordinate departments destroyed his achievements. PART V. The Understandings of the Constitution. CHAPTER XVHI. Understandings Concerning the Relations of the Independent Departments. 244. Reason for Constitutional Understandings. The various organs of the national government are together vested with sufficient power to conduct foreign affairs and meet in- 422 WRIGHT— UNDERSTANDINGS CONCERNING ternational responsibilities, but, according to the doctrine of separa- tion of powers, each of the three departments of government exer- cises an independent discretion, legally uncontrolled by any other au- thority. Three difficulties may arise from this situation : (A) The powers of two departments may overlap, giving rise to contrary action on the same occasion. " The existence," said a Senate Foreign Relations Committee report of 1898, " of the same power for the same purposes in both the legislative and executive branches of the Government might lead to most unfortunate result's. For instance, if the legislative and executive branches both possessed the power of recognizing the independence of a foreign nation, and one branch should declare it independent, while the other denied its independence, then, since they are coordinate, how could the problem be solved by the judicial branch? " 1 (B) An independent department may lack sufficient power to achieve a desired end without the cooperation of another independ- ent department. " A treaty," said the Circuit Court, " is the supreme law of the land in ■respect of such matters only as the treaty-making power, without the aid of Congress, can carry into effect. Where a treaty stipulates for the payment •of money for which an appropriation is required, it is not operative in the ■^ense of the Constitution." 2 (C) Organs properly adapted to meeting certain international responsibilities may not exist. The general principle which ought to govern the discretion of the departments in the presence of such difficulties has been thus expressed by the Supreme Court of North Carolina : ^ " While the executive, legislative, and supreme judicial powers of the government ought to be forever separate and distinct, it is also true that the science of government is a practical one ; therefore, v/hile each should firmly maintain the essential powers belonging to it, it cannot be forgotten that the three coordinate parts constitute one brotherhood, whose common trust re- quires a mutual toleration of what seems to be a ' common because of vicinage' bordering on the domains of each." 1 Sen. Doc. 56, S4th Cong., 2d sess., p. 4 ; Corwin, op. cit., p. 36, supra, sec. 191. 2 Turner v. Am. Baptist Missionary Union, 5 McLean 347 ; Wharton, Digest, 2 : 73; Moore, Digest, 5 : 222. s Brown v. Turner, 70 N. C. 93, 102. RELATIONS OF INDEPENDENT DEPARTMENTS. 423 A. The Overlapping of Povjers of Independent Departments. 245. Constitutional Understanding Respecting the Overlapping of Powers. The difficulty arising from the overlapping of the powers of two independent and coordinate departments of the government has been met in part by the legal principle that the most recent exercise of power prevails and in part by the understanding that each de- partment should so exercise its concurrent powers as not to impair the validity of action already taken by the other department with- out that department's consent. 246. Concurrent Pozvcrs of President and Congress. The powers of the President or of the courts cannot conflict with those of Congress or the treaty-making power, because the constitutional acts of the latter are declared the supreme law of the land. Consequently, a conflicting act of the President or the courts would be contrary to law and void. The President and courts, however, have certain powers concurrent with congressional powers in the sense that they may validly act, until Congress has acted. Thus the Supreme Court could determine its appellate juris- diction upon the basis of Article III of the Constitution alone,^ and the President could organize and conduct military government in newly acquired territory, regulate the landing of cables, and issue regulations for branches of the civil service before Congress had acted. ^ But once Congress, or the treaty-making power, has acted, if its act is constitutional, there is no doubt but" that it is the supreme law of the land, and the President and courts are hence- forth bound by it.*' An act either of Congress or of the treaty-mak- * Ex parte McCardle, 7 Wall. 506, 513, and Marshall, C. J., in Durousseau V. U. S., 6 Cranch 307, 313, and U. S. v. Moore, 3 Cranch 159, 170, 172. "Santiago v. Nogueras, 214 U. S. 260; Richards, Acting Att. Gen., 22 Op. 13 ; Moore, Digest, 2 : 452-463 ; supra, sec. 219. 'Where two organs enjoy concurrent powers to produce a status, the one acting first, of course, eflfects the result. Thus a presidential recognition of ■war would be effective irrespective of subsequent acts of Congress. " In short, it frequently happens that the same legal result may be produced by very different powers of government; nor need the fact lead to confusion, since, as soon as any of the competent powers has acted, the result is pro- duced." Corwin, Mich. Law Rev., 18: 672, but see his President's Control of Foreign Relations, p. 36. 424 WRIGHT— UNDERSTANDINGS CONCERNING ing power which encroaches upon the constitutional powers of the President or courts is of course unconstitutional and void. The courts may so declare it, but it has been generally held that the President is confined to the veto to invalidate unconstitutional legis- lation. If an act has been signed by a predecessor, is passed over his veto, or is signed by himself inadvertently, it is held that he must obey it, even though the act is clearly unconstitutional, until such time as the courts may declare it void." This principle is not, however, extended to congressional acts affectimg the inherent powers and the foreign relations powers of the President. Such acts, if encroachments upon presidential powers, even though man- datory in terms and formally valid, have been interpreted as merely advisory and as leaving the President discretion to ignore them. Thus, the President has ignored congressional acts and resolutions prescribing conditions for the removal of administrative officers,^ defining the grades of diplomatic officers,^ directing the negotiation or modification of treaties,^" and formulating foreign policy." 247. Concurrent Powers of the President and the Courts. The power of the President to settle international controversies may, however, overlap the jurisdiction of the courts to settle private controversies. The understanding that the authority taking prior action should govern, has usually been applied in such cases. Thus a German prize crew brought the British vessel Appam into an American port, while the country was neutral. The original owner promptly libelled the vessel in the United States District Court and while the case was pending the German government sought, through the Department of State, to have their claim submitted to arbitration. Secretary Lansing replied in a note of April 7, 1916:^^ "^ Willoughby, op. cit., pp. 1306-1309. 8 As President Johnson's refusal to accept the tenure of office act, for which he was impeached, but not convicted. See also President Cleveland's action in the Duskin case, Presidential Problems, 1904, p. 56, and Parsons v. U. S., 167 U. S. 324. 9 Gushing, Att. Gen., 7 Op. 186 ; supra, sec. 236. i<> Crandall, op. cit., p. 74; supra, sec. 174. 11 Supra, sec. 203. 12 Department of State, White Book, European War, No. 3, p. 344- RELATIONS OF INDEPENDENT DEPARTMENTS. 425 " Moreover, inasmuch as the Appam has been Hbeled in the United States District Court by the alleged owners, this government, under the American system of government in which the judicial and executive branches are en- tirely separate and independent, could not vouch for a continuance of the status quo of the prize during the progress of the arbitration proposed by the Imperial Government. The United States Court, having taken jurisdiction of the vessel, that jurisdiction can only be dissolved by judicial proceedings leading to a decision of the court discharging the case — a procedure which the executive cannot summarily terminate." On this statement two comments may be made. Unquesionably, the President, through the Secretary of State, had power to settle the controversy with Germany by arbitration or otherwise, irrespective of the results of the District Court's decision. The fact that the United States could not vouch for a continuance of the status quo of the vessel was no reason for refusing to arbitrate the interna- tional issue. In the second place, even if constitutional difficulties did prevent the President meeting responsibilities under interna- tional law, such difficulties would not be a valid defense against claims by foreign nations. Foreign nations are entitled to expect satisfaction of their claims through the President, according to the measure of international law alone. However, the case illustrates the operation of the constitutional understanding whereby the Pres- ident refuses to consider controversies already in process of con- sideration by the courts. Conversely, the courts ordinarily refuse to pass on controversies in process of diplomatic settlement. Thus, in the case of Cooper, the Supreme Court was asked to issue a writ of prohibition to restrain the United States District Court of Alaska from enforcing a sentence of forfeiture of a British vessel alleged illegally to have taken seal in American jurisdictional waters fifty-seven miles from shore. Discussion was going on between Great Britain and the Department of State as to whether this point was in American juris- diction and the court expressed the opinion that the President had power to settle the controversy. " If this be so, the application calls upon the court, while negotiations are pending, to decide whether the Government is right or wrong, and to review the action of the political departments upon the question contrary to the settled law in that regard." 42G WRIGHT— UNDERSTANDINGS CONCERNING The court dismissed the suit on finding that there had been no definite facts found as to the place of seizure, but its opinion indicates the feeling that it ought not to prejudice the results of the controversy pending before the Department of State. The court, however, seemed to regard this feeling as an understanding rather than a legal requirement, for it said : ^^ " We are not to be understood, however, as underrating the weight of the argument that in a case involving private rights the court may be obliged, if those rights are dependent upon the construction of acts of Congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically setthng it, or authorizing the Executive to do so, to render judg- ment, since we have no more right to decline the jurisdiction which is given than to usurp that which is not given." This latter power seems to have been exercised in the case of Percy V. Stranahan, where the Supreme Court decided upon the status of Pine Island ofif Cuba, although the matter was and had been for seven years pending in the State Department. Where a decision has actually been given by the political departments on such ques- tions as the limits of jurisdiction, the status of governments and states, etc., the courts follow such decisions implicitly.^* 248. Concurrent Powers of Treaty Pozvcr and Congress. The most notable overlapping of power, however, occurs in the case of Congress and the treaty-making power. Treaties may require the payment of money, establish customs duties, regulate foreign commerce, fix a standard of weights and measures, pro- vide for international postal service and international copyright, provide courts for the trial of seamen on foreign vessels sojourn- ing in the United States, 'define and provide for punishing ofifenses against the law of nations, require the meeting of guarantees by armed force or declaration of war, regulate declarations of war or forbid them in certain circumstances, prohibit the granting of letters of marque and reprisal, make rules concerning captures on land 13 7n re Cooper, 143 U. S. 472; Moore, Digest, i: 744; Willoughby, op. cit., p. lOIO. 1* Percy v. Stranahan, 205 U. S. 257 (1907) ; Jones v. U. S., 137 U. S. 202; supra, sec. 107. RELATIONS OF INDEPENDENT DEPARTMENTS. 427 arid water, limit the size or disposition of military forces, make rules for the conduct of land and naval forces in war, annex or dis- pose of territory, in fact there are very few of the enumerated powers of Congress which have not been the subject of treaty. It has been suggested that the treaty power lacks " constitutional com- petency " to act on these subjects. To this the answer of Calhoun seems adequate : ^^ "If this be the true view of the treaty-making power, it may be truly said that its exercise has been one continual series of habitual and uninter- rupted infringements of the Constitution. From the beginning and through- out the whole existence of the Federal Government it has been exercised constantly on commerce, navigation, and other delegated powers." The court has often recognized this overlapping and considering that acts of Congress " made in pursuance of " the Constitution, and treaties " made under the authority of the United States " are both the supreme law of the land, has regarded them of equal validity and applied the most recent in date in case a conflict is too definite to reconcile.^® Thus, according to the law neither treaty- making power nor Congress is limited by the previous exercises of concurrent power by the other. In practice, however, it has been recognized that Congress ought not to violate treaties at will and that the treaty-making power ought not to altet congressional policies at random. The fact that the President and Senate par- ticipate in both treaty-making and legislation tends to minimize such conflicts, but in some cases they have occurred. Thus the Chinese exclusion acts of 1889 were in conflict with the Burlingame treaty of 1868. Congress, however, has usually refrained from impairing treaties by legislation and if treaties were -found to conflict with proposed legislative policies, has advised the President to negotiate modifications in the treaty. As such negotiation and ratification of the resulting treaty is always discretionary with the President and Senate, the practice means that changes are in fact brought about by concert of Congress and the treaty-making power.^^ 15 Moore, Digest, 5 : 164. 16 Head Money Cases, 112 U. S. 580; Chinese Exclusion Cases, 130 U. S. 58; U. S. V. The Peggy, i Cranch 103. 1'' See La Follette Seaman's Act of 1915 and Jones Merchant Marine Act of 1920, supra, sees. 184, 187. 428 WRIGHT— UNDERSTANDINGS CONCERNING Treaties have very seldom been found to conflict with earlier acts of Congress. Perhaps the only case is a treaty with France of i8oi, which required the return of uncondemned prizes and thereby divested certain captors of their rights to prize money as provided by an earlier act of Congress.^® This is accounted for by two reasons. Many treaties which would affect established legislative policies in such matters as tariffs, commercial regulation, etc., are by their own terms made to depend for effectiveness upon con- gressional acceptance. Most other treaties conflicting with legis- lative policy are held not to be self-executing and consequently can- not be carried into effect until Congress acts. This is true of treaties requiring an appropriation, a declaration of war, criminal punishment, etc. The obligation of Congress to pass such legis- lation will be considered later. However, whichever reason applies, the treaty power does not in practice modify existing acts of Congress without the consent of Congress. B. Cooperation of Independent Organs. 249. Constitutional Understanding Respecting the Cooperation of Independent Organs. The difficulty which arises from the frequent need of coopera- tion between independent and coordinate departments in carrying out the powers of the national government is met by a constitu- tional understanding which may be stated in the following words : Where action contemplated by any independent department re- quires the cooperation of another independent department for its carrying out, the advice of that department ought to be sought before the action is taken, but where such action has already been taken the department whose cooperation is required ought to per- form the necessary acts even though its advice had not been asked or if asked had not been followed. " Whenever," reported the Senate Foreign Relations Committee, " af- firmative action of either the executive or the legislative branch of the gov- 18 U. S. V. The Peggy, i Cranch 103. See also La Ninfa, 75 Fed. 513, applying the avi^ard of the Behring Sea Arbitration based on treaty and op- posed to the earlier interpretation of an act of Congress ; and also application of most-favored-nation clause in Swiss treaty of 1850 in 1898, supra, sec. 154. RELATIONS OF INDEPENDENT DEPARTMENTS. 429 ernment may involve a call upon the assistance of the other, the branch about to take action should, if possible, first obtain indications of the other's desires." ^^ " It is a general principle," says Finley-Sanderson, " that any valid act done by either the legislative, executive or judicial branches of the govern- ment is binding upon each of the others, and is not subject to be set aside by either of them." ^o Each department of the national government may exercise powers which will require the cooperation of one or more of the other departments in carrying out. Such acts by the courts, the President. Congress and the treaty-making power will be considered in succession. 250. Decisions by the Courts. Most decisions of the Federal Courts will be ineffective unless the President enforces them. Undoubtedly to so enforce them is a legal obligation of the President under his duty " to take care that the laws be faithfully executed " and an attitude such as that taken by President Jackson when he remarked : " John Marshall has made his decision, now let him enforce it " is a violation of his oath to the Constitution. ^^ He has no independent discretion as to whether the court's decision was really a correct interpretation of the Constitution and law. There is in this case no duty on the part of the court to consider the President's probable attitude before making its decision. On the contrary, the court ought to apply the law impartially and irrespective of the views of the political organs of government. Decisions of the Supreme Court which involve an interpreta- tion of the Constitution, statutes, treaties or other laws of the United States form precedents which by constitutional understand- ing ought to be followed in future cases by all organs of the gov- ernment. The political organs of the government in performing acts within their discretionary powers may exercise independent judgment as to the meaning of the Constitution, laws and treaties. 19 Sen. Doc. 56, 54th Cong., 2d sess., p. 5- See also Hill, Present Prob- lems in Foreign Policy, 1919, p. 171, and infra, sec. 256. 20 Finley-Sanderson, The Executive, p. 217; Wright, Am. Jl. Int. Law, 12: 94; supra, sec. 6g. -1 Sumner's Jackson, p. 227. 430 WRIGHT— UNDERSTANDINGS CONCERNING Thus, Congressmen and Senators would not be violating their oaths to support the Constitution if, honestly believing the decision erro- neous, they repassed a statute which had just been declared un- constitutional nor would the President if he signed it. Likewise the treaty power and the President are not legally bound to fol- low judicial decisions as to the scope of their powers in conducting foreign relations and as we have seen foreign nations are entitled to regard the statements of the President on the subject as practi- cally authoritative. However, it is believed that the other organs of government ought to regard the interpretation of law by the Supreme Court as final and to be departed from only in extreme cases. ^^ But adherence to this understanding implies acceptance by the court of its converse, namely, that in making decisions on constitutional questions affecting the competence of independent organs, the court must carefully weigh the opinions of these de- partments and follow them if possible. This understanding has been accepted by the court in its repeated assertion that it will hold the view of the political departments, as evidenced through the formal conclusion of a statute or treaty, in the highest respect and will not regard such acts as unconstitutional unless the case is clear.^^ 251. Acts of the President. The President, as well as the courts, may need the cooperation of other organs in order to make his acts effective. In the per- formance of political acts within his power, the courts have con- sidered themselves bound to give effect to his decisions. Thus the courts have held themselves bound to give effect to his decisions as to which of two contending governments in a state of the Union is legitimate, as to whether the government in a state is republican in form, as to the extent of American territory, as to the existence of a contingency requiring a calling forth of the militia, as to the existence of civil war in the United States, as to the condition of 22 The President and Congress may, of course, adhere to stricter canons of constitutional interpretation than the court. Wright, Col. L. R., 20: 140; Willoughby, op. cit., p. 1306; Taft, op. cit., p. 136; Finley-Sanderson, op. cit., p. 218; Cushman, Minn. Law Rev., 4: 275. 23 Willoughby, op. cit., p. 20. RELATIONS OF INDEPENDENT DEPARTMENTS. 431 belligerency or neutrality of the United States, as to the status of foreign governments and their representatives, as to the extent of territory of foreign states, as to the existence of insurgency, civil war or international war abroad, and as to the settlement of claims of American citizens upon foreign governments. In giving effect to such political decisions the court has usually grouped the Pres- ident and Congress together as the " political department of the government " and has not often discussed the relative competence of each in such matters.^* Unquestionably, it might do so, and could properly refuse to follow a political decision of the President if on a subject beyond his competence. Thus in his dissent in the prize cases,-^ Justice Nelson, supported by three colleagues, was unwilling to accept the President's proclamation of blockade as the initiation of civil war, holding that the power to declare the existence of war, even civil war, was confined to Congress. The majority, however, thought themselves bound by the political decision of the President. The courts also consider themselves bound to apply executive orders of the President, if made under legal authority, in the same manner as acts of Congress."*' On the other hand, if acts of the President require for their carrying out cooperation by Congress or by the treaty-making power, the obligation of these organs is founded not upon law but upon a constitutional understanding. The President may make executive agreements which require action by Congress. Such was that by which Great Britain ceded Reef Island in Lake Erie on condition that the United States would erect a lighthouse thereon ; that providing for the administration of San Domingan customs houses ; and that providing for reciprocity with Canada. So also the President may make agreements requiring action by the treaty- making power. Such were the preliminaries of peace with Spain in 1898 and with Germany in 1918. Such also were protocols with Costa Rica and Nicaragua looking toward the conclusion of treaties providing for the construction of a Trans-Isthmian Canal. 2* Supra, sec. 107. 25 The Prize Cases, 2 Black 635, 690. 26 Goodnow, op. cit., p. 85. 432 WRIGHT— UNDERSTANDINGS CONCERNING Though Congress and the treaty-making power ought to give effect to such agreements if made within the President's power, it unquestionably is within their legal power to refuse. Such exec- utive agreements are not supreme law of the land. Consequently before making such agreements the President ought to get the advice of these bodies if possible.-" Draft treaties negotiated by the President are of even less obli- gation than such executive agreements, and experience has shown that the Senate does not hesitate to reject or amend them.^* Con- sequently it is especially important that the President keep him- self informed of the attitude of that body during the course of negotiation and conform his policy thereto.-^ The conduct of diplomatic negotiations by the President and the employment of troops for defense of American citizens abroad or defense of the territory may easily lead to military undertak- ings which will require either congressional appropriations or a declaration of war. Thus all so-called declarations of war by Congress have in fact been declarations of the " existence of war " and the act of Congress of July 13, 1861, was a ratification of the proclamation of the President of April 19, 1861, which was held to have signified the actual beginning of war.^° Doubtless, in each of these cases Congress was under a practical, though not a legal obligation to carry out the undertaking begun by the President, and unquestionably in such undertakings the President ought to keep himself informed of and give due consideration to the opinion of Congress. ^^ The same is true of acts under the President's authority as Commander-in-Chief in time of war. Seizures of property under military necessity in occupied areas by way of requisition and con- tribution require subsequent compensation according to the law of war. Also the emancipation proclamation, if indeed it was within the President's power at all, certainly required action by Congress, if not the amending power, to remain effective after the war. 27 Supra, sees. 166, 169, 170, 172. 28 Supra, sec. 177. ^^ Supra, sec. 176; infra, sec. 266, par. 4. 30 The Prize Cases, 2 Black 635, and supra, sec. 208. 31 Supra, sec. 209. RELATIONS OF INDEPENDENT DEPARTMENTS. 433 After the Civil War Congress actually provided for compensation in certain cases or seizure and the amending power passed the thirteenth amendment abolishing slavery .^- 252. Acts of Congress. Congress when acting within its powers makes laws which legally bind the courts and the President. The courts, as the official inter- preters of the Constitution, may examine the competence of Congress and refuse to apply unconstitutional statutes. The Pres- ident, in his capacity as head of the national administration, has not even this power."^ While acting as the representative organ of the government in foreign relations, however, he has an inde- pendent constitutional position, and is not subject to the direction of Congress. Treaties are on a par with acts of Congress, conse- quently while conducting negotiations with a view to treaty mak- ing, the President is not bound to follow resolutions or directions of Congress even though mandatory in terms. As a matter of con- stitutional understanding Congress ought not to pass such resolu- tions except with the consent of the President, and it has usually followed this understanding. If such resolutions are passed, doubt- less the President ought to follow them as a matter of constitutional understanding, and he usually has. However, he is the judge of the considerations which are likely to make negotiations successful and retains his discretion in spite of congressional directions.^* 253. Acts of the Treaty-Making Power. Obligation of the Courts. The obligation of organs of government to aid in the carrying out of the undertakings of coordinate organs has been most dis- cussed in connection with the execution of treaties. Treaties if self-executing are of the same legal effect as acts of Congress and bind the President and the courts in the same manner. The latter may declare a treaty unconstitutional and void, but has never done so. The treaty-making power covers a broader field than does the power of Congress since it is given in full to the national govern- ment while the legislative power is divided between national and ^- Supra, sees. 216-218. 33 Supra, sec. 246. 3* Supra, sees. 203, 246. 434 WRIGHT— UNDERSTANDINGS CONCERNING state governments. Apparently the only ground on which a treaty could be declared void would be that it dealt with a subject not proper for international negotiation, a limitation so vague as to be hardly capable of judicial application, or that it violated an express or implied prohibition of the constitution.^^ Since a declaration of unconstitutionality based on constitutional prohibitions would not or- dinarily relieve the United States of international responsibility, the courts have always attempted, heretofore with success, to reconcile doubtful treaty provisions with the Constitution.'^ The courts cannot consider voidable treaties void until the political departments have acted. Thus, the Supreme Court required the extradition of an American citizen to Italy under the treaty of 1871 even though Italy had repeatedly violated the treaty by refusing to extradite Italian citizens wanted by the United States. For the courts a treaty is law from the date of its proclamation by the President until announcement of its termination by the political departments of the government, or its supercession by a conflicting treaty or act of Congress. ^'^ 254. Acts of the Treaty-Making Power: Obligation of the Pres- ident. The President is legally bound by treaties the same as by acts of Congress, whether they have been made by himself or his prodeces- sors. He cannot modify them by agreements with the other party without ratification by two-thirds of the Senate, though precedents indicate that he may upon his own authority terminate them by denunciation under the terms of the treaty itself .^^ In case the treaty directs the President in such political matters as the negotia- tion of another treaty, or the urging upon Congress or the States of legislation, he retains his discretion and is constitutionally com- petent to ignore such directions, though by an understanding of the Constitution he ought to make honest efl^orts to carry out the treaty. 35 Supra, sees. 67, 68, 173. 3^ Supra, sec. 31. 3'^ Supra, sec. 182 et scq. ^^ Supra, sees. 172, 186. RELATIONS OF INDEPENDENT DEPARTMENTS. 435 255. Obligation of the Treaty-Making Power Itself as to Future Action. The treaty power cannot bind its own future action. Clearly it can repeal one treaty by negotiating a new one with the same party. But if it concluded a conflicting treaty with a different party, a more complicated situation arises. Under constitutional law, unquestionably the more recent treaty prevails though the courts ought to reconcile the two treaties by interpretation if pos- sible. Under international law, however, the older treaty prevails on the theory that a treaty violative of the rights of an innocent third party is against the policy of international law. Therefore, although the treaty power is not legally bound to respect its earlier treaties, it ought to do so. The obligation is an understanding which has generally been observed. The Jay treaty with Great Britain in 1794 was alleged to violate certain provisions of the French treaty of 1778; and the Panama treaty of 1903 was alleged to violate provisions of the Hay-Pauncefote treaty with Great Britain of 1901, but they were not clearly proved to do so.^" Treaties may require subsequent action by the treaty-making power to give them effect. Such is the case with certain general arbitration treaties which require the conclusion of a special treaty or compromis for submission of each particular controversy coming under the general arbitration treaty. Such would also be true of the treaty of Versailles, which urges the conclusion of treaties upon such subjects as the maintenance of fair labor conditions, the maintenance of freedom of communications and transit, the pre- vention and control of disease, etc. Such provisions as this do not legally bind the treaty-making power, but undoubtedly the President and Senate ought to make due eft'orts to conclude such treaties when the occasion arises. 256. Acts of the Treaty-Making Powers: Obligation of Congress. Treaties may require action by Congress to give them effect. Where executive and judicial action alone is sufficient to give treaties effect they are said to be " self-executing," but an exact dis- 39 Wright, Conflicts between International Law and Treaties, Am. Jl. Int. Law, II : 57^579- PROG. AMER. PHTL., SOC. , VOL. LX., CC, MARCH I5, I922. 436 WRIGHT— UNDERSTANDINGS CONCERNING tinction between those treaty provisions which become ex propria z'igore the supreme law of the land and those which require legis- lative action is not clear. In Foster v. Neilson (1829), Chief Justice Marshall thought the provision of the Florida cession treaty that grants of land made in Florida prior to January 24, 1818 " shall be ratified and confirmed " was not self-executing and that the courts could not recognize such titles until Congress had acted. Subsequently an examination of the Spanish text of the treaty showed that the phrase should have read " shall remain ratified and affirmed" and in United States v. Perchem.an (1833) Chief Justice Marshall held that this rendered the clause self-executing, support- ing his decision also on principles of general international law.*" However, there are many acts which the treaty power cannot itself perform or the performance of which it cannot authorize by any organ other than Congress, yet Congress is under a certain obliga- tion to perform them itself when necessary for carrying out a treaty. The obligation may seem absolute in view of the statement of Article VI that treaties are the supreme law of the land, but in practice, and in view of the equal constitutional power of Congress itself to make supreme law superseding treaties, the constitutional duty of Congress must be considered as an under- standing of the Constitution, rather than a law.^^ Practice indicates that treaty provisions dealing with matters which for historical and practical reasons have been placed by the Constitution peculiarly within legislative competence,^^ require *o Foster v. Neilson, 2 Pet. 253 (1829); U. S. v. Percheman, 7 Pet. 51 (1833) ; see also supra, sec. 137. 41 Hamilton, however, wrote in a draft for Washington's message to the House of Representatives on the Jay treaty : " The House of Representatives have no moral power to refuse the execution of a treaty which is not con- trary to the Constitution, because it pledges the public faith; and have no legal power to refuse its execution, because it is a law, until at least it ceases to be a law by a regular act of revocation of the competent authority." Works, Hamilton ed., 7: 566. *2 The Constitution not only gives the financial powers to Congress, but it gives them especially to the House of Representatives. The terminology of Art. I, sec. 7, cl. i, and sec. 9, cl. 7, is a different sort of delegation from the powers given by Art. i, sec. 8. This is a recognition of the historical connection between control of the purse and the rise of the House of Com- mons in England. See the Federalist No. 58; Magoon, Reports, p. 151. RELATIONS OF INDEPENDENT DEPARTMENTS. 437 congressional cooperation for their execution. Of this character are treaty provisions deaHngs with finances, whether (i) requiring appropriations of money, or (2) altering revenue laws and com- mercial regulations. While even in these cases Congress ought to act so as to give effect to a ratifed treaty, yet the treaty-making power is under an equal obligation to consider, in connection with its view of international policy, the views on domestic policy of Congress, before finally ratifying the instrument. In these matters foreign and domestic policy are connected with extraordinary in- timacy, and a complete collaboration of the treaty power and the legislative power is appropriate. An opportunity for Congress to pass upon treaties of this character before ratification would seem generally expedient though not legally necessary.*^ Other treaty provisions require for their performance detailed supplementary' legislation or specific acts which the Constitution directs to be performed by Congress. In this category are treaty provisions requiring (3) the incorporation and administration of territory/* (4) the organization of courts and creation of offices and (5) a declaration of war in certain contingencies, or abstention from war.*^ In these cases Congress is bound to act and carry out in good faith the obligations which the treaty power has undertaken. *3 The objection brought in the Federal Convention of 1787 against such submission to Congress, that it would make secrecy impossible (Farrand, op. cit., 2: 538), would probably have less weight at present. See also supra, sees. 59, 149, 154. Sir Cecil Hurst reported to the 6th committee of the First Assembly of the League of Nations that " at the time when the convention of Saint Germain (for control of arms trade) was drawn up it was realized that in certain countries the complete execution of its provisions might necessitate legislation " (First Assembly Document, No. 199) and the Tem- porary Mixed Commission on Armaments attributed the failure of the United States to ratify this convention to the failure of Congress to pass the neces- sary legislation (Second Assembly Document, No. 81, p. 15). Congres.s failed to respond to the President's request for legislation in execution of similar provisions of the Brussels act of 1890. (Moore, Digest, 2: 468-474.) Supra, sec. 118. ** The terminology of Art. 4, sec. 3. cl. 2, indicates that the power is supplementary in character. *' That the power of Congress to declare war is directory, rather than a peculiar congressional prerogative, is indicated by the incorporation in the same clause of the power to " make rules concerning captures," which is clearly shared with the treaty power. Supra, sec. 151. 438 WRIGHT— UNDERSTANDINGS CONCERNING These matters are ones upon which a proper decision might be expected from a comprehensive view of international relations, and hence the treaty power enjoys a greater freedom of action than in those of the former category. Another class of treaty provisions are by nature self-executing, but because of historical traditions and constitutional interpreta- tion, require legislation to be executable. Here are included treaties (6) defining crimes and extending criminal jurisdiction. The com- mon law has been traditionally assiduous in protecting the individual against arbitrary criminal punishment, and this spirit, especially in reference to criminal procedure, has been embodied in Article 3, Section 2, Clause 3, the Fifth and Sixth Amendments, but federal courts are not denied a general criminal jurisdiction by any specific clause of the Constitution, and in some earlv cases they actually assumed jurisdiction of crimes defined by customary international law. This view has, however, changed, and it is now held that the criminal jurisdiction of federal courts it entirely statutory.*'' Hence, treaty crimes must be incorporated in acts of Congress be- fore they become cognizable in federal courts.^" In general it may be said that where the cooperation of Congress is necessary to carry out a treaty, Congress ought to act, exercising discretion only as to the means most suitable for attaining the ends contemplated by the treaty, and the duty is none the less binding in international law and constitutional understanding from the fact that the Constitution furnishes no power to compel it. The entire system of the Constitution demands that each department accept in good faith and cooperate in carrying out the undertaking of the other departments. But such cooperation cannot be relied upon 46 Supra, sees. 128, 129. 4'^ Congress has passed laws giving courts jurisdiction over many ofifenses against international law, supra, sees. 1 12-122. Although State courts must regard treaties as the supreme law of the land, they appear to be excluded from jurisdiction of treaty crimes by the Judicial Code, sec. 256, cl. i, which gives the Federal courts exclusive jurisdiction " of all crimes cognizable under the authority of the United States." A treaty crime would probably be con- sidered in this category, even if, because of the failure of Congress to act, the Federal courts could not exercise jurisdiction. INSTRUMENTALITIES FOR FOREIGN RELATIONS. 439 unless the treaty power has given due consideration to the attitude of Congress before making the commitment. " There is force, no doubt," says David Jayne Hill, " in the contention that the Congress of the United States is under a moral obligation to main- tain the honor of the nation, which implies the strict fulfillment of all pledges made by the treaty-making power, but there is even more weight in the affirmation that the treaty-making power is under a moral obligation not to pledge the honor of the nation in doubtful conditions, as well as under a legal obligation not to destroy the freedom of a coordinate branch of the government by pledging it to a performance beyond the intentions of the Constitution from which all its authority is derived." *s C. Duty of the Departments to Act. 257. Constitutional Understanding Respecting the Establishment of Necessary Instrumentalities. The difficulty which arises from the lack of constitutional instru- mentalities for meeting all international responsibilities is met in part by the legal duty of the President " to take care that the laws be faithfully executed " and in part by an understanding requiring Congress to supply the instrumentalities necessary for meeting inter- national responsibilities. Story pointed out that Congress was under an obligation to establish inferior federal courts in order to carry out the purposes of the Constitution.^^ ^8 Hill, Present Problems in Foreign Policy, 1919. p. 171. Secretary of State Hughes has spoken to the same effect : " The extent to which Congress would regard itself as bound, as a matter of good faith, to enact legislation for the purpose of carrying out treaties has been the subject of debate, from time to time, since the days of Washington. Despite these debates, and not- withstanding its power to frustrate the carrying out of treaties. Congress in a host of instances has passed the necessary legislation to give them effect; and the disposition has frequently been manifested to avoid any basis for the charge of bad faith through a disregard of treaty stipulations. . . . Foreign nations might be expected to take the view that they were not concerned with our internal arrangements, and that it was the obligation of the United States to see that the action claimed to have been agreed upon was taken. If that action was not taken, although Congress refused to act because it believed it was entitled to refuse, we should still be regarded as guilty of a breach of faith. It is a very serious matter for the treaty-making power to enter into an engagement calling for action by Congress unless there is every reason to believe that Congress will' act accordingly." (Address in New York, March 26, 1919, on the League of Nations Covenant, International Conciliation, Special Bulletin, April, 1919, pp. 689-691.) See also supra, sec. 39. 49 Martin v. Hunter, i Wheat. 304 (1816). 440 WRIGHT— UNDERSTANDINGS CONCERNING " If Congress may lawfully omit to establish inferior courts, it might follow that in some of the enumerated cases the judicial power could no- where exist. . . . Congress is bound to create some inferior courts, in which to vest all that jurisdiction which, under the Constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance." We have noticed that Congress, under the necessary and proper clause, has power to provide for meeting international responsibil- ities.^*' It is believed that it is under a constitutional duty to exer- cise these powers. 258. Duty of All Organs to Aid in Meeting International Respon- sibilities. The traditional conceptions of American statesmen has been that all organs of government were bound to aid in the meeting of inter- national responsibilities. " The statesmen and jurists of the United States," says Sir Henry Maine, "' do not regard international law as having become binding on their country through the intervention of any legislature. They do not believe it to be of the nature of immemorial usage of which the memory of man runneth not to the contrary. They look upon its rules as a main part of the conditions on "which a state is originally received into the family of civilized nations. . . . If they put it in another way, it would probably be that the state which dis- claims the authority of international law places herself outside the circle of civilized nations." ^^ In accordance with this conception of international law, Duponceau has written : ^- " The law of nations is to be carried into effect at all times under the penalty of being thrown out of the pale of civilization or involving the coun- try in war. Every branch of the national administration, each within its district and its particular jurisdiction, is bound to administer it. . . . Whether there is or not a national common law in other respects, this universal com- mon law can never cease to be the rule of executive and judicial proceedings until mankind shall return to the savage state." The exercise by each organ of all constitutional powers necessary to assure the meeting of international responsibilities is a constitu- "•^ Supra, sec. 225. 51 Maine Int. Law, p. 37, supra, sec. 33. 52 Duponceau, op. cit., p. 3. INSTRUMENTALITIES FOR FOREIGN RELATIONS.' 441 tional understanding which each organ of the government ought to observe. The United States has insisted upon this principle in its dealings with other nations.^^ Foreign nations have diplomatically and judicially asserted it.'^ The Senate, the courts, the President and text writers have maintained it at different times." It is diffi- cult to see on what other principle the meeting of international re- sponsibilities in good faith can be assured in a government of divided powers, and if these responsibilities are not met it would seem that the objects of the Constitution as stated in its preamble to which all officers of the government are pledged under oath would be in peril. Organs of government, says Pillet, must observe the more fundamental obligations of international law " on penalty of expos- ing the state to a responsibility which may paralyze its sovereignty and put obstacles to the reign of its national law." ^'^ CHAPTER XIX. The Control of Foreign Relations in Practice. 259. TJie Position of the President. Our study of the international and constitutional law governing the conduct of foreign relations has brought out two facts. First, that the President is the dominating figure. As the representative authority under international law and as the authority with ex- clusive power under constitutional law to communicate with foreign nations he has the initiative in conducting foreign affairs. No less significant, however, is the fact that the President does not have con- stitutional power to perform many acts essential to a proper con- ducting of foreign relations. ^Nlany of these powers are vested in other departments of the government, coordinate with the Presi- dent. In such cases he is obliged to rely on persuasion and the =3 Mr. Livingston, Sec. of State, to Mr. Serrurier, June 3, 1833, Wharton, 2: 67. 5* French Conseil d'Etat, Dalloz, Juris. Gen., Rept. t. 42, s. v. Traite Int., No. 131, Wright, Avi. Jl. Int. Law, 12: 94. ^^ Supra, sees. 11, 39, 69. 56 Pillet, Rev. Gen. de Droit hit. Pub., 5: 87. 442 WRIGHT— CONTROL OF FOREIGN RELATIONS. operation of understandings of the Constitution in order to carry out foreign policies successfully, and to meet international respon- sibilities. Has this proved a practically effective system for con- ducting foreign relations? 260. Friction in the American System. That it has often developed friction is unquestionable. "A treaty entering the Senate," wrote John Hay, " is like a bull going into the arena ; no one can say just how or when the final blow will fall — but one thing is certain, it will never leave the arena alive." ^ When the Secretary of State put this in his diary he had seen seven- teen treaties borne from the Senate lifeless or so mutilated by amend- ments that they could not survive. We can pardon his earlier state- ment : " The fact that a treaty gives to this country a great, lasting advantage seems to weigh nothing whatever in the minds of about half the Senators. Personal interest, personal spites, and a con- tingent chance of petty political advantage are the only motives that cut any ice at present."- Numerous illustrations of strained relations between the Executive and the Legislature at Washington might be cited. Thus in " The Education," Henry Adams records the reply of a cabinet officer to his plea for patience and tact in dealing with Congress : " You can't use tact with a Congressman ! A Congressman is a hog ! You must take a stick and hit him on the snout." ^ Going back even farther we find in John Quincy Adams's Diary comment on a very early incident : * " Mr. Crawford told twice over the story of President Washington's having at an early period of his administration gone to the Senate with a project of a treaty to be negotiated, and been present at their deUberations upon it. They debated it and proposed alterations so that when Wasliington left the Senate Chamber he said he would be damned if he ever went there again. And ever since that time treaties have been negotiated by the Executive before submitting them to the consideration of the Senate." 1 Thayer. The Life of John Hay, 2 : 393. 2 Ibid., 2: 274. 3 The Education of Henry Adams, 1918, p. 261. * Memoirs, 6: 427. WRIGHT— CONTROL OF FOREIGN RELATIONS. 443 Senator Maclay, who was present at the time, records the same iti- cident in his journal on August 22, 1789.^ " I cannot now be mistaken. The President wishes to tread on the necks of the Senate. . . . Ha wishes us to see with the eyes and hear with the ears of his Secretary only. The Secretary to advance the premises, the President to draw the conclusions, and to bear down our deliberations with his personal authority and presence. Form only will be left to us." 261. Criticisms of the American System. The prevalence of such incidents suggests that the difficulties which arose between President Wilson and the Senate in consider- ing the Peace Treaty of Versailles were not wholly due to person- alities. It suggests that institutions may have been partly to blame. Indeed, Viscount Grey, in his letter to the Times of January 31, 1920, said that the American Constitution "not only makes possible, but, under certain conditions, renders inevitable conflict between the Executive and the Legislature." American commentators have often deplored .this situation. Frequently they have urged reform, usually in the direction of the British cabinet system, but their attention has been centered upon domestic affairs. It is an extraordinary fact that, with respect to the control of foreign affairs, the reverse is true. British writers have looked hopefully to the United States as a model for reform. Thus, in his American Commonwealth, Lord Bryce says : ^ " The day may come when in England the question of limiting the present all but unlimited discretion of the executive in foreign afifairs will have to be dealt with, and the example of the American Senate will then deserve and receive careful study." This opinion has been acted upon, and features of the American system have been endorsed by the British union for democratic con- trol of foreign relations founded in 1914.^ 5 Journal of William Maclay, N. Y., 1890, p. 132. 8 American Commonwealth, 2d ed., p. 104. '' " The Morrow of the War," first pamphlet issued by the Union of Democratic Control, 1914, printed in Ponsonby, Democracy and Diplomacy, London, 1915, p. 21. 444 WRIGHT— CONTROL OF FOREIGN RELATIONS. 262. Need of Popular Control in Foreign Relations. Two things seem to be needed in an institution designed to con- duct foreign relations with success — concentration, or the abihty to act rapidly and finally in an emergency, and popular control giving assurance that permanent obligations will accord with the interests of the nation. The subordination of national interests tO' dynastic and personal ends, prominent in sixteenth and seventeenth century diplomacy, showed the vice of an irresponsible concentration of power. The natural remedy seems to be parliamentary participa- tion in treaty-making and war-making and this has in part been provided for in most continental European Constitutions during the nineteenth and twentieth centuries.^ In England alone, the Crown preserves its ancient prerogative in these matters and although in practice Parliament is sometimes consulted before ratification of important treaties. Lord Bryce and others have urged a more certain method of popular control, suggesting study of the American proc- ess of Senate participation.^ But why labor the point ! Democracy is convinced of the merits of democratic diplomacy. There is greater need to emphasize the importance of concentration. 263. Need of Concentration of Authority. This need of concentration of power for the successful conduct of foreign afifairs was dwelt upon in the works of John Locke,^° Montesquieu,^^ and Blackstone,^- the political Bibles of the consti- 8 See Myers, Legislatures and Foreign Relations, Am. Pol. Sci. Rev., 11: 643 et seq. (Nov., 1917), and British report on Treatment of Inter- national Questions in Foreign Governments, Pari. Pap., Misc. No. 5 (1912), Cd. 6102, printed in Appdx. II, Ponsonby, Democracy and Diplomacy, p. 128 et seq., and Heatley, Diplomacy and the Study of Foreign Relations, 1919, p. 270 ct seq. See also Methods and Procedure in Foreign Countries Relative to the Ratification of Treaties, 66th Cong., 1st Sess., Sen. Doc. 26. ^ Supra, notes 6, 7. For relations of Crown and Parliament in treaty- making in England, see Anson, Law and Custom of the Constitution, 3d ed., II, pt. 2, p. 103 et seq. 10 Supra, sec. 83. 11 " By the (executive power, the prince or magistrate) makes peace or war, sends or receives embassies, establishes the public security, and pro- vides against invasions. . . . The Executive power ought to be in the hands of a monarch ; because this branch of government which has always WRIGHT— CONTROL OF FOREIGN RELATIONS. 445 tutional fathers. It was emphasized by many speakers in the federal convention/^ by the authors of the FederaHst/* and by President Washington in his message on the Jay treaty .^^ The same opinion was restated by De Tocqueville, who, because he doubted the abihty of democracy to achieve this concentration, doubted its capacity to cope with foreign affairs. need of expedition is better administered by one than by many; whereas, whatever depends on the legislative power is oftentimes better regulated by many than by a single person. But if there was no monarch, and the executive power was committed to a certain number of persons selected from the legislative body, there would be an end of liberty ; by reason the two pow- ers would be united, as the same persons would actually sometimes have, and would moreover always be able to have, a share in both." (Montesquieu, L'Esprit des lois, 1. xi, c. 6, ed. Philadelphia, 1802, i : 181, 186.) 12 " With regard to foreign concerns, the king is the delegate or repre- sentative of his people. It is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with an- other community equally numerous as themselves. Unanimity must be want- ing to their measures, and strength to the execution of their counsels. In the king, therefore, as in a centre, all the rays of his people are united, and form by that imion a consistency, splendor, and power that make him feared and respected by foreign potentates ; who would scruple to enter into any engagement that must afterwards be revised and ratified by a popu- lar assembly. What is done by the royal authority, with regard to foreign powers, is the act of the whole nation; what is done without the king's con- currence is the act only of private men." (Blackstone, Commentaries, i: 252.) 13 See remarks by Hamilton and Gouverneur Morris, Farrand, op. cit., I : 290, 513. 1* " It seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate dispatch are sometimes requisite. There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehension of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives ; and there doubtless are many of both de- scriptions who would rely on the secrecy of the President, but' who would not confide in that of the Senate, and still less in that of a large popular assembly. The convention have done well, therefore, in so disposing of the power of making treaties that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest. " They who have turned their attention to the affairs of men must have perceived that there are tides in them ; tides very irregular in their duration, strength and direction and seldom found to run twice exactly in the same 446 WRIGHT— CONTROL OF FOREIGN RELATIONS. But lest the apologist of the "Ancient Regime" be thought biased, let us hear a recent writer of a different school. Mr. Walter Lippmann thus discusses the uses of a king : ^' " As for myself," he said, " I have no hesitation in avowing my con- viction, that it is more especially in the conduct of foreign relations that democratic governments appear to me to be decidedly inferior to govern- ments carried on upon different principles. Foreign politics demand scarcely any of those qualities which a democracy possesses, and they require on the contrary the perfect use of almost all those faculties in which it is de- ficient. . . . Democracy is unable to regulate the details of an important undertaking, to persevere in a design, and to work out its execution in the presence of serious obstacles. It cannot combine its measures with secrecy and it will not await their consequences with patience. These are qualities which more especially belong to an individual or to an aristocracy and they are precisely the means by which an individual people attains to a predominant position." i^ manner or measure. To discern and to profit by these tides in national af- fairs is the business of those who preside over them ; and they who have had much experience on this can inform us that there frequently are occasions when days, nay, even when hours, are precious. ... So often and so essen- tially have we heretofore suffered from the want of secrecy and dispatch that the Constitution would have been inexcusably defective if no attention had been paid to those objects. Those matters which in negotiations usually re- quire the most secrecy and the most dispatch are those preparatory and auxiliary measures which are not otherwise important in a national view than as they tend to facilitate the attainment of the objects of negotiation. For these the President will find no difficulty to provide ; and should any cir- cumstance occur which requires the advice and consent of the Senate, he may at any time convene them." (The Federalist, Jay, No. 64, Ford, ed., pp. 429-430.) . See also Hamilton, No. 70, Ford, ed., p. 467. 15 " The nature of foreign negotiations requires caution and their suc- cess must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic ; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a small number of members." (Washington's Message to the House of Representatives, March 30, 1796, Richardson, op. cit., p. 194.) 1^ Democracy in America, N. Y., 1862, i : 254. 1' The Stakes of Diplomacy, 2d ed., 1917, pp. 26, 29. See also remarks of Senator Spooner, of Wis., in Senate, January 23, 1906: "The conduct of our foreign relations is a function which requires quick initiative, and the Senate is often in vacation. It is a power that requires celerity. One course WRIGHT— CONTROL OF FOREIGN RELATIONS. 447 " The reason why we trust one man, rather than many, is because one man can negotiate and many men can't. Two masses of people have no way of dealing with each other. . . . The American people cannot all seize the same pen and indite a note to sixty-five million people living within the German Empire. . . . The very qualities which are needed for negoti- ation— quickness of mind, direct contact, adaptiveness, invention, the right proportion of give and take — are the very qualities which masses of people do not possess." 264. Practice in American History. As practice is the best evidence of what Constitutions are, so history is the best evidence of what institutions must become, if they are to perform their functions. " Even democratic countries Hke France and England," says Bryce, " are forced to leave foreign afifairs to a far greater degree than home afit'airs to the discretion of the ministry of the day." ^^ The Greek city states in which diplo- macy by mass meeting led to disaster when confronted by the as- tuteness of Philip of Macedon are the exception which proves the rule.^^ Thus, in the United States when foreign problems have come to the front, concentrated authority has been developed to cope with them. In the first period from 1789 to 1829 foreign relations were complex. Presidents were chosen because of their experience in diplomacy, and they displayed competence and leadership. There was friction but in all cases until the last, — John Quincy Adams's policy with reference to the Panama congress, — the President's pol- icy prevailed. In the second period which extended from 1829 to 1898 our problems were mainly domestic. In these Congress as- sumed a leadership and though Presidents continued to assert their prerogative in foreign afifairs, opportunities were only occasional and defeats were frequent. Presidents were chosen for political of action may be demanded tonight, another in the morning. It requires also secrecy; and that element is not omitted by the commentators on the Constitution as having been deemed by the framers of the most vital im- portance. It is too obvious to make elaboration pardonable." {Cong. Rec, 40: 1420; quoted Corwin, op. cif., p. 176.) See also Sen. Doc. No. 56, S4th Cong., 2d Sess., pp. 6-18; Reinsch, World Politics, 1900, p. 334; Heatley, op. cit., p. 71. 18 American Commonwealth, 2d ed., i : 218. See also Reinsch, World Politics, p. 329. ^^ Ibid., 1 : 217. 448 WRIGHT— CONTROL OF FOREIGN RELATIONS. availability, not for ability or experience, and the Senate's power of vetoing treaties was strengthened by frequent exercise. In his "Congressional Government," presented as a doctor's thesis in 1885, Woodrow Wilson generalized the progress of this period as fol- lows : ^° " In so far as the President is an executive officer he is the servant of Congress ; and the members of the Cabinent, being confined to executive functions, are altogether the servants of Congress. " Party government can exist only when the absolute control of ad- ministration, the appointment of its officers as well as the direction of its means and policy is given immediately into the hands of that branch of the government whose power is paramount, the representative body. " No one, I take it for granted, is disposed to disallow the principle that the representatives of the people are the proper ultimate authority in all matters of government and that administration is merely the clerical part of government. Legislation is the originating force. It determines what shall be done ; and the President, if he cannot or will not stay legislation by the use of his extraordinary power as a branch of the legislature, is plainly bound in duty to render unquestioning obedience to Congress. . . . The principle is without drawback and is inseparably of a piece with all Anglo- Saxon usage ; the difficulty, if there be any, must lie in the choice of means whereby to energize the principle. The natural means would seem to be the right on the part of the representative body to have all the executive servants of its will under its close and constant supervision, and to hold them to a strict accountability; in other words, to have the privilege of dismissing them whenever their service became unsatisfactory." The third period began with the Spanish War of 1898. Our foreign relations have increased in complexity and with them the President's power and influence; but because of the enlarged sense of senatorial prerogative, developed through three-quarters of a century of comparative diplomatic isolation, friction has been ex- treme.^^ Woodrow Wilson, now professor of politics at Princeton University, wrote a preface for the 15th edition of his book in 1900.^- " Much the most important change to be noticed is the result of the war with Spain upon the lodgment and exercise of power within our federal system ; the greatly increased power and opportunity for constructive states- manship given the President, by the plunge into international politics and 20 Congressional Government, 15th ed., pp. 266, 273-274. 21 Reinsch, American Legislatures, p. 95; Willoughby, o{>. ctt., p. 460. 22 Congressional Government, pp. xi-xiii. WRIGHT— CONTROL OF FOREIGN RELATIONS. 449 into the administration of distant dependencies, which has been that war's most striking and momentous consequence. When foreign affairs play a prominent part in the poHtics and policy of a nation, its Executive must of necessity be its guide; must utter every initial judgment, take every first step of action, supply the information upon which it is to act, suggest and in large measure control its conduct. " It may be, too, that the new leadership of the Executive, inasmuch as it is likely to last, will have a very far-reaching effect upon our whole method of government. It may give the heads of the executive departments a new influence upon the action of Congress. It may bring about, as a conse- quence, an integration which will substitute statesmanship for government by mass meeting. It may put this whole volume hopelessly out of date." Where the President has acted in domestic administration, he has acted within limits, narrowly defined by Congress, and as time has gone on, his discretion in this field has become less and less. Where, on the contrary, he has acted in foreign affairs, his discre- tion has been very wide, and Congress has generally followed his lead. " The Senate," says Carl Russell Fish, speaking of the period since 1898, "has been confined to checking or modifying the policy of the administration. The direction of policy has been with the executive." ^^ Can we not assume that the result of over a century of experience under the Constitution illustrates certain necessities in an adequate control of foreign affairs ? ^^ 265. Constitutional Change Not Necessary. Our system for controlling foreign relations has been copied in its main outlines on the continent of Europe, and its adoption has been suggested as a reform worth considering in England. It has in it elements making for concentration of authority in an emergency, yet it assures control by the people's representatives of permanent obligations. More than all we are used to it. Remem- bering Montaigne's warning that " all great mutations shake and disorder a state," ^^ we may question the advisability of radical change in the Constitution. 266. Need of Constitutional Understandings. Improvement lies not in structural change in our organs for con- 23 American Diplomacy, N. Y., 1916, p. 428; see also Reinsch, World Politics, p. 337. 2* Corwin, op. cit., p. 207. 25 Montaigne, Essays, Cotton, ed., 2 : 760. 450 WRIGHT— CONTROL OF FOREIGN RELATIONS. trol of foreign relations,-*' but in the development of understandings for the smooth interaction of the independent departments of govern- ment. Lord John Russell remarked that " political constitutions in which different bodies share the supreme power are only enabled to exist by the forbearance of those among whom this power is dis- tributed." -' It is a familiar thought and has been developed in detail by Professor Dicey, who distinguishes the conventions or understanding from the law of the British Constitution. The former explain how the independent organs of the supreme power, King, Lords and Commons, shall exercise their discretion, i.e.^ how the Crown shall exercise its prerogative and the Houses of Parliament their privileges. He believes that in England these conventions have grown up so as to assure the ultimate triumph of the will of the political sovereign, i.e., the majority of the voters for members of the House of Commons.^* In the eighteenth century the British Constitution, though per- haps organized to preserve liberty, as Montesquieu, De Lolme and Blackstone thought, was a jarring and jangling instrument. There was little of smoothness in the relations of George HI, his ministers and his parliaments. The United States Constitution is now in that condition. We have good institutions but we have not yet de- 26 The writer is inclined to believe that a change in the treaty power from two-thirds of the Senate to a majority of both houses would be an improve- ment. This would be in accord with the practice of most continental Euro- pean governments. It would obviate the complaint of the House of Repre- sentatives and eliminate the ever present possibility of inability to execute a treaty, valid at international law, because of refusal of the House to agree to appropriations or necessary legislation. It would also make deadlocks less frequent. One party is much more likely to control a majority of both houses than two-thirds of the Senate. The main objection of the fathers to submission to the House was on the score of secrecy, and this has frequently been abandoned by the Senate in recent years. This change, which would, of course, require a constitutional amendment, would make the treaty-making power the same as the legislative power, except that the President would have the sole initiative, and retaining an ultimate decision on ratification, would have an absolute veto. See also J. T. Young, The New American Movement, N. Y., 191S, p. 25, and former Representative and Governor of Massachusetts, S. W. McCall, "Of the Senate" and "Again the Senate," Atlantic Monthly. Oct., 1903, and Sept., 1920. 27 Quoted, Wilson, Cong. Govt., 15th ed., p. 242. 28 Dicey, The Law of the Constitution, 8th ed., Chap. XIV. WRIGHT— CONTROL OF FOREIGN RELATIONS. 451 veloped constitutional manners which will make them work like a well-ordered dinner party. The crudity of Jefferson's pell mell banquet and Jackson's Peggy O'Neil cotillion persists in the rela- tions of the departments of government. Our conventions will not be those of England. In the conduct of domestic afi'airs, our system of legally enforceable limitations upon power rather than the English system of unlimited power, subject to immediate political responsibility for its exercise, is likely to persist. We will continue to rely upon legal responsibility, rather than political responsibility as in England, or administrative respon- sibility as on the continent of Europe. In short, the object of the conventions and understandings which we will develop will be the ultimate triumph of the people acting through the constitution- amending process, not as in England, the people acting through an election to the House of Commons. In the conduct of foreign affairs, however, there will probably be a closer approximation in the two countries. At present parlia- mentary control does not exist in the British foreign office^® any more than constitutional limitations check the President's control of foreign relations.^*' In foreign affairs neither a daily question- ing under threat of ousting from office, nor a judicially interpreted confinement to constitutional powers has proved feasible. Until international organization is much further developed, great discre- tion must be vested in a single head. Acts involving assumptions of national responsibility must be final. Under present conditions we must frankly recognize executive leadership in foreign affairs. But we must attempt to develop conventions so that the President's wide discretion will only be exercised after the most careful con- sideration possible, and in a way which will make the employment of a senatorial or congressional veto an extreme rarity, and an im- 2» See remarks of A. J. Balfour and Premier Asquith to Select Committee of the House of Commons on Procedure, 1914 (Report 378), printed in Ponsonby, op. cit., Appdx. i, p. 121 et seq. See also ibid., p. 45 et seq., Heatley, op. cit., pp. 68-70, 265, and supra, note 18. 30 See H. J. Ford, " The War and the Constitution," and " The Growth of Dictatorship," Atlantic Monthly, Oct., 1917, and May, 1918, and supra, sec. 68. PROC. AMER. PHIL. SOC, VOL. LX., DD, MARCH I5, I922. 452 WRIGHT— CONTROL OF FOREIGN RELATIONS. peachment a virtual impossibility. Such conventions might develop through : 1. Declaration by Congress of permanent policies, not in any way restricting executive methods, but pointing the general ends toward which the President should direct his effort ; ^^ 2. Development by treaty of international organization and ar- bitration so as to bring as large a portion of diplomacy as possible under the control of recognized principles of international law, an atmosphere in which democratic institutions, and particularly Amer- ican institutions, have always thriven ; ^- 3. Observance by the independent departments of government of the understanding that toleration, consideration, and respect should grace the exercise of powers which may collide with the powers of other departments, which may need supplementing by the action of other departments, or which may be indispensable for the meeting of international responsibilities.^^ Finally, as a necessary condition of such observance ; 4. Maintenance of close informal relations between the agencies of the government having to do with foreign affairs. Such rela- tions now exist between the President and the administrative depart- ments represented in the Cabinet. Why should not the Cabinet be enlarged so as to include representatives of the legislative branch? The Vice-President, who is closely in contact with the Senate, has been added by President Harding. But a more genuine congres- sional point of view could be gained by admitting also the Speaker of the House, President pro tem. of the Senate, and perhaps the 31 Supra, sec. 204. 32 " Democracies are absolutely dependent for their existence upon the preservation of law. Autocracies can give commands and enforce them. Rules of action are a convenience, not a necessity, for them. On the other hand, the only atmosphere in which a democracy can live between the danger of autocracy on one side and the danger of anarchy on the other is the atmosphere of law. . . . The conception of an international law binding upon the governments of the world is, therefore, natural to the people of a democ- racy, and any violation of the law which they themselves have joined in prescribing is received with disapproval, if not with resentment." E. Root, The Effect of Democracy on International Law, Proc. Am. Soc. Int. Law, 191 7, pp. 7-8. 33 Supra, sec. 244. WRIGHT— CONTROL OF FOREIGN RELATIONS. 453 Chairman of the House Committee on Foreign Affairs and the Sen- ate Committee on Foreign Relations. The President, sitting with these five officials, together with the Secretaries of State, Treasury, War, Navy, Commerce and the Attorney-General, would form a Cabinet capable of reaching decisions on foreign affairs likely to secure cooperation from all departments of the government and yet not too large to do business. ^^ Closer relations might also be established by the President with Congress and especially with the Senate through personal delivery of messages and explanations of his policy, but always at his ini- tiative.^^ The present practice, whereby Congress does not *' di- rect '' the Secretary of State to submit papers and information as it does other cabinet officers but requests the real head of the depart- ment, the President of the United States, "to submit matters if, in his judgment, not incompatible with the public interest," must be maintained.^® Finally, close informal relations between the President and con- gressional committees on foreign affairs should exist, here again at the President's initiative. President Madison was right, as Sen- ator Lodge pointed out in 1906, in refusing to receive a Senate com- mittee sent on command of that body to interview him with refer- ence to an appointment of a minister to Sweden. ^^ But the Pres- 34 The writer owes this suggestion to Professor John A. Fairlie. 35 " Rule XXXVI of the Standing Rules of the Senate still provides the manner in which the President is to meet the Senate in executive session. Henry Cabot Lodge, in referring to the recognition in this rule of the right of the President to meet with the Senate in consideration of treaties, said in the United States Senate, January 24, 1906: 'Yet I think we should be dis- posed to resent it if a request of that sort was made to us by the President.' Cong. Rec, SQth Cong., ist sess., 1470" (Crandall, op. cit., p. 68, note 5). But see remarks of Senator Bacon, supra, sec. 176. President Wilson revived the custom in abeyance since the time of John Adams of appearing in person before Congress for the delivery of formal messages. 38 Supra, sec. 234. 3^ " In the administration of Mr. Madison the Senate deputed a committee to see him in regard to the appointment of a minister to Sweden, and he replied that he could recognize no committee of the Senate, that his relations were exclusively with the Senate." Senator Lodge of Massachusetts, Jan. 23, 1906, Cong. Rcc, 40: 1420, quoted Corwin, op. cit., pp. 174-175. 454 WRIGHT— CONTROL OF FOREIGN RELATIONS. ident should often invite such committees to discuss with him.^* Thus, without limiting the President's power in foreign relations, or in any way impairing his capacity to take speedy action when necessary, we might develop conventions which would show him how he ought to exercise his discretion — conventions sanctioned in last analysis by the possibility of Senate or congressional veto of his measures, defeat of his party in the next election, or even im- peachment. Though this essay has dealt with constitutional law and consti- tutional conventions, it must be emphasized that the system is not the most important part of government. Any system will work with big men.'^^ It is the merit of the British system that it throws big men to the top. The United States must develop political tradi- tions and methods that will do the same.*" The people and parties must insist on men of experience and tried capacity as candidates. For the conduct of foreign relations, the personnel of the Presidency, the Secretaryship of State and the Senate are especially important. The Senate might well have more members with executive and ad- ministrative experience as did the Senate of ancient Rome. Why not retain the services of ex-Presidents and Secretaries by electing •them to the Senate ? *^ Conversely, Secretaries of State might well tbe chosen from men of legislative, especially senatorial, experience.*^ ^^ Supra, sec. 176. A recent illustration is President Wilson's offer to discuss the treaty of Versailles with the Senate Foreign Relations Committee, an offer which resulted in several conferences in the White House during the summer of 1919. See 66th Cong., ist sess., Sen. Doc. 106, p. 499 et seq. 39 " Constitute government how you please, infinitely the greater part of it must depend upon the exercise of powers which are left at large to the prudence and uprightness of ministers of state. Even all the use and potency of the laws depends upon them. Without them your Commonwealth is no better than a scheme upon paper ; and not a living, active, effective organiza- tion." Edmund Burke. ^ Reinsch, World Politics, pp. 340-346. *i There have been some notable examples of this in recent years, such as Senators Root and Knox. 42 " From Monroe's Secretaryship of State in 1811, down to the resigna- tion of Mr. Blaine, that position was held constantly by men who had been United States Senators, with the exception of brief interregna, covering alto- gether less than one and a half years, and with the exception of William M. Evarts, who became a Senator later in his career. Since the resignation of WRIGHT- CONTROL OF FOREIGN RELATIONS. 455 Finally, the President on whom falls final responsibility for leading the separated and often antagonistic agencies of government to the goal of a successful foreign policy should not be a dark horse. Why not develop traditions of advancement, as from a governorship to the Senate, then to the Vice-Presidency, or to the Cabinet, and finally to the Presidency. It was done in the first forty years of our national history.*^ It would lead bigger men to the Senate and Cabinet. It would insure capacity and popular confidence in the President. Mr. Blaine an entirely new system has come into use, Senators Sherman (and Knox) being the only Secretaries of State who had also been members of the Senate. Under these circumstances, it is not surprising that there should have been more friction between the President and the Senate on foreign matters than existed during the earlier years of our nation's life." (Reinsch, Am. Legislatures, p. 95, quoted in Will'oughby, op. cit., p. 460.) *3 For table showing the experience of American Presidents, see Am. Pol. Set. Rev., IS : 25. Wilson (Congressional Government, pp. 251-256) refers to the tendency of the governorship rather than membership in the Senate or House to be in the line of promotion to the presidency. Proceedings Am. Philos. Soc. Vol. LX. 1921. Plate VII ..^' r-T'^r^^^^^ iA"'- *^, i^.*-. Fig. I. Fig. 2. THE " TURTLE-OREODON LAYER" OR "RED LAYER," A CONTRIBUTION TO THE STRATIGRAPHY OF THE WHITE RIVER OLIGOCENE (RESULTS OF THE PRINCETON UNIVERSITY 1920 EXPEDITION TO SOUTH DAKOTA). (Plate VII.) Investigation aided by a Grant from the Marsh Fund of the National Academy of Sciences. By WILLIAM J. SINCLAIR. (Read April 22, 1921.) Perhaps the most abundantly fossihferous horizon in the White River Ohgocene badlands of South Dakota is a nodular clay band at the base of the Brule formation (Oreodon beds), vi^hich, from the abundant remains of turtles and oreodons, the rusty color of the fossils in general, and the pinkish-gray tone of the matrix, has long been known to collectors as the " turtle-oreodon layer " or " red layer." It is remarkably persistent throughout a region miles in extent and, although known and collected from for the past seventy years, is still a never-failing source of splendidly preserved material. In thickness it varies considerably, values ranging from 29.5 to 39 feet having been obtained within a few miles of each other in Pen- nington County in the Big Badlands, where the " red layer " is most typically developed, and of 43 feet at Cedar Pass near Interior in Jackson County. There is considerable facial difference between these two areas, necessitating their separate description. In the Big Badlands, throughout the basins of Indian Creek, Spring Creek, Bear Creek, Jones Creek and Cain Creek, in Penning- ton County, the base of the " turtle-oreodon layer " lies immediately above a white more or less completely silicified limestone in discon- tinuous lenses, forming, wherever present, excellent horizon mark- ers. From analogy with a similar material found in the middle 457 458 SINCLAIR— THE " TURTLE-OREODON LAYER." Oreodon beds capping flat-topped buttes south of the town of Scenic and abounding in the tests of ostracod crustaceans, even in com- pletely silicified portions of the rock, they are interpreted as deposits formed in shallow pools on the surface of the level plain on which the Oreodon beds were later deposited, as discussed below. Some have been completely replaced by silica, showing white or brown chert bands. Titanothere bones in place have been seen at several localities but a few feet below these white lenses. Above, the " red layer " is usually overlain by a zone of greenish nodules and sandy lenses in a green clay about 17 feet thick where measured in the eastern part of the basin of Indian Creek. The difference in lithol- ogy and color and the extreme poverty in fossils of this green noduliferous zone, in striking contrast with their abundance but a foot or so below, makes the identification of the upper limit of the horizon in question an easy matter, and the collector is always eager to return to it after his excursion into the barren layer above. In Pennington County the " turtle-oreodon layer " is usually a harsh-feeling pinkish-gray clay with greenish banding and mottling, containing in the uppermost six or seven feet one or more zones of calcareous concretions (PI. VII., Fig. i), frequently inclosing turtles or Oreodon and other skulls and partial skeletons. The pinkish tinge is much more apparent when the beds are wet after a rain. They abound in rolled clay pellets best seen in the nodules which are merely local hardenings of the clay without concentric structure. Possibly the inclosed fossils have at times controlled the accretion of calcareous material, but very many contain no fossils nor any visible central nucleus. They vary in diameter from a fraction of an inch to several feet. Their surface may be stained a rusty brown and is pitted with depressions left by the weathering out of the clay pellets just referred to. Sometimes a calcified root tracery is visible on the surface of a concretion. Occasionally, as observed at several places in the basin of Indian Creek, they fuse into a solid sheet of rusty, clayey limestone a few inches to a foot or more thick, from which fossils are absent, but with return to the condition of separate nodules fossils reappear. In Pennington County the nodules are locally cut out, either alto- SINCLAIR— THE " TURTLE^OREODON LAYER." 459 gether or in part, by channels of varying depth filled with coarse greenish micaceous sandstone, which I take to be the equivalent of the Metamynodon channel sandstone, as they occupy a position sirni- lar to the latter. The nodules do not pass through the sandstones or lie above them, but stop suddenly at the edges of the channels and reappear beyond them, which can only be interpreted as erosion subsequent to the deposition of the nodular zone ; but there are other channels clearly contemporary with the " turtle-oreodon layer " and wholly inclosed within it as observed to the east of Chamberlain Pass, about 4.5 miles east of Scenic in the basin of Cain Creek, where the lower levels of the " turtle-oreodon layer " may be diversi- fied by zones of pale green lime-cemented concretions or hard green- ish sandy clays cut by vertical joints into spherically weathering blocks and separated horizontally by beds of soft clay. Further- more, a well-defined green sandstone channel was here noted in the upper part of the " red layer " itself. In Jackson County, in the vicinity of Cedar Pass near Interior, along the south side of " The Wall," the contact of the " turtle- oreodon layer" with the Titanotherium beds is somewhat doubtful owing to the presence in both of greenish nodular zones which look very much alike and to the local absence of fossils characteristic of the Titanotherium beds. My measurements started somewhat arbi- trarily at the top of a rather persistent bed of reddish clay above which an Oreodon beds fauna occurs throughout a zone of reddish and greenish banded clays 43 feet, more or less, thick with frequent bands of nodules, greenish in color in the lower part and, at the top, rusty and cellular, inclosing fossils and similar in every respect to those described from the Big Badlands. At the Cedar Pass locality the " turtle-oreodon layer " is followed by 58 feet, more or less, of clay from which nodules are conspicuously absent, faintly color- banded (red and green) and practically free from coarse material except an occasional thin lens of sandstone. It will be noted that this sequence of beds is somewhat dififerent from that found 40 miles or more farther west, but this is not an infrequent occurrence in Tertiary continental formations. The remarkable thing is the presence of the " turtle-oreodon layer " or " red layer " over such a 460 SINCLAIR— THE " TURTLE-OREODON LAYER." vast extent of country, with everywhere the persistence of a rusty nodular zone at its top, and its development over what appears to have been a base-leveled surface (Fig. 2, PI. VII.). Before discussing the origin of the " red layer " a novel feature should be mentioned, namely, the presence at several horizons in the upper Titanotherium and lower Oreodon beds in the basin of Indian Creek of calcareous crusts and nodules formed by the functioning of blue-green algas, similar to the algal balls described by Professor H. Justin Roddy from Little Conestoga Creek, Lancaster County, Pennsylvania.^ One of these algal reefs occurs in the upper part of the " turtle-oreodon layer," probably in Sec. 6, T. 4 S., R. 13 E., Black Hills Mer., in the most easterly part of Indian Creek basin about half a mile west of the narrow mesa known locally as Hart Mountain. It is exposed along the south side of a minor badland draw and occurs both in the pinkish-gray clays of the " turtle- oreodon layer " and along the margin of a channel-filling of green micaceous sandstone interrupting the upper part of the brown nodu- lar zone. Laterally, the reef passes into the sandstone, some of the algal masses rising as miniature islands through the sand. Most of the algal growth here is in the form of a crust, only a foot or so of its width remaining in place, the rest being scattered as talus blocks over the underlying clays. At least three zones of rusty nodules are present in the general vicinity of this reef. The nodules decrease in number as the south edge of the algal crust is approached and almost disappear. The reef first appears as a thin seam in the pinkish-gray clays and rapidly thickens up to a maximum of two inches or so of typically concentrically-banded, Stromatopora-Uke algal crust and balls. About 50 feet north of the south edge of the algal crust it abuts on the green channel sandstone already mentioned. The whole deposit has a length from north to south of 225-250 paces and is scattered as talus over a width of clay slope from 25 to 50 feet beyond its outcrop. Rusty nodules of the type inclosing rolled mud pellets are much less abundant throughout the area occupied by the algal reef, because cut out by the channel with which it is associ- ated. A few project from their clay matrix below the level of the 1 Proc. Am. Phil. Soc, Vol. LIV., 1915, pp. 246-258, two figures. SINCLAIR— THE " TURTLE-OREODON LAYER." 461 algal crust ; none were seen included in it. These algae grew at the edge and partly within a shallow stream cutting the " turtle-oreodon layer ". Elsewhere throughout Indian Creek basin algal crusts and balls have been seen at several localities in the upper part of the Titanotherium beds, not far below the Oreodon beds contact, resting on a clay substratum and sometimes growing over bone fragments. Specimens of both types have been sectioned and the material sub- mitted to Dr. Marshall A. Howe, of the New York Botanical Gar- den. His studies thereon have been most seriously handicapped by recrystallization of the organically formed limestone, almost com- pletely obliterating the original cellular structure. Dr. Howe thinks that one organism dominates, and that there is no very serious ad- mixture, and, furthermore, that " it is most reasonable to suppose that the plant belongs with the Myxophycese (Cyanophycese or Blue- green Algae), and under this class its family is most likely to be the Rivulariaceas, though one can not feel absolutely confident of it. One would not be justified in referring it to any known genus, living or fossil, and there is nothing very definite, concrete, or detailed on which to establish a new genus." In formulating a theory of origin for the " turtle-oreodon layer " conditions controlling the deposition and preservation of the nu- merous fossils, as well as lithologic and stratigraphic data, must be considered. Every collector is at once struck by the enormous num- bers of fossil turtles of all sizes. These are not aquatic forms, but, as Dr. Hay^ has pointed out, are closely related to our living land tortoises, so far as can be determined from the material available, mostly empty carapaces. These, quite irrespective of size, do not lie in death pose, but may be upside down or on edge. Heads and limbs are missing and have either been eaten by carnivores or de- cayed and dropped off when the shells were moved by the trans- porting agent. The majority of the other fossils found are mam- malian skulls, often with lower jaws attached, and lie in all sorts of positions. Loosely inserted teeth are sometimes missing, but there is little or no indication of abrasion by movement in material found outside the sandstone channels. Many of the skulls were reduced 2 O. P. Hay, " The Fossil Turtles of North America," Carnegie Institu- tion of Washington. Publication No. 75, p. 385, 1908. 462 SINCLAIR— THE " TURTLE-OREODON LAYER." before interment to the condition of tooth-bearing jaw- fragments, the portion of the body most resistant to decay. Turtle shells and all the cavities in the skulls are completely filled with a harsh-feeling pinkish-gray^ clay full of small rolled clay pellets. These are not concentrated into lenses, but evenly distributed throughout the clay. Mouse-nibbled bones and abundant undissolved coprolites of car- nivores are common features in the same matrix with the skulls and turtle shells. One associated Oreodon skeleton collected by the Princeton Expedition of 1920 had the head and neck bent back in a manner frequently observable in the more or less dried-up carcasses of sheep killed by winter storms. A film of iron oxide, red or yellow, frequently covers the fossil bones, their organic content per- haps acting as a precipitant on iron compounds which subsequently oxidized. Some of the original calcareous material of the bones still remains, but much has been replaced by silica, which may com- pletely fill marrow cavities in limb bones, and pulp canals in teeth, and oqcurs also in the form of chalcedony veins in the numerous shrinkage cracks which traverse both Titanotherium and Oreodon beds. Turning now to stratigraphic and lithologic data, in the basin of Indian Creek, when viewed from a distance, the Chadron-Brule con- tact is seen to be remarkably even and free from sinuosities, appar- ently a base-leveled erosion plane separating the soft cross-bedded clays and channel sandstones of the Titanotherium beds, with their smooth hummocky hill profiles, from the horizontally stratified, evenly color-banded, harsh-feeling Oreodon clays with their den- dritic type of dissection and steeper slopes. The sudden disap- pearance of titanotheres at the contact is further proof of a strati- graphic break. When examined close at hand, the contact loses much of its distinctness, owing to the softness and similarity of ma- terials on either side of the erosion plane. Over this surface, on which were numerous minor ponds floored with marl (the silicified limestones already described as occurring at the contact), a harsh 3 The color is about intermediate between " seashell pink " and " pale och- reous-salmon " of Ridgway's Color Standards and Nomenclature, Pis. XIV., XV., 1912, with a pale gray tone and has accordingly been spoken of above as pinkish-gray. SINCLAIR— THE " TURTLE-OREODON LAYER." 463 pinkish-gray clay full of rolled clay pellets was laid down in layers, apparently at times when the plain was inundated by successive, per- haps very shallow and temporary, floods, a conclusion similar to that reached years ago by Hatcher.* The spreading of such floods would account for the distribution of rolled clay pellets, the over- turning of the shells of dead land turtles, the drowning of others in vast numbers and perhaps the suspension of their gas-distended bodies long enough for decomposition to separate the heads and limbs, for the covering of sun-dried shrunken carcasses and such bones as may have lain on the surface and for the filling of all the cavities in the skulls and turtle shells with fine mud. That such flooding was temporary may be inferred from the widely distributed carnivore excrements, perhaps coated with a film of clay, but still bearing sharp impress of the sphincter ani muscles and certainly not voided in water. The brown rusty nodules have, I think, been produced by the rise surfaceward, through capillarity in time of drought, of sub- surface waters charged with carbonate of lime and the deposition of this limey content through evaporation, locally cementing the clays along definite planes parallel to the surface of the ground, forming either solid sheets or bands of nodules, depending, perhaps, on the amount of lime present, the quantity of water being evaporated, or both. Occasionally bones acted as centers of accretion. The rusty stain is a phenomenon confined to the surface of the nodules and was probably produced subsequent to their exposure by weathering. It is not always developed, and the nodules may be similar in color to the investing clays. The origin of the sediments of the " turtle-oreodon layer " is part of a larger problem involving the source of the materials of the White River Oligocene as a whole, consideration of which is de- ferred until a later occasion. The harshness of feel which char- acterizes both clays and sandstones is largely due to calcareous impregnation, for, strange to say, while the fossils are in part silici- fied and there is abundant chalcedony in the veins which traverse the clays, the cementing substance of the rusty fossiliferous nodules *J. B. Hatcher, "Origin of the Oligocene and Miocene Deposits of the Great Plains," Proc. Am. Phil. Soc, Vol. XLI., pp. 113-131, April, 1902. 464 SINCLAIR— THE " TURTLE-OREODON LAYER." and of the soft channel sandstones is carbonate of hme and not silica. Only rarely does the matrix of a fossil or the immediate vicinity of a large chalcedony vein show siliceous impregnation. When the calcareous cement of the channel sandstones associated with the " turtle-oreodon layer " is dissolved in hydrochloric acid, the insoluble residues are found to abound in quartz grains, foils of white mica, clay pellets and fine clay dust, and very finely divided pinkish clay with minute quartz fragments constitutes the matrix of the " red layer " itself. While I have found abundant volcanic ash in one of the higher horizons of the Oligocene, I have not estab- lished its presence in the " turtle-oreodon layer," although it is per- fectly possible that it occurs mixed with the pinkish clays and per- haps may have supplied the silica which replaces fossils and fresh- water limestones and occurs in such abundance in the chalcedony veins. The latter are posterior in origin to the caliche nodules in the upper part of the " red layer," since fossils and nodules are frequently cut by them. Rosettes and geodes are other forms as- sumed by the same material. I am of the opinion that a climatic factor is involved in the problem of the origin of the White River sediments, but, at the present stage of the investigation, am not prepared to demonstrate it fully. Certain facts observed in connection with the horizon we have been discussing seem to bear on the subject. In the valley of Indian Creek the Titanotherium beds rest with marked unconformity on the eroded surface of the Pierre shale, with a basal conglomerate at the contact containing pebbles of quartz, chert and other hard rocks. The top of the substratum has considerable topographic re- lief, so that the thickness of the Titanotherium beds varies from place to place. Throughout this formation cross-bedding is com- mon and there are frequent large channels filled with coarse quartz- ose sediments. The impression conveyed is that of fluviatile deposi- tion under conditions of generous rainfall, abundant run-ofif and rapid sedimentation. Accumulation of detritus eventually ceased, temporarily, and erosion began, producing the base-leveled surface which separates the Titanotherium from the Oreodon beds, an event which I would associate with a climatic rhythm, perhaps a swing SINCLAIR— THE " TURTLE^OREODON LAYER." 465 toward dryer conditions, bringing about the extinction of Titano- therimn. With the return of fluviatile deposition, a slower accumulation of silt by sheet-flood action over a level plain may be indicated by the predominance of approximate horizontality in the stratification and uniformity in the thickness of the color-banding. The slight southeasterly dip which the beds show (Plate VII, Fig. 2), inclining them at a greater angle than the present high-prairie top, is probably initial dip, possibly intensified by subsequent warping. Seasons or cycles of less abundant precipitation, during which ground water was drawn surfaceward by capillarity, are indicated by the zones of coliche nodules. Perhaps the pink color of the basal clays of the Creodon beds, the " turtle-oreodon layer " or " red layer " we have been discussing, has a climatic significance, but considering how little we know about the chemical changes involved in the iron com- pounds responsible for the color or the conditions under which they take place, it would be unsafe to conclude that it indicated aridity, for our modern western-desert sediments are gray and not red. Certain pink clay zones farther up in the Oreodon beds, shown as darker bands in the distance in Fig. 2, perhaps owe their color to climate, but what kind of climate must remain, for the present, doubtful. The testimony of mouse-nibbled bones, carnivore excre- ments and carcasses in death pose fits in with the climatic rhythm here suggested. The zone of green channel-sandstone lenses weathering into spherical concretions, which occurs above the basal pinkish-gray clays of the Oreodon beds in the Big Badlands, may represent a swing-back toward the pluvial cycle. Minor rhythms are, I think, iridicated by certain of the larger channel fillings, such as the Meta- mynodon channels, filled with coarse sediments and afifording re- mains of an aquatic rhinoceros. These may have been deposited during cycles of greater precipitation about the headwaters of the streams, which sent them, charged with coarse sediments, far out over the clay-covered plain to the east. The recurrence of Metamynodon in channels at dififerent levels, noted by Wortman,^ fits in with the interpretation just suggested, ^Buli Am. Mus., Vol. V., Article IX., p. loi, 1893. 466 SINCLAIR— THE " TURTLE-OREODON LAYER." for with every spreading eastward of the streams, due to cHmatic causes, the fauna Hving along the water courses would recur in the channels cutting the clays in which we find remains of the animals of the plain. So far as my observations have gone, these channels aic posterior to the formation of the caliche nodules and not con- temporary with them, since they cut out the nodular zones. That these changes did not involve a lowering of temperature is suggested by the presence of alligator-like forms, few in numbers, but occurring, nevertheless, in the Titanotherium beds.^ They per- sist in the higher plains area until Pliocene time, as shown by the discovery of a single crocodilian vertebra in the Snake Creek Plio- cene gravels in Sioux County, northwestern Nebraska, by our 1914 expedition.'^ I have not yet identified any volcanic ash in the " red layer," nor have I noted therein any sediments which might be re- garded as of seolian origin. Plate VII. Fig. I. Rusty concretions and turtles weathering out of the " turtle-oreo- don layer " which covers the flat in the foreground. Princeton collecting locality lOisDaa on the west side of the Reservation road, 5.1 miles south of Scenic, Pennington County, South Dakota. Looking north. This local- ity is near the divide between Cheyenne R. and White R. drainage in the Bear Creek basin. Typical exposure at a highly fossiliferous locality. Fig. 2. Contact, indicated by the asterisk, between the Titanotherium beds (foreground) and the banded Oreodon beds (background) on the west side of Hart Table, valley of Indian Creek, Pennington County, South Dakota. Looking east. The slight southeasterly dip of the Oreodon beds is also shown. Princeton collecting locality 1015A i. ^ F. B. Loomis, " Two New River Reptiles from the Titanothere Beds," Am. Jour. Sci., 4th Series, Vol. 18, pp. 427-432, 1904. M. G. Mehl, " Caiman- oidea Visheri, a New Crocodilian from the Oligocene of South Dakota," Jour, of Geo!., Vol. XXIV., No. i, Jan.-Feb., 1916, pp. 47-56. 7 Proc. Am. Phil. Soc, Vol. LIV., No. 217, May-June, 1915, p. 77. I MAGELLANIC PREMIUM Founded in 1786 by John Hyacinth de Magellan, of London 1923 THE AMERICAN PHILOSOPHICAL SOCIETY Held at Philadelphia, for Promoting Useful Kwowledge ANNOUNCES THAT IN DECEMBER, 1923 IT V/ri.1, AWARD ITS MAGELLANIC GOLD MEDAL TO THE author of THE BEST DISCOVERY, OR MOST USEFUL INVENTION, RE- LATING TO NAVIGATION, ASTRONOMY, OR NATURAL PHILOSOPHY (mERH NATURAL HISTORY ONLY EXCEPTED) UNDER THE FOLLOWING CONDITIONS : 1. The candidate shall, on or before November i, 1923, deliver free of postage or other charges, his discovery, invention or improvement, addressed to the President of the American Philosophical Society, No. 104 South Fifth Street, Philadelphia, U. S. A., and shall distinguish his performance by some motto, device, or other signature. With his discovery, invention, or improvement, he shall also send a sealed letter containing the sam« motto, device, or other sig- nature, and subscribed with the real name and place of residence of the author. 2. 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A« Proceedings OF THE American Pliilosophical Society Subscription — Three Dollars per Annum General Index to the Proceedings Volumes 1-50 (1838-1911) Lately Published Price, One Dollar TRANSACTIONS OF THE American Philosophical Society HELD AT PHILADELPHIA For Promoting Useful Knowledge JVew Series, Vol. XXII, Part IV, 4io, 44 V^Q^^j ^ plates. {Just Published) The Feeding Habits of Pseudomyrmine Ants. By W. M Wheeler and I. W. Bailey. Subscription— Five Dollars per Volume Separate parts are not sold (Address The Librarian of the AMERICAN PHILOSOPHICAL SOCIETY No. 104 South Fifth Street PHILADELPHIA, U. S- A. MAY 9 1922 [This is the Concluding Number of Volume LXJ PROCEEDINGS OF THE American Philosophical Society HELD AT PHILADELPHIA FOR PROMOTING USEFUL KNOWLEDGE Vol. LX, 1921. No. 4. CONTENTS PAGB Entelodonts from the Big Badlands of South Dakota in the Geologi- cal Museum of Princeton University. By William J. Sinclair 467 On Mean Relative and Absolute Parallaxes. By Keivin Burns - - 496 The Nature and Origin of the Fishes of the Pacific Slope of Ecuador, Peru and Chili. By Carl H. Eigenmann ------- 503 Measurement of Star Diameters by the Interferometer Method. By F. G. Pease ---------------- 524 The Peopling of Asia. By Ales Hrdlicka -------- 535 An Electro Chemical Theory of Normal and Certain Pathological Processes. By G. W. Crile ----------- 546 The Coudersport Ice Mine. By Edwin Swift Balch - - - - 553 Obituary Notices: Morris Jastrow, Jr. ---------- x Index ----------.-------,-- XXV PHILADELPHIA THE AMERICAN PHILOSOPHICAL SOCIETY 104 South Fifth Street 1921 Members who have not as yet sent their photographs to the Society will confer a favor by so doing ; cabinet size preferred. It is requested that all correspondence be addressed To THE Secretaries of the AMERICAN PHILOSOPHICAL SOCIETY T04 South Fifth Street Philadelphia, U. S. A. ENTELODONTS FROM THE BIG BADLANDS OF SOUTH DAKOTA IN THE GEOLOGICAL MUSEUM OF • PRINCETON UNIVERSITY. Investigation aided by a Grant from the Marsh Fund of the National Academy of Sciences. By WILLIAAI J. SINCLAIR. (Read April 22, 1921.) I had always assumed that entelodonts were rare fossils in the White River Oligocene until last summer when the Princeton Expe- dition to South Dakota, within an area of about two square miles in the valley of Indian Creek, in Pennington County, between July 14 and 2y, collected five skulls and two lower jaws belonging to three species of Archceotherium and noted, but refrained from collecting, perhaps as many more fragmentary specimens within the same area. This mass of new material made it desirable to restudy the Prince- ton entelodont collection as a whole, as much of it had never been adequately determined. Fortunately, the timely appearance of Mr. Troxell's^ excellent paper on the entelodonts in the Marsh collection at Yale greatly facilitated these studies. Whether certain of the characters used in the classification of these animals are of specific importance or of the nature of secondary sexual structures can not yet be determined. For the present it is safer to give a separate specific name to each well-defined variant, based on adequate mate- rial, than to group together forms which may have been rapidly mutating and thereby developing differences of the first degree of importance for detailed faunal and stratigraphic studies. A review of the genera and species represented follows. 1 Am. Jour. Set., Vol. L., Nov.-Dec, 1920, pp. 243-255, 361-386, 431-445. 467 PROC. AMER. PHIL. SOC, VOL. LX., EE, MARCH IJ, 1922. 468 SINCLAIR— ENTELODONTS FROM THE I. From the Titanotherium Beds. Archcuotherium scotti sp. nov. In 1895 Professor Scott- announced the discovery of the classic specimen now known as No. 10885 ^^^ mounted in the Geological Museum of Princeton University. This almost complete and unique skeleton (not "two almost complete skeletons" as mistakenly stated in the preliminary report) was found in the summer of 1894 by Mr. H. F. Wells in the upper Titanotherium beds in Corral Draw, South Dakota (whether in Pennington or Washington Counties does not appear), was secured by Mr. J. B. Hatcher and excavated by him May II, 1894, and was referred by Professor Scott, in his announce- ment to the International Zoological Congress at Leyden, to Leidy's Fig. I. Archcrotherium scoiti sp. nov. Holotype, No. 10885. Three-quar- ter view of the skull and jaws from the left side, in the position in which it stands on the mounted skeleton, approximately one-sixth natural size. Drawn from photograph and the specimen. 2 W. B. Scott, " Compte-Rendu des Seances du Troisieme Congres Inter- national de Zoologie," Leyde, 16-21 Septembre, 1895. Leyde, E. J. Brill, 1896. BIG BADLANDS OF SOUTH DAKOTA. 469 Elotherium ingens, "without paying much attention to the species," as he has since told me. Elotherium ingens, as originally constituted,^ is a composite, com- prising " fragments found in association with the fossils of Elo- therium mortoni in the Mauvaises Terres, which appear too large to belong to this species, even making allowance for a considerable range in size." These were from the collection of Dr. Hayden, did not pertain to a single individual and were from unknown horizons. The first to be mentioned by Dr. Leidy^ is the " fore part of the lower jaw, in advance of the second premolars," which therefore becomes the type specimen of Elotherium {= Archceotherium) ingens. In the light of what is at present known regarding the larger entelodont species of the White River Oligocene, the various fragments included by Leidy with the type of ingens are specifically indeterminate, since the latter retains no teeth. A suggestion of Mr. Troxell's, in a personal letter, first called my attention to the possibility that our Princeton specimen repre- sented a new type and, on reviewing the subject, I agree with him that the mandibular fragment figured by Leidy in front view on Plate XXVII., Fig. lo, of the " Extinct Mammalian Fauna," copied here on a smaller scale as Fig. 4, differs both in size and structure from the corresponding part of the specimen monographed in detail by Professor Scott,* for which I now propose the new name Archccotherium scotti (Figs, i, 2, 3, 22), characterizing it as follows : I. Very long and thick dependent malar process directed down- ward, forward and outward (the latter curvature probably intensi- fied by crushing), with thin sinuous anterior margin and greatly thickened, round-edged, club-like posterior distal end, projecting so far below the anterior distal end of the process that the latter seems to contract in breadth a second time after a minimum of 88 mm. and a maximum of 114 mm. The greatest thickness of the enlarged end is 46 mm. The outer face of the process is convex transversely at the narrowest part, convex behind and flat in front at the widest 3 J. Leidy, " The Extinct Mammalian Fauna of Dakota and Nebraska,'' Jour. Acad. Nat. Set. Phila.. Vol. VIL, Second Series, p. 192, 1869. * " The Osteology of Elotherium," Trans. Am. Phil. Soc, Vol. XIX., pp. 273-324- Pis. XVII., XVIII., 1898. 470 SINCLAIR— ENTELODONTS FROM THE expansion and concave longitudinally, accentuated by crushing. Its front margin, at the point of greatest expansion, is in line with the posterior border of the orbit. Fig. 2. Fig. 3- Fig. 2. Archccotherium scotti sp. nov. Holotype, No. 10885. Anterior mental process of the right side, seen from directly in front, one quarter the natural size. Fig. 3. Archceotherium scotti sp. nov. Holotype, No. 10885. Right ante- rior mental process from below, one quarter the natural size. To get the proper orientation, the drawing should be held overhead in an inverted po- sition and viewed from below. Fig. 4. Archceotherium ingens Leidy. Holotype. The front of the lower jaw showing the dependent processes. Copied from Leidy's figure, one quar- ter the natural size. 2. The zygomatic arch is 46 mm. wide at its narrowest part and the jugal process is very thin, and, while it extends to the front edge 'of the glenoid fossa, it takes no part therein and is not visible in side view, but only from below, as shown by the deep shading in 3. Pi seems to have been double-rooted, judging from extremely slight indications of a median constriction across the alveolus, but it would be equally permissible to assume that the roots were con- joined, with merely a groove extending lengthwise between them. The empty alveolus measures 28 x 19 mm. 4. The anterior mental processes are very large and extremely broad at the base, anteroposteriorly (Fig. 3), but vertically the neck is only 20 mm. thick at the middle, thinning out to an edge front and rear. Distally, the process swells out to an oval bulb 61 x 36 mm. in diameters and curves outward, backward and upward (in part due to crushing). So far as can be determined from the figure of A. ingens (Fig. 4), the corresponding structure seems to have BIG BADLANDS OF SOUTH DAKOTA. 471 been of uniform dimensions throughout, with a hemispherical termi- nation. Some interesting differences in proportions appear in the following measurements given by Leidy,*'^ to which have been added the appropriate figures for the species described herein: A. ingens, type. A. wanlessi, type. A. scotti, type. Height of symphysis (4 inches) Breadth of jaw outside of canine alveoli (3 % inches) Breadth between ends of mental protuber- ances (4M inches) Depth of jaw below first premolar (2% inches) loi.s mm. 955 121 70 125 mm. 100 92. 5 73 173 mm. iio.s 157 + 81 The posterior processes are long affairs with constricted neck and trilobate head, projecting outward and forward, the slope in the former direction being intensified by crushing. To facilitate rapid comparison, the principal measurements are included in the table on page 114, appended to the description of A. wanlessi. The drawing (Fig. i), which has been traced from a photograph and corrected from the original specimen, differs in many important respects from Von Iterson's plate in Professor Scott's memoir,^ especially in the delineation of the cheek flanges, the sagittal crest, the mental processes, and in the omission of teeth not present in the original, all of which greatly alter the contour of the skull as hitherto figured. As no 'drawings of the teeth have been published, the fol- lowing notes are added to aid in making comparisons : Upper incisors and canines had dropped out previous to fossiliza- tion. Pi is a small double-rooted tooth placed obliquely to the gen- eral direction of the tooth row and ii mm. (left) to 18 mm. (right) back of the canine. It is well back of the canine on the right side, but has its anterior edge almost in line with the posterior border of the canine alveolus on the opposite side. The crown measures 25 mm. in long diameter on the alveolar border. P2 is reoresented by an empty alveolus 26 mm. back of pj. P3 is also lacking, and there is only a short space between it and p2, with the measurement of *■ Loc. cit., p. 192. 5 Log. cit., PI. XVII. 472 SINCLAIR— ENTELODONTS FROM THE which the supporting framework of the mounted skeleton now inter- feres. P4 has its outer and back sides square, the inner rounded and the front deeply indented. On the anterior outer corner a prominence rises from the cingulum and the latter is present front and rear. Molars one and two are quadrangular, but too worn to show the crown patterns. Heavy cingula are present front and rear. In m3 the crown narrows in width posteriorly, the outer wall of the tooth converges inward, and there is a small posterior cin- gulum. In the lower series incisors and canines are represented by empty alveoli, as is also pi, which, as indicated above, may have been either double-rooted or with a single grooved root. It is 14 mm. back of the canine and 16 mm. from the base of p2. The latter is a double- rooted tooth without cutting edges in its present worn condition. The back of the crown is broken, so I can not determine whether it is of uniform width throughout. P3 is long anteroposteriorly (52 mm. on alveolar border) in proportion to its width (20 mm.). The worn crown is convex on both sides and there are no cutting edges. There is a slight basal tubercle in front and a long sloping shelf behind, the worn area extending down over the posterior root below the enamel. The remaining teeth are in close series. P4 is heavier and thicker than the preceding and wider in front than behind. The sides are plane and there are no cutting edges on the worn crown which measures 39 by 22 mm. The molars are well worn, but retain traces of cingula front and rear. The anterior cusps seemingly were higher than the posterior. M3 has a prominent hypoconulid and the tooth crown is a little wider anteriorly than posteriorly. The other molars are of uniform transverse width. II. From the Oreodon Beds. ArchcE other 'mm wanlessi sp. nov. Type No. 12522, Princeton University Geological Museum, col- lecting locality ioi5A2a, a splendid uncrushed skull with attached lower jaw and the first to fourth cervical vertebrae (Figs. 5, 6, 21) found by Mr. H. R, Wanless of the 1920 South Dakota Expedition on the 14th of last July in a large rusty nodule weathered out of the BIG BADLANDS OF SOUTH DAKOTA. 473 " turtle-oreodon layer," lower Oreodon beds, probably in Sec. 5, T. 4 S., R. 13 E., Black Hills meridian, near the headwaters of one of the most easterly branches of Indian Creek, west of Hart Moun- tain, in Pennington County. Fig. 5. ArchcEotheriutn wanlessi sp. nov. Holotype, No. 12522. Left side of the skull and lower jaw, one sixth natural size. Drawn from photograph and the specimen. This new form which it is proposed to name after its discoverer, Mr. Wanless, is well differentiated from all of the larger White River entelodonts by the following characters, believed to be specific : I. Marked peculiarities of the dependent malar processes. These are short, wide and thin, directed outward, downward and forward, and vastly shorter than in either A. crassmn or A. marshi, which approach No. 12522 most closely in size. The antero-distal margin is 4-6 mm. thick, is slightly everted and is almost at right angles to the distal border which gradually thickens backward, due to a broad swelling whose center is about 30 mm. above the distal end of the process, where a maximum thickness of 19 mm. is at- tained. From here it thins out in all directions, but less rapidly so proximally. At its greatest antero-posterior expansion the process is 80 mm. wide and but 10 mm. less at its narrowest part. Its front margin is concave and well back of a line drawn through the pos- terior border of the orbit. From the upper edge of the temporal bar the outer face of the malar process is slightly sigmoid in longi- 474 SINCLAIR— ENTELODONTS FROM THE tudinal section, concave proximally and convex distally. Trans- versely, it is convex at the narrowest part of the process and sigmoid toward the distal end, concave in front and convex behind. Fig. 6. Archceotherium wanlessi sp. nov. Holotype, No. 12522. Top view of the skull, one sixth natural size. Drawn from photograph and the speci- men. 2. The structure of the zygomatic arch, used by Troxell as a specific variant. At its narrowest part the arch is but 41 mm. wide and the jugal process is slender, reaching the front margin of the glenoid fossa, but not taking part therein. 3. The character of the first lower premolar, which is said to be small and single-rooted in A. marshi and large and double-rooted in A. crassum. In A. wanlessi it has been lost on both sides and the excavation of the alveolus fails to reveal any trace of a cross septum, BIG BADLANDS OF SOUTH DAKOTA. 475 suggesting that this tooth was not only single-rooted, but fairly large, the alveolus measuring 20 mm. antero-posteriorly. P2 is a good-sized tooth (see table of measurements), separated from pi by an 18 mm. interval and from p3 by a space of 8 mm. 4. The size and shape of the mental processes. These are rather small for such a large skull. The anterior process has a convex rugose surface, roughly elliptical to oval in outline, 40 mm. long by 23 wide, separated from the body of the ramus by a narrower neck 14 mm. wide in front, but thinning out to an edge behind and curv- ing downward and outward. The posterior process is a low conical outgrowth, broad at the base, with blunt tip, and curving downward, outward and finally upward. Measurements. Type of A. Type of A. ■wanlessi scoUi No. I2S22. No. 10885. Skull length, condyles to incisor border 562 mm. 672 Width across muzzle at alveolus of p2 87 Width of rami of lower jaws back of anterior mental tubercles 69 66 Anterior mental tubercles, lateral extent 92-5 I57+ Posterior mental tubercles, lateral extent 163.5 227 Length of malar process below orbit 152.5 260 Width of process at narrowest point 70 88 Greatest width distally 80 115 Length of anterior process of temporal from glenoid cavity 82 Length of symphysis 125 173 Depth of jaw below pi 73 81 Depth of jaw below m3 85 116 Upper premolar length I44 ^76 Lower premolar length 151 192 Lower molar length 91.S 107 Diameter, upper canine at base of enamel, antero-posteriorly 29 Diameter, lower canine at base of enamel, antero-posteriorly 28 Diameter pi, antero-posteriorly 24 25 Diameter p4, antero-posteriorly 24 30 Diameter mi, antero-posteriorly 32 Z^-S Diameter pi, antero-posteriorly, alveolus only 20 28 Diameter p2, antero-posteriorly 28.5 36+ Diameter p3, antero-posteriorly 39-5 52 Diameter p4^ antero-posteriorly 34-5 39 Diameter ml, antero-posteriorly 30 32.5 Diameter m2, antero-posteriorly 22 35 Diameter mj, antero-posteriorly 28 39 476 SINCLAIR— ENTELODONTS FROM THE In preparation the skull and jaws have not been separated from their position in the matrix, so that the triturating surfaces of the teeth have not been exposed. The specimen shows interesting path- ological structures in the shape of battle scars which will be dis- cussed in a subsequent paragraph on the habits of entelodonts. ArchcBotherium mortoni Leidy. Five skulls of small entelodonts secured by the Princeton 1920 Expedition from the " turtle-oreodon layer " of the lower Oreodon beds in the drainage basins of Indian and Bear Creeks in Penning- ton County, South Dakota, agree so closely with Mr. Troxell's A. clavus clavus that, with his description before me, I can not sep- arate our material from his. Another specimen. No. 11009, from the lower Oreodon beds in Corral Draw, collected by Mr. H. F. Wells in 1894, shows remarkably close agreement with A. clavus darbyi Troxell, the few dififerences between them not being of specific rank in my opinion. None of this material, however, have I been able to separate from A. yn-ortoni. Although the type^ of this species is a fragment of the left side of the face, with pj and p^ in place, more complete skulls, originally in the collection of Dr. Owen, were later referred by Dr. Leidy himself to A. mortoni and beautifully figured,'^ constituting " heautotypes " ^ of the first order, of importance. These specimens lack both dependent and posterior jugal processes, but otherwise agree closely with the Princeton ma- terial, allowing a certain amount of variation in size for difference in age, sex and individuals. Whatever be the ultimate status of Mr. Troxell's species, I am disposed to refer all of our small entelo- donts from the Big Badlands to Leidy's A. mortoni. Mr. Troxell's figured specimen of A. clavus clavus lacks the tip of the cheek flange, and it is also indicated as missing in the specimen figured by Peterson^ and referred to A. mortoni. As this is com- plete in two of our Princeton skulls, I have illustrated it in the ac- companying figures (Figs. 7, 8). " Figured by Dr. Leidy in " Ancient Fauna of Nebraska," PI. IX., Fig. 3. 7 "Ancient Fauna of Nebraska," Pis. VIII., IX. * Schuchert and Buckman, Science, n. s., Vol. 21, No. 545, p. 900, 1905. ^ " A Revision of the Entelodontidae," Memoirs Carnegie Museum, Vol. IV., No. 3, Figs. 4-6, May, 1909. BIG BADLANDS OF SOUTH DAKOTA. 477 In No. 12529, found last summer by Mr. Wanless in the clays of the " turtle-oreodon layer " of the lower Oreodon beds in the valley of Indian Creek, Pennington County, South Dakota, a young skull Fig. 7. Fig. 8. Fig. 7. Archaotherium mortoni Leidy. No. 12529. Portion of left jugal seen from the outer side showing both the dependent and the posterior proc- esses, one half the natural size. Fig. 8. Archaotherium mortoni Leidy. No. 11440. End of the dependent process of the right jugal showing concavity of anterior margin and thicken- ing of distal end, one half the natural size. with both milk and permanent premolars in place and the third molar just appearing, the process is slender and thin, 8 mm. in max- imum thickness in the middle and about two millimeters thicker at the distal end. Transversely, it is 41 mm. at the widest part. In the second specimen, No. 11440, from the lower Oreodon beds at the head of Sand Creek, Nebraska, collected by Mr. J. W. Gidley in 1896, the tip of the process on the right side seems to have been injured during life, for the anterior margin is concave distally and the process ends in an expanded area with a rugose flattened face measuring 15 mm. vertically by 27 transversely. No comparison can be made with the corresponding structure on the opposite side, as this has been broken off. 478 SINCLAIR— ENTELODONTS FROM THE A. niortoni is represented by a larger number of specimens than any other entelodont in the Oreodon beds, especially in the zone of rusty caliche nodules in the upper part of the " red layer," from which came all the specimens of this species collected by the Prince- ton 1920 Expedition. Probably it will also be found to range down into the Titanotherium beds, but has not been identified with cer- tainty in the Princeton collections from that horizon. Apparently it does not occur in the Protoceras beds. Lower Jaws. That there were at least two entelodonts of large size in the present area of the Big Badlands during the deposition of the " turtle-oreodon layer " of the lower Oreodon beds is shown by two lower jaws secured by the Princeton 1920 Expedition in the valley of Indian Creek in Pennington County. The larger of these, No. 12550, retains the mental processes and agrees so closely in size and configuration of the jaw with the type of A. wanlessi that I do not hesitate to refer it to that species. The incisors, tips of the canines and crowns of p3 have been lost, but otherwise the dental series is complete (Fig. 9). The first premolar, measuring 21 mm. antero- FiG. 9. Archcrotherium wanlessi sp. nov. No. 12550. Crown view of the lower teeth of the left side, one third the natural size. posteriorly, is double-rooted, but the roots are so close together that the empty alveolus would probably be indistinguishable from that of a single-rooted tooth. The anterior premolars are not as widely spaced as in the type (c-pi, 6.75 mm.; pi-p2, 6.75 mm.; p2-p3, 5 mm.). P2 is a stout tooth with slight anterior and posterior cingula and a blunt cutting edge front and rear. P4 has a broad mammillated heel narrowing posteriorly and a strong anterior cingu- lum. The most peculiar feature of all is the presence of a single cusp, the hypoconid, on the talonid of m3, internal to which there is a mammillated cingulum-like edge with hypoconulid and entoconid BIG BADLANDS OF SOUTH DAKOTA. 479 undifferentiated from the rest of this structure, except for a small swelling which perhaps corresponds to the entoconid. Unfortu- nately, these observations have to be based on a single tooth, for the corresponding molar on the right side has the crown badly shat- tered. There is less marked contrast in length and width between mf and m2 than in the second lower jaw to be described, No. 12546, which, unfortunately, has lost the mental processes, but agrees closely with the dimensions given by Mr. Troxell for the paratype of Marsh's Arch Galaxias Platei Aplochitonidae: Aplochiton tceniatus Aplochiton zebra Aplochiton marinus Serranidse: Percichlhys Irucha Percichthys melanops Percilia Gillissi Per cilia Irwini Poeciliidae: Oreslias agassizii Lake Ascotan . . Chilian H- Austro-Chilian — ? Cu Cfl 622 EIGENMANN— ORIGIN OF FISHES OF THE will be coiisidered in a monograph on the fauna of Titicaca which is in preparation. The genera with representatives in New Zealand or Australia are marked *. The species found in both continents are marked f- The dry region between Copiapo and the Aconcagua is a region of leftovers. The Aconcagua and the region south to the Bio Bio may be termed Chilian. Here occurs one genus not found elsewhere, Nematogcnys, and here occur the genera Basilichthys, Percichthys, Percilia, Diplomyste that are peculiar to southern South America. It also contains, as visitors, several lampreys. The region from the Bio Bio to near A^aldivia is distinguished by the presence, in addition to most of the species of the central Chilian region, of Galaxias, Aplochiton, not found north of the Bio Bio, of Caragola, Valasia and Geotria, found occasionally northward. Most of these are genera also found in and about Australia and New Zealand. The genera Galaxias and Aplochiton while present form but a small, inconspicuous portion of the fauna. The region from Valdivia south to Puerto Alontt may be termed Austro-Chilian. In this region while Percichthys and other Chilian genera remain, the dominant genera are Aplochiton and the Australian Galaxias, Valasia, Geotria and Caragola. The facts that Caragola, Valasia and Geotria regularly live in the sea, that some species of Aplochiton live and spawn in the sea, and that some species of Galaxias spawn in the sea and run up the streams probably account for the presence of most of these in Australia and Chili without requisitioning an antarctic continent con- necting South America and Australia, warm enough to enable these fishes to migrate from one continent to the other by a fresh-water route. Summary. There is but one genus of fresh-water fishes in Chili that recalls the tropics. It is the genus Cheirodon widely distributed from Pan- ama to Buenos Aires. 22 La Calera, also including records of Valparaiso. 23 Including Santiago Market, Penaflor, Llo Lleo, Hospital and El Flor de Maipo. 2* Including Ensenada, Rio Pescado, Puerto Vafas and Abtao. 25 Including Casa Panque, Peulla and Salto de Petrohue. Proceedings Am. Philos. Soc. Vol. LX. No. 4. Plate Vlll uoiSsji uEiinO 1 U0l33J£ UOnjSUEJJ^ uojS^^ uBfiiq^-ojjsnv PACIFIC SLOPE OF ECUADOR, PERU AND CHILL 523 The genus Orcstias belongs to the highlands about Lake Titicaca and the desert of Death Valley, Nevada. The genus Pygidium pertains to the highlands of South America. Of the rest of the genera Ncmatogenys, Brachygalaxias, and Per- cilia are peculiar to Chili ; BasiUchthys, Hatcheria, Diplomyste, Aplochiton, and Percichthys are common to Chili and Patagonia; Gcdaxias, Velasia, Geotria, and Caragola are common to Chili and Australia or New Zealand. The Calle Calle basin, which includes Lake Rinihue, contains, as far as known, the richest fauna of any river basin in Chili. So great is the similarity of the Austro-Chilian fauna of Chili with that of Patagonia, that there can be no doubt of the common origin of the two faunas. Of the three forms of the genus Cheirodon in Chili C. GalusdcB found about the Bio Bio is most typical. Both the species north of this area and the one south of it have diverged from the typical form. Possibly this indicates that the connection of the Chilian Cheirodon with its Cisandean relatives remained longest near the Bio Bio basin. MEASUREMENT OF STAR DIAMETERS BY THE INTERFEROMETER METHOD. By F. G. pease. {Read April 22, 1921.) The idea of measuring the angular diameter of a fixed star by the method of interference of light beams was suggested by Fizeau in his report on the Bordin Prize to the French National Academy in 1868. Stephan spent the year 1874 examining all the brighter stars by this method with the 31.5-inch telescope of the Marseilles Observatory, and rightly found that the telescope was altogether too small for the purpose. The papers relating to this work will be found in Comptes Rendiis, LXVI., p. 1008, 1873, and LXVIII., p. 1008, 1874. Nothing further appeared on this subject until Michelson in 1890 published a masterly paper in the Philosophical Magazine, " On the Application of Interference Methods to Astronomical Meas- ures." He pointed out that the telescope itself need not be large, and that the results desired might be accomplished by the use of a double periscopic arrangement consisting of four small auxiliary mirrors placed in a frame on the end of the telescope. Designs for a periscopic attachment are shown by Michelson in his paper but his successful measures of the satellites of Jupiter with the 12-inch refractor of the Lick Observatory in 1891 were made with two apertures placed directly in front of the objective. Aside from this question of size, the interferometer was considered an instrument of the utmost precision requiring the best of optical conditions, and the belief was general that the disturbances of the atmosphere would probably be such as to prevent its successful use even if a large telescope should be built. After the 100-inch Hooker tele- scope had been completed and excellent results obtained with it at the full aperture of the mirror, Director Hale invited Dr. Michel- son to investigate the question of interference with this large instru- 524 PEASE— MEASUREMExNT OF STAR DIAMETER. 525 ment. Stephan had already found fringes with apertures separated by 25.6 inches ; Alichelson found the same result in turn, first with the full aperture of the 40-inch Yerkes Refractor, then with the 60-inch reflector at IMount Wilson and finally the 100-inch Hooker Reflector, even though the seeing was not very good. The im- mediate result was the application of interference methods to the measurement of double stars, and Anderson developed a method by means of which he determined the distance between the components of Capella with a very great degree of precision, it being impossible to do this by ordinary methods on account of the closeness of the companions to one another. The next step undertaken was to adapt the great reflector in accordance with Michelson's plan of 1890, by mounting four auxiliary small mirrors on a beam placed across the upper end of the telescope tube. Success attended its installa- tion and in August, 1920, the interference fringes obtained on Vega with an aperture equivalent to 18 feet were as easily seen as those at 6 feet. Meanwhile, Eddington, Russell, Shapley, and others had made calculations of the diameters of a number of stars based on estimates of their surface brightness, and their results indicated that a Orionis would be an excellent object for an attempt to measure the diameter. Merrill first examined the star with the apparatus used by Anderson in the measurement of Capella and found a definite decrease in the visibility of the interference fringes with the slits separated the full aperture of the mirror. An actual measurement of the diameter of a Orionis was then made by the writer on Dec. 13, 1920; a descrip- tion of the instrument and method is given below. Before describing the 20-foot interferometer in detail it may be well to recall a few of the principles of interferometry. Thomas Young found that two pencils of light from a point source, when brought together again, can be made to produce interference bands or "fringes." A pinhole in a screen A (Fig. i") in front of a candle will, for laboratory experiments, serve as a source of light. Light spreads from this pinhole in concentric spherical waves and IS intercepted by a screen B, having in it two pinholes equidistant from the axis so that AC = AD. These openings furnish the two pencils of light and interference takes place where the wave fronts 526 PEASE— MEASUREMENT OF STAR DIAMETER. intersect, say at a screen E. Having left B at the same instant, the two pencils arrive at the screen E on the axis at the same time, the crest or trough of one wave falling upon the corresponding crest or Interference of two light pencils. trough of the other wave, each thus reinfocing the other. At F , F are points on either side of the axis where the crest from one wave falls in the trough of the other; the result is the complete neutrali- zation of the one by the other (and the total absence of motion) and consequently darkness at that point. Between these two points there is a gradual change in intensity, so that one grades into the other. The observed result is a series of parallel bands, alternately bright and dark, lying on both sides of the axis, bright wherever the path difference from the screen E to the two apertures is equal to any number of even half wave-lengths of light as 2, 4, 6, etc., and dark when the number of half waves in the path difference is an odd number as i, 3, 5. No light is lost in the mutual action of the two pencils on one another; it is simply redistributed, and what is removed from the dark region is to be found in the brighter portion. Fresnel improved the method of observing the bands by setting PEASE— MEASUREMENT OF STAR DIAMETER. 527 two prisms of equal angle side by side as indicated in Fig. 2. Light from a source G passing through the two prisms arrives at a screen H, and here the same principle of crest on crest or crest on trough produces interference fringes. It should be borne in FRE5NEL BIPR15M, SOURCE 51PRI5M B = E>R16HT 5AND D^PARK 5AMD Fig. 2. Fresnel biprism. 5CREEN mind that light from two separate sources cannot interfere ; it is only two pencils of light from the same source that produce the phenome- non in question. As the size of the source of light is slightly increased, each point in it produces a series of concentric spherical waves and there are therefore at the screen a great many overlapping interference fringe patterns slightly displaced with respect to one another, which reduce the contrast between the dark and light bands. Without going into detail, it is found mathematically and experi- mentally that for a given distance between the slits there is a certain size of source for which this overlapping is complete, fringes are not visible and ordinary illumination takes place. As the source is slightly increased in size the fringes reappear much less conspicuous than before and then vanish again. In the application of this principle to the telescope, the wave front from a distant star is considered a plane although it is ac- tually a portion of a sphere. Each point of the star produces a wave which is inclined slightly to that from the central point. All these waves superimpose in apparently one wave front on the axis of the telescope and for a distance of a foot or two on either side. When the telescope is covered with a screen having two apertures 528 PEASE— MEASUREMENT OF STAR DIAMETER. fairly close together there appears at the focus of the telsecope a series of interference fringes very sharp and clear cut, superposed on the ordinary diffraction image (Fig. 3) of the star; this image Fig. 3. Diagram of star image showing diffraction rings and interference fringes. is present at all times, even though the fringes may not be visible. It consists of a central bright disk surrounded by alternate bright and dark rings, the relative brightness of which depends upon the size of the openings. In all cases, however, the outer rings are fainter than the central disk. As the distance between the slits in front of the telescope is increased, the portions of the wave fronts from any two points of the source passing through them are, owing to their mutual incli- nations, further apart and no longer in phase. Consequently over- lapping of patterns takes place at the focus and a diminution in the relative contrasts of the fringes ensues. As the slits in front of the telescope continue to be separated, a distance is reached where the fringes vanish altogether. It has been found that the angular diameter of an artificial star disk, uniformly illuminated, is equal to 1.22 X/h, where A is the wave-length of the light used and h is the distance in question. The full curve drawn in Fig. 4 represents the relationship be- tween the visibility or clearness of the fringes and the relative sep- aration of the slits for a given disk and color and it shows that the fringes are brightest when the openings are close together, that it decreases rapidly as the slits are separated and that it is zero when PEASE— MEASUREMENT OF STAR DIAMETER. 529 the ratio of A/a is 1.22. As the slits are still further separated the fringes reappear and disappear several times, but are always increas- ingly weaker. VI5I51UTY OF FRm6E5 FOR VARYlNa DISTANCE BETWEEN 5UT5 CIRCULAR D15^ DISK PAR^ENE\) AT EDGE RELATIVE. PI STANCE BETWEEN 5L1T5 Fig. 4. Visibility curves. It has been found for the sun that the brightness of its surface is not uniform and that it fades away towards the limb. The dotted line represents the manner in which its visibility varies as the dis- tance between the slits is changed, and indicates that a factor of 1.33 is to be used, instead of 1.22, for a type of star similar to the sun. There is no known star for which total disappearance of the fringes can be obtained with the aperture of the 100-inch reflector; a Orionis, as mentioned above, presented only a falling ofif of in- tensity at the extremities of the diameter of the mirror. Accordingly, for the actual measurement of star diameters Michelson and Pease designed a beam (Fig. 5) to carry the four auxiliary mirrors, following Michelson's plan of 1890. This is placed upon the end of the Hooker telescope and the observations are made at the Cassegrain focus, which has an equivalent focal length of 134 feet. The pencils of light from the star are reflected from the two outer mirrors, which are adjustable, to two inner 530 PEASE— MEASUREMENT OF STAR DIAMETER. mirrors. They then follow the ordinary path in the telescope, first to the great mirror, thence to the convex mirror, finally to a flat, which for convenience of observation brings the pencils to the focus at the side of the instrument. The bed of the cross-beam consists of two lo-inch steel channels 21 feet long with their flanges turned inwards, separated by sections Fig. 5. Twenty-foot Interferometer Beam on 100-inch Reflector — Diagram of Light Paths. of 12-inch channel and boxed on the lower side with 0.187-inch steel plate, all riveted securely together. Openings were cut where- ever possible to decrease the weight and the inner edges of the top flanges were planed true to o.ooi inch, the frame being supported in the position in which it was to be mounted on the telescope. The four mirrors are 6 inches in diameter, inclined at an angle of 45°, the outer ones facing upwards, the inner ones facing down- wards ; they are mounted on slides and the two outer ones, thus far moved by hand, are being equipped with screws driven by a single motor, to keep them equidistant from the inner mirrors. Since the inner mirrors are fixed 45 inches apart, the spacing of the fringes at the focus is constant and equal to 0.008 inch. Experience has shown that fringes of this size can be conveniently 'EASE— MEASUREMENT OF STAR DIAMETER. 531 examined with an eyepiece of one inch focus. After the beam is placed on the end of the telescope the inner mirrors are first ad- justed in the daytime by mounting a miniature lamp at the focus and observing its position, after reflection through the entire mirror system, as seen projected in the outer mirror when viewed from above the latter. Adjustment is made until the lamp apparently lies central in the outer mirror. At night a bar 45 inches long is placed across the fiat-mirror mounting near the focus, centrally across the axis and then by sighting upward, the outer mirrors are adjusted until the end of the marker is near the center of the small region over which the star can be seen reflected in the inner mirrors. Observa- tion at the focus now shows the star image lying somewhere within a. field 20 inches in diameter, and further adjustment of the outer mirrors places the two beams centrally in this opening and in coin- cidence with each other. To obtain a reference or zero image, the entire end of the tele- scope is covered save for two 6-inch openings, in addition to those of the interferometer mirrors, and the two admitted pencils pass over the ordinary course in the telescope and form an image at its focus. Usually the interferometer image is brought within a quarter of an inch of this image and both are viewed in the eyepiece simultane- ously. To obtain interference fringes the optical distance from the star to the focus along the two pencils must be the same. Experience has shown that it is very difficult to obtain this equality by simple motion of one of the mirrors along the beam. Compensation is accomplished by placing, about two feet within the focus, a double wedge of glass in the path of one pencil and a plane parallel plate of glass equal to the mean thickness of the wedges in the other path. The outer mirrors are first set equidistant from the inner mirrors by steel scales, then, observing at the eyepiece, one of the wedges is slowly shifted so as to increase or decrease the equivalent glass thickness until a point is reached at which the fringes appear. As light travels faster in air than in glass we must add glass if the path is relatively too long or take it out if too short. If glass thick- ness must be added in moving from the zero fringes to the reflector fringes, the path is too short ; to equalize the wedge is backed off and PROC. AMER. PHIL. SOC, VOL. LX., U, MARCH. 20, ig22. 532 PEASE— MEASUREMENT OF STAR DIAMETER. the mirrors on this side of the interferometer beam separated by an amount indicated by the distance the wedge has been shifted. The angle of the prism is about lo degrees and a linear motion of the prism of i mm. corresponds to a path difference of 0.09 millimeter. If glass be subtracted in moving from the zero fringes to the re- flector fringes, the mirrors must move closer together in order that both sets of fringes may appear in the eyepiece at the same time. The wedge is shifted by means of a rod; one turn of this rod moves the wedge 0.5 mm. and compensates for 0.045 rnm. of air path. Fringes can be observed throughout one-third of a turn of this rod, corresponding to a path difference of about 26 light waves. Having in mind the operation of the interferometer and the ap- pearances to be expected, we will turn to the observations made with the telescope in operation. Several days were spent by the writer in November, 1920, in preparing the beam for operation, but as several important alter- ations were necessary, actual work was not begun until December. On December 13, with the outer mirrors at 10 feet separation the instrument was put in complete adjustment by observing 13 Persei andy Orionis, both stars known to have diameters much smaller than can be measured with this instrument. This adjustment meant that, upon observing at the eyepiece, both the reference and the interferometer images were seen with fringes superimposed upon them. Upon turning to a Orionis the " zero " fringes were seen but no glimpse could be obtained of the interferometer fringes. Turning to a Canis Minoris both sets of fringes were visible si- multaneously, indicating that the instrument was in complete adjust- ment and that the disappearance of the fringes on a Orionis was real. It may be thought that reliance cannot be placed upon a null measurement ; there is no reason for this assumption as any in- strumental flexure or atmospheric disturbance requires but a very slight adjustment of the wedge, and at this time the seeing was very good. Dr. Anderson was present on this night and checked the writer's observations. Further observation of a Orionis was not attempted on the succeeding nights in December because the seeing was poor, as was indicated by a reduction in the visibility of the zero fringes; consequently observations were made on a Ceti, a Tauri, PEASE— MEASUREMENT OF STAR DIAMETER. 533 and p Geminorum, with the outer mirrors at 13 feet separation. In February, with mirrors approximately 16 feet and 19 feet apart, observations were made on a Orionis, a Tauri, fi Geminorum and a Bootis. The seeing did not warrant drawing any definite conclusions except that fringes were seen at all points for /? Geminorum. This in- dicates that an interferometer with a base longer than 20 feet will be required to measure its diameter. Fringes were seen for a Tauri at 13 feet, at 19 feet, and in March at 14.5 feet, the visibility becoming less with increased separation of the mirrors. Additional measures will be made at points between 16 feet and 18 feet to see whether the fringes disappear as calculations indicate they should. For a Bootis the fringes were much reduced at 16 feet and could not be seen at 19 feet ; the seeing was bad, however, and the observation in- decisive. Many stars have been used for checking the instrument ; among them S Tauri, y Orionis, a Canis M:noris,a Geminorum, and iq Bootis. All have shown strong fringes at 19 feet. Experience has shown throughout that better seeing is required for this work than was at first supposed, particularly when the mirrors are widely separated and the visibility of the fringes is approaching the point where they disappear. Change of seeing at these times will cause the fringes to flicker in and out, but a check is always at hand, for at the same time the visibility of the " zero " fringes is also reduced. On some occasions in bad seeing the zero fringes will remain fixed, but the interferometer fringes will shift to the side of the image, probably because small sections of the wave front become in- clined to the general wave front, due to varying atmospheric den- sities. Having determined the distance at which the fringes vanish, we find the angular diameter of the object from the expression a=i.22A/& where a is the angular diameter in radians (206265"), A is the effective wave-length (in cm.) of the star or that portion of the spectrum which is most predominant in forming the fringes seen by the eye of the observer and h is the distance apart of the mirrors (in cm.) ; Anderson has found, in connection with his work on Capella, that the effective wave-length of a solar type star is 534 PEASE— MEASUREMENT OF STAR DIAMETER. 5.5 X lO"^ cm. and it is assumed for a Orionis that the value of the wave-length is 5.75 X io~^ cm., a true value for which must be found by direct experimental work. The value of b found for a Orionis is 121 inches (±10 per cent.). The approximate value then for the angular diameter of a Orionis is .047". The agree- ment of this value with those obtained by calculation, which range from .031" to .051", is striking. If there is a falling off of intensity toward the limb, as in the case of the sun, Michelson finds this value would be increased by 17 per cent. Several determinations of the parallax have been made for a Orionis and from these its distance b may be found from the expression 2062657? ., a = miles, TT where 7^ = 93,000,000 miles, the distance of the earth from the sun, and tt is the value of the parallax in seconds of arc. Measures of the parallax thus far obtained are: Adams, .013"; Yale, .032"; .'Schlesinger, .016"; Yerkes, .022", the weighted mean of which is ,020". From these values the distance is about 9.6 X 10^* miles. -Knowing the distance and the angular value of the star, its linear diameter is found to be 218 X 10° miles. This value is not a definite figure but only an approximation ; but in any case it means that the diameter of the star is several times the distance between the earth and the sun and several hundred times the diameter of the sun itself. The work is being continued until the half dozen stars which calculations indicate as measurable with the twenty-foot beam have been investigated. Most of these are stars having late type spectra. In order to measure diameters of early type stars such as Sirius and Procyon a much longer base is needed. For this work an interferometer with mirror separations as great as 50 or 100 feet has been discussed but it is felt the present instnmient should be used to its limit and many data accumulated, particularly regarding seeing conditions with the mirrors widely separated, before anything definite is attempted in the way of a larger instrument. Mount Wilson Observatory, Pasadena, Calif. Proceedings Am. Philos. Soc. Vol. LX. 1921, Plate VIII t2 i THE PEOPLING OF ASIA. (Plate VIII.) By ales HRDLICKA. (Read April 21, 1921.) The peopling of Asia, as may well be appreciated on reflection, constitutes one of the greatest problems of anthropology. The solution of this problem could not have been approached with any great hope of success until lately, for it involves in no small degree the peopling of the whole world. Even now many of the details are lacking or obscure ; but through collateral as well as direct research sufficient light, it seems, has by this time been obtained for the possibilty of our attempting, with due reservations, of some general deductions. It is quite certain that these deductions are bound to receive sub- stantial modifications as anthropological knowledge of the Asiatic countries and especially that of early man accumulates ; they can for the present be little more than working hypotheses ; nevertheless, what will be here outlined is supported by many facts of consider- able weight. Looking at the subject of the peopling of Asia with due per- spective, we may readily come to the first definite conclusion, which is that the vast continent could not have been peopled either from the north or the east ; and that consequently it could only have been peopled from the south, southwest or west. From this it logically follows that the eastern, central, northern and northeastern Asiatic populations must have been ethnic extensions from other parts of the continent. And as all these populations possess certain charac- teristics in common which enable science to classify them as " mon- goloid," it is further plain that they could not have come from more than one direction or from more than one ancestral land or source. 535 536 HRDLICKA— THE PEOPLING OF ASIA. These mongoloid populations comprise collectively considerably more than one half of the total population of the Asiatic continent, and if we can trace their derivation we shall have solved a very important part of the problem of the peopling of Asia. The first question that obtrudes itself on this attempt is whether or not these mongoloid peoples were really the first inhabitants of the countries which they occupy today. To this it may be answered that there is no valid evidence whatsoever to the contrary. The various branches of the mongoloids are^ it may be safe to assume, not of equal antiquity; there are older and younger branches of the stock; but outside of some marginal or recent mixtures none of these peoples show any evidence of having fused with any geolog- ically more ancient or racially different man in the regions which they hold as their own. Added to this we have the corroborative evidence of a total lack so far of substantiated remains of early man in these territories. It is true that relatively small parts of Asia have as yet been thoroughly explored ; but the archeological and related explorations by the Russians, Japanese and others represent already a large amount of labor with completely negative results so far as the presence of early man is concerned in the lands oc- cupied by the mongoloid people. A few isolated supposedly " pal- eolithic" implements and a problematical piece of a sacrum, believed to be ancient by a few of the Japanese, are insufficient to sway the balance. The natives, particularly in China, have long been in the habit of collecting and selling everything in the way of old and odd objects, including stone implements, and examples of the latter may not seldom be found — at times nicely mounted — in the markets of the Chinese cities; but they have never brought, so far as could be learned by interested foreigners, any implements or objects that could be identified as geologically ancient or pre-mongoloid, nor have any other indications of pre-neolithic sites been anywhere discovered in these countries. There is, therefore, to this day no evidence of any earlier man in all this vast mongoloid region, which comprises over four fifths of Asia, or the whole territory to the east of the Urals and the Caspian and to the north of the Himalayas, be- sides the great islands. Where did these mongoloid peoples come from to their present HRDLICKA— THE PEOPLING OF ASIA. 587 homes? Their traditions, such as they are, lean generally to the west or northwest. Nothing points to a possibility that they might have come across the great mountain ranges from the south; and they did not come along the coast or by the sea from the southeast, for the Malayan people of these territories, though mongoloid, are according to all indications only extensions of the stock into these regions from farther north. Everything points to the probability of the invasion having proceeded from the north southward. We have a very valid evidence for this in the presence in these regions of the scattered Negrito. The Negrito is a weak race physically as well as mentally. In both respects he is decidedly inferior to the Malay. His wide scattering over the islands of southeastern Asia with traces of his presence over a considerable part of the southern stretches of the mainland, indicates plainly that the Negrito must at one time have occupied these regions unopposed, for he could not possibly have prevailed over and penetrated though any stronger people. It was only subsequently that he was partly annihilated, partly mixed with the yellow-brown Malays and partly scattered by them into the mountains and least desirable places, as they advanced into his territory from the north. And this must have been about the same time that the streams of the ancestors of the present Hindu popu- lation reached and settled in India, breaking up the Negrito in that sphere and preventing the Malay from extending also into that territory. In Hither India, in Persia and in Asia Minor there are no traces of any mongoloid population except such as can be ac- counted for by border extensions or through historic introductions. We have therefore nothing substantial on which to base a pos- sible origin of the mongoloid peoples in the southern or south- western parts of Asia. The mongoloid peoples, we have now seen, cannot be regarded as having evolved in their present abodes — for nothwithstanding certain speculations there is not a trace of any evidence and very little probability that there has ever been anything in the central or northwestern parts of the continent from which man could evolve; and there are no indications that man has lived in these vast regions except in the relatively recent post-glacial period. The mongoloid people, it is quite plain, did not originate where 538 HRDLICKA— THE PEOPLING OF ASIA. they are. They could not possibly have come from the east or from the north, and we have just seen that there is no likelihood of their coming from the south. This leaves but one broad avenue of approach which is that from the west through the great flat lands to the north of the Himalayan and central Asiatic mountains. And this connects the ancestors of the mongoloid peoples inevitably with the prehistoric westernmost Asiatic and through these with the old European peoples ; while chronologically they can only connect, judging from the evidence of their main physical traits, with the late Paleolithic and the succeeding periods. So much for the present for the mongoloids ; and with these out of the way there remains to be considered only the peopling of southern and western Asia. This part of the problem is again plainly divisible into that relating to the presence of the Negrito, and that of the Mediter- ranean, Semitic, Aryan and mixed populations. According to all indications the Negrito was the first human inhabitant in any numbers of a large proportion of — if not of the entire — southern and southeastern coasts of Asia and of the neigh- boring as well as some more distant islands, reaching to New Guinea and possibly even to parts of Australia. Whence he came, how he came so far, and how he succeeded in occupying such extensive regions, including what now are far separated islands, are largely questions for future determination ; but the facts show that all this has been accomplished. It now seems most probable that the Negrito is racially con- nected with the Central African small black man; and that he ex- tended over the great territory he once covered mainly over lana, and that either over Arabia and by scouring the sea coast, or over land extensions and connections which may have since disappeared. Still he may have become enough of a navigator to reach at least some of the islands where he left his traces over the seas — the blacks of Micro- and Melanesia who have considerable Negrito blood have shown themselves to be quite capable of that. That the Negrito did not originate separately from the African blacks is amply evident from the many characteristic resemblances he bears to the latter ; and that he did not originate in Asia and then cross HRDLICKA— THE PEOPLING OF ASIA. 539 to Africa we may decide on one hand from his parentage to the Negro and on the other from the improbabiUty of his succeeding in penetrating, weak as he was, from elsewhere into the heart of the African continent. In his extension eastward and southward the Negrito may or may not have met with other human beings. He may possibly have met with some representatives of what is now commonly referred to as the " Australoid " type of man. Certain it is that he met with no large numbers, for these would have effectually checked his extension. Also, wherever better preserved, the Negrito shows still a pure type, without any signs of ancient admixture with such heterogeneous population. It seems most Ukely therefore that the territories over which the Negrito succeeded in extending were devoid at that time of other population. This enabled the small, poorly equipped black man, advancing always in the direction of better prospects and least resistance, to cover in time the enormous area over which we find his remnants to this day. Just when this happened and how long it took, can scarcely be conjectured; but it was not very long, speaking in the geological or evolutionary sense, for the Negrito is not a geologically ancient type, besides which he has modified but little in his own way since his separation from the mother stock of blacks. These deductions concerning the Negrito incidentally raise one great question, which is that about the place of man's origin. It has so far generally been believed that the cradle of mankind lay somewhere in southeastern Asia or what are now the adjoining archipelagos, for it is these regions in which live to this day two of the anthropoid apes, in which existed once, as shown by the Sivalik finds, still other anthropoid forms, and which gave us the remains of the Pithecanthropus, a being that so closely approaches to the ideal " missing link," half-ape, or half-man. These facts, together with the existence of apparently favorable environment for further evolution in the direction of man in the regions under con- sideration, have produced a powerful predilection in scientific minds in favor of these regions as the site of man's evolution. Nor is anyone in a position to-day to gainsay the possibility that the early phases of human evolution have taken place in what is now ^Malaysia 540 HRDLICKA— THE PEOPLING OF ASIA. and southeastern Asia. The existence there of the Pithecanthropus is undeniable evidence that whatever may have happened subsequently or elsewhere, far-reaching steps in the direction of man once were taking place in these parts of the world and reached, to at least half of the way. But after Pithecanthropus there is a great void, and the next beings in the line of man's ascent are found far ofif, in western and southwestern Europe. The Heidelberg Alan, judging from the great massive jaw, was still an exceedingly primitive human being — perhaps hardly yet deserving the term human ; yet he lived already in western Europe or over 7,000 miles away from Java, the home of the Pithecanthropus. It is true that according to our cal- culations there must have elapsed between the period in which lived the Pithecanthropus and that in which lived the Alan of Heidelberg at least 150,000 years and possibly a good deal over; but the task remains of bringing such primitive beings over such a distance and in that particular direction. Still such a feat cannot be said to have been impossible. There is no lack of examples of a similarly great and even greater spread of various animals. It is essentially a question of numbers, food and time. But why the direction? It would seem that under conditions propitious enough to evolve man in southeastern or southern Asia he would have found these regions suitable for considerable local multiplication, and for the peopling of the whole of southern Asia if not the entire continent. But so far there is a complete lack of evidence of any such multi- plication, and there is a substantial certainty that early man was not able to people the rest of Asia. It is plain that there is a great gap in our knowledge at this very important stage in man's history, over which we are still obliged to pass by mere speculation. Such speculation involves in the main two alternatives. The first is that man originated in southeastern Asia ; that for some reason — doubtless environmental — he was prevented from spreading northward; but that he spread relatively rapidly westward, until he reached the western limits of the then habitable parts of Europe. His route may have led over the then connected Asia Alinor and the Balkans, or along the HRDLICKA— THE PEOPLING OF ASIA. 541 southern shores of the ^Mediterranean ; and from causes unknown he appears never to have acquired a lasting foothold or any nu- merical importance in the regions from which he came or which he traversed. The last proposition, if correct, would be nothing to wonder at, for we have good evidence of the fact that until towards the end of the glacial times man had not been able to reach any numerical importance even in Europe. The second hypothesis would be that the successful line of man's ancestry originated not in Asia but in Africa, where we also know of fossil anthropoids and where there live to this day the two anthropoid apes nearest to man, namely the chimpanzee and the gorilla. Unless man's origin should be regarded as a pure accident, which seems unjustifiable, it may well be assumed that conditions such as favored the differentiation from anthropoids towards man in one locality existed also in other regions. The assumption of man's origin in Africa would imply the conclusion that the progeny of the Pithecanthropus had not reached the stage of man and has become extinct near to where it developed ; while the man originat- ing in Africa could, over the land connections at Gibraltar and elsewhere, much more readily have reached southwestern Europe, which is the site and cradle of the main stages of his further development. Some difficulty in these connections seems to be presented by the Australians, and the " australoid " type wherever met with in the seas off southeastern Asia. Due to the occasional presence in this type of certain primitive physical features such as the protruding brows and jaws, the type as a whole has come to be looked upon as something very primitive and very ancient. Some of the earlier anthropologists would doubtless have found little difficulty in ac- cepting the notion that the "australoid " man may be a local de- scendant of the early man of southeastern Asia. But to this there are valid objections. The " australoid " man is not a uniform type ; he is admixed more or less according to localities with the Negrito, and possibly even with some of the Indo-Europeans. When we discount these admixtures, there is left what in no wise could be regarded as a separate species or even a distinct variety of man, but a man in all essentials like the western man of say ten to twenty 542 HRDLICKA— THE PEOPLING OF ASIA. thousands of years ago. He represents a type such as must have been common in Europe and the rest of the inhabited parts of the Old World from the Aurignacian to the earlier Neolithic times. That such similarities could have developed independently in two environmentally so widely different regions as man's western habitat of that time and the tropical and semi-tropical seas and lands off southeastern Asia is, to say the least, very improbable. But the only alternative is that the " australoid " man is the same as the later prehistoric western man, that he is derived from the same body, and that he has reached Australia and wherever else he may have existed in relatively late times by extension or migration. He may well represent a strain of fairly late man of southwestern Asia or northern Africa, which had penetrated into Malaysia and Austra- lia before or perhaps through the Negrito. In addition to the " mongoloid " and " australoid " populations of Asia and the south seas, there are to be considered the actual peoples of southern and western Asia including Asia Minor and the Arabic peninsula. These seemingly so complex populations may in reality be read- ily classified and accounted for. They are essentially recent and mixed populations. The elements entering into their composition in the order of their importance are : the Mediterranean, the " Sem- itic," the " Aryan," the Negrito and the Yellow-Brown ; to which in the north are added the transitional (white-mongoloid) Tatars and Turkmen. Among the Semites, both actual (Beduins) and the old (Palestine, etc.), there is also some admixture through Egypt and Ethiopia of the Sudanese and East African Negro. In Galatia, Phrygia and some other localities of Asia Minor and in the sub-Caspian regions finally, there are small groups of people of direct connections with or derivation from known peoples of Europe. According to growing evidence the southwestern and western- most portions of Asia have been peopled by extensions from Europe and possibly Africa during the later Paleolithic and Neolithic periods ; and they doubtless have received wave after wave of ex- tension or invasion of prehistoric and early historic peoples from over the Balkan Peninsula, the Caucasus and from the Caspian- Aral-Turkestan regions. These peoples annihilated, admixed with HRDLICKA— THE PEOPLING OF ASIA. 543 or drove to least desirable spots whatever there may have been of the Negrito and of the " australoids," except in Australia; in the east they impinged upon the yellow-brown man coming from the north and stopped him, mixed with him along the lines of inter- penetration, and admixed with him invaded and peopled parts of the Philippines, part of Micronesia, and the Polynesia. Resuming now the subject of the peopling of Asia, it may be briefly outlined as follows : The question of man's origin in southeastern Asia or the adjoin- ing lands is still doubtful ; man may possibly have originated in some more western portion of the northern or semi-tropical belt. No trace of man corresponding in type and antiquity to the Heidelberg or the Neanderthal Man of Europe has as yet been discovered in any part of Asia, and it may be regarded as more than doubtful whether these early forms could have reached these regions. Judging from some archaeological facts and from the presence of the " australoid " type in the south seas, it seems prob- able that western man reached these regions at a period correspond- ing to the later Paleolithic epoch from Europe, westernmost Asia or northern Africa. All that part of the continent of Asia north of the Himalayas was unpeopled until, say, twenty to fifteen thousand years ago, An extension northward of any possible earlier man from the south would have been prevented partly by the mountains and partly by a semi-desert condition of the great loess areas of China. ^ The earliest people of whom there is any evidence who reached and peopled the southern coasts and as yet undetermined parts of the Asiatic mainland and what are now the ofif-lying islands, were the Negrito of probably African derivation. Not long before or after the Negrito there was an extension into the South Seas of the " australoid " strain of western popula- tion. The rest of the population of southern Asia is the result of wave upon wave of extension and invasion from the west, north- west and the northern inland regions, with subsequent admixtures. 1 That such a condition of these vast regions did exist during the earlier part of the Quaternary, is attested by the results of paleontological and geological researches of Dr. J. G. Anderson, of the Geological Survey of China. 544 HRDLICKA— THE PEOPLING OF ASIA. About the same time or but shortly after the Negrito reached southern Asia there was taking place a larger movement of yellow- brown population from the more westward drying up regions into eastern Asia and over southern Siberia. This population gradually spread over the whole Asiatic continent north of the Himalayas and, multiplying, began to extend in all directions — through the Negrito area to the south and southeastward, peophng the south- eastern parts of the continent with Malaysia ; it peopled the Nippon Archipelago ; and as food was diminishing or pressure behind be- came greater, it extended along the coast northward to the north- eastern limits of the continent, whence it passed on gradually and repeatedly, over the various practicable routes, still further east- ward, reaching and eventually peopling America. Still later the surplus of this brown population in the south, admixed already to some extent with the Negrito as well as with a more important contingent of the more recent near-white-man types from the west, peopled Micronesia and Polynesia. Meanwhile the older and darker yellow-brown wave was, according to all indications, fol- lowed by successively lighter, though still yellow-brown waves of people from the west, which, penetrating among and mixing with the old population, gave us such actual ethnic units as the Chinese, Japanese, Koreans and Tatars. Remnants of the oldest brown wave are still discernible in the living population in many parts of this vast region, particularly in Mongolia, Thibet, the Saghalien and the Formosa Island, as well as in parts of Siberia. All these yellow-brown people could have had but one far- back parentage — that of the early Neolithic western Asiatics, and with these that of the Paleolithic Europeans. They unquestion- ably must proceed from the same source as the white race, but they separated from the mother stock before or during the earlier parts of the period of its differentiation into the white Europeans. A word at the conclusion about the origin of the Negrito and Negro. They too, upon a critical examination, present ample evi- dence of original identity with the old Mediterranean and European stock. They are no separate species, and the main physical differ- ences between them and the rest of mankind are but skin deep. Their forebears must have separated from the general parent HRDLICKA— THE PEOPLING OF ASIA. 545 stock at a distant and yet not excessively distant period — not earlier in all probability and rather later than the second half, the latter Neanderthal part, of the Paleolithic period ; and passing deeper into Africa they eventually became modified through environmental influences into the smaller and the taller Negro. The cradle of humanity tJierefore, according to present indica- tions, was essentially southwestern Europe, with later on the Med- iterranean Basin, western Asia, and Africa. It is primarily from Europe and secondarily from these regions that the earth was peopled. And its peopling, so far as can now be determined, ap- pears on the whole to be a matter of comparative recency. That earlier man was not able to people the globe before was in all probability due to his insufificient efifectiveness. Up towards near the end of the glacial times and his old stone culture, he had evidently all he could do to preserve mere existence. Only after he advanced mentally and in culture so far that he could control his environment sufficiently to secure a steady surplus of births over deaths was he able, and in fact became obliged, to extend over other parts of the earth. The cause of man's peopling the world, it may well be assumed, was not a mere wish to do so, but chiefly necessity arising from growing numbers and correspondingly diminishing supply of food. It was this in the main which led him to spread ; it was this which eventually led him to agriculture. And his spread — for it was a spread rather than " migrations " — followed the three great laws of spread of all organized beings which are : ( i ) movement in the direction of least resistance; (2) movement in the direction of the greatest prospects; and (3) movement due to a force from behind, to compulsion. The peopling of Asia is a key to the problem of the peopling of all that part of the world lying east and southeast of that continent, in particular of the Americas ; and even our imperfect knowledge of the events shows how vain it would be to expect to find in this latter part of the world traces of man of any great antiquity. PROC. AMER. PHIL. SOC, VOL. LX., JJ. MARCH. 20, I922. AN ELECTRO-CHEMICAL THEORY OF NORMAL AND CERTAIN PATHOLOGICAL PROCESSES. By G. W. CRILE, M.D. {Read April 23, 192 1.) That electro-chemical processes play an important role in living processes has long been held by bio-chemists and bio-physicists. Du Bois Reymond held that the action current is an electric current; and Crehore and Williams have put forward strong evi- dence in favor of the identity of the action current and electricty. Burdon Sanderson demonstrated that motor plants such as venus' fly trap and the sensitive plant show electric variations during their specific response to stimulation. Waller extended these obser- vations and called these electric variations " blaze currents of action." Bose'has found evidence of the identity of vegetable and animal activity, and having demonstrated by most ingenious ex- periments that the activities of plants are attended by electrical phenomena he concludes that electricity plays an important role in vital phenomena. Piper showed that sound waves originate an electric current in the auditory nerve of fish ; and Einthoven and Jolly confirmed the discovery made by Holmgren in 1866 that when light falls on the retina, an electric current is produced in the optic nerve. Gotch and Horsley have shown that during electric stimulation of the cortex, causing muscular action of the leg, a sustained electromotive force is present in the spinal cord during the con- tinuance of the stimulation. Not only did they demonstrate an electric wave, but they were able to pick out the conduction paths in the spinal cord over which this wave travelled, showing that the current found its way along the intricate pathway from the cortex to the muscles, passing over the various synapses with accuracy. Gotch and Horsley also demonstrated a persistent negative variation in the cord during electric stimulation of the Rolandic area. 546 CRILE— THEORY OF PROCESSES. 547 Nernst supposed that the electrolytes in the axis cylinder lie within membranes which are impermeable to certain ions; and that when an electric current is passed through a nerve, it is conveyed by the dissociated electrolytes, causing an accumulation of positive ions at one point and of negative ions at another: when the con- centration reaches a certain point, excitation occurs. A, V. Hill supports Nernst's general theory; and McClendon, Bayliss, Lillie and others take a similar view. Lillie has developed an analogy between the local electrical effects in metals and in living tissue, as exemplified by the passive state in metals and in nerve conduction. He considers that the phenomena in each case are due to the forma- tion of local electrical currents, resulting in the case of metals from local changes in surface tension ; and in nerve tissue from local changes in the permeability of the surface film or membrane. In each case the phenomena are subject to rapid "spreading" as a result of electrical polarization, the rate of " spreading " depending upon the rate of the reaction which initiates it. He states that in nerve tissue " a relation of direct proportion should thus exist be- tween the electric conductivity of the medium and the rate of propa- gation of the excitation wave." By microchemical methods MacCallum showed that since it contains a greater concentration of electrolytes, the axis cylinder is a better conductor than the medullary sheath. Meyer found that alteration in the concentration of electrolytes in the seawater in which the nerve of a marine animal was sus- pended altered equally the rate of electric conductivity of the water and the rate of nerve conduction. Tashiro has demonstrated that as the result of the passage of the normal action current down a nerve fiber, carbon dioxid is given off and oxygen is consumed. He has shown also that when a nerve is stimulated by electricity, the same phenomena are ob- served; i.e., carbon dioxid is given off and oxygen is consumed. jMoreover, whether in the case of the normal or of the eletcrical current, no heat is produced. A. V. Hill has confirmed Tashiro's findings as to the absence of heat; and Benedict was unable to demonstrate heat resulting from mental activity. Following the lead offered by the above-cited investigators and by 548 CRILE— THEORY OF PROCESSES. many other bio-physicists, we propose to offer further evidence in support of the hypothesis that man is an electro-chemical mechanism, as gained, first, from a general consideration of the structure and arrangement of the central nervous system; second, from laboratory findings ; and third, from observations and experience in the clinic. Structure and Arrangement of the Central Nervous System. The nerve cell consists of two highly differentiated parts, the nucleus and the cell body, which are separated from each other by a semi-permeable membrane. Sir Frederick Mott has "shown that the so-called Nissl bodies during life are globules covered by a lipoid film on which oxidation occurs. The nucleus and the cell- body cannot be sharply stained with the same stain, but differential stains are required. This fact indicates a difference between the composition and function of these two parts of the cell. Two colloidal solutions, one acid and the other neutral or alkaline, separated by a semi-permeable membrane, constitute a battery. The nerve cell, therefore, is a battery. Electricity travels from areas of higher to areas of lower potential. In the animal organism the nerve-cell batteries are connected by microscopically fine pro- longations of the nerve cells. Constant discharge of the artificial electric battery used in the laboratory is prevented by " make and break " keys; constant discharge of the nerve-cell battery is pre- vented by a " make and break " mechanism called a synapse. According to this hypothesis, the unit structure of animals con- sists of a nerve-cell battery (or electric cell), its prolongation or nerve fiber to the synapse or key, the connecting nerve fiber from the synapse to the muscle cell or gland, by whose discharge upon receipt of an electric current from the nerve-cell battery, action is effected. Electricity alone can close the synoptic " key," complete the circuit and fire the " charge." General and Laboratory Observations of the Electro- Chemical Reactions of the Organism. If we are correct in assuming that each nerve-muscle and each nerve-gland unit is a part of a biologic electro-chemical system, all of which collectively make up the organism, then we would expect CRILE— THEORY OF PROCESSES. 549 that the nerve-cell battery like other batteries could not create electricity continuously, but would require periods of rest for re- charging. These periods of discharging and of recharging are re- spectively periods of consciousness and of sleep. We know that fatigue and death result from prolonged deprivation of sleep. The changes within the brain and the liver cells are evidenced by swelling; by a striking diminution of differential stainability and, as we shall show later, by changes in their electric conductivity. We would expect that the fatigue (weariness) produced by activity would be restored by sleep. That this is so is shown by common experience and by histologic and conductivity findings. TJ^e principal parts of the cell are (a) water; (b) salts in solu- tion; (c) selective semi-permeable membranes. Water. — Life is coextensive with water; water is the vehicle in which life is suspended. Perhaps the strongest evidence in favor of the electro-chemical theory may be found in a consideration of the properties of water. Of highest significance is the fact that water is a non-conductor of electricity. This property is essential for the accumulation of electric charges ; it is essential for the for- mation of colloids. Colloids are essential to life. Water is the greatest solvent. Water is the greatest catalyst, hence water is the vehicle best adapted for the storage of energy. Suspensions and solutions are electrical processes. We have therefore as the physical basis of every cell a non-conducting medium in which are suspended electrically charged particles. In free colloids or in solutions, the electric energy is evenly diffused. To create, to store, and to discharge energy for adaptive purposes, an additional struc- ture is required. This structure consists of the lipoid selective semi-permeable membranes surrounding the cell as a whole, sur- rounding the nucleus, and surrounding the spherules lying in the layer compartments. Why were the membranes evolved to be selective semi-permeable membranes ? So that oxygen and activating agents may enter, in order that potential energy may be created within the cell ; and that there may be a suitable riddance of damag- ing compounds. The activity of the nerve cell is dependent in large measure upon oxidation. W'e would expect that the energy of the cells 550 CRILE— THEORY OF PROCESSES. would be destroyed should the water in the cells become and remain saturated with acid salts, so that the essential difference of potential between the nucleus and the cell body would be lost ; and that this would happen unless continuity of the supply of fresh water is assured. We know that life ends within a few days when the body takes in no fresh water. We would expect that the electric impulse could reach and move the muscle only if the conductivity of the conducting paths — axis cylinders, spinal cord — were greater than the conductivity of the brain, and the conductivity of the muscles greater than the con- ductivity of the nerves. This point has been tested in 436 animals and in every instance, in animals which were conscious at the time of their death, the conductivity of the spinal cord was greater than that of the brain ; the conductivity of the muscles was greater than that of the spinal cord. We would expect to find that the greatest activity of the or- ganism is coincident with the highest conductivity of the brain, the spinal cord and the muscle. Under conditions of heightened activity produced by artificially induced iodism we found the con- ductivity of the brain, the spinal cord, and the muscles and of other organs and tissues to be markedly increased above the normal. Likewise, the immediate effect of the injection of adrenalin was an increase in the conductivity of the brain. Likewise, the first effect of physical injury, of emotional excitation, of the injection of toxins is an immediate increase in the conductivity of the brain. Direct measurements of the temperature of the brain after the injection of adrenalin demonstrated increased activity evidenced by a rise in temperature. Conversely, one would expect that decreased oxida- tion would be attended by decreased conductivity and by decreased activity of the nerve cells. We found that the temperature of the brain was diminished after adrenalectomy, after hepatectomy, by hemorrhage. In accordance with the electro-chemical theory we would expect that bodily activity would be reduced by diminishing the dift'erence in potential in the cells. This is evidenced by the effects of the direct production of acidosis by the injection of acid, or of acidosis resulting from any excessive activity such as prolonged or extreme CRILE— THEORY OF PROCESSES. 551 exertion, intense emotion, etc. That the difference in potential be- tween the nucleus and the cell body is decreased or destroyed in such cases is revealed by the microscope ; and apparently by con- ductivity measurements. Since the activity of the organism must change to meet the vary- ing demands of the internal and of the external environment, we would expect to find created within the organism a substance or substances to increase activity, and that the production of these secretions would be controlled by the nervous system, so that the control of varying conditions of activation of the organism may be automatic. The adrenals control oxidation ; the thyroid by control- ling electric conductivity governs the rate of metabolism, and these organs are controlled by the nervous system. Since the activity of the organism is accompanied by the produc- tion of acid by-products, we would expect the presence in the or- ganism of an organ whose prime function would be the neutraliza- tion of acids to avoid their accumulation within the cell batteries with a consequent destruction of the acid-alkali balance. This is the prime function of the liver. We would expect the organism to be depressed by interference with the physical structure of the cell, especially with the semi-per- meable membranes. That this is the case is strikingly demonstrated by the effects of ether anesthesia. That ether changes permeability has been demonstrated by many physical-chemists. (McClendon, Osterhout, Lillie, Loeb, etc.) The effect of heat and cold upon the organism is apparently in harmony with the electro-chemical theory. Clinical Evidence. In the surgical clinic every degree of imperfection, injury, and impairment of the organism is under observation. If our concep- tion that man is an electro-chemical mechanism is correct, the or- ganism should respond to methods of protection and of restoration which are based upon the laws of physics and of chemistry. The electro-chemical theory should explain the action and gauge the safe application of anesthetics ; it should indicate the paramount value of sleep as the only final means of recharging the 552 CRILE— THEORY OF PROCESSES. batteries; it should warn the cHnician of the prime necessity of regulating the activity of the thyroid and of guarding the integrity of the liver and of the adrenals as essential to the maintenance of the integrity of the brain cells, and it should suggest the importance of assuring an adequate supply of oxygen for the maintenance of the internal respiration; it should emphasize the need of an un- failing continuous supply of fresh water; it should lead the clinician to protect his patient against the external influences which drive the organism excessively and consequently impair the electric cells. For the past two years the measures employed in the Lakeside clinic have been based upon this conception, and in accordance there- with, we have adopted five main principles as our guide in the pro- tection and restoration of our patients: 1. The organism needs an abundant supply of fresh water. 2. There must be an abundant supply of oxygen delivered to the cells for the maintenance of the internal respiration. 3. The temperature, both local and general, must be kept at or near the normal. 4. An abundance of mental and physical rest and an abundance of sleep are essential. 5. The physical structure of the cells must not be impaired by the trauma of the operation or by the anesthetic. By the application of these measures the two essential factors in the maintenance of an electro-chemical system are assured, pro- vided disintegration has not progressed too far for restoration to be possible ; that is, the acid-alkali balance of the cells is maintained or restored and their internal respiration is protected. As our application of these principles has extended with our increasing knowledge of the laws upon which they are based, the mortality rate in our clinic has been diminished correspondingly, and operability has been extended. The findings of the laboratory and the everyday experience in the crucible of the clinic are in harmony with the theory that the organism of man and animals is an electro-chemical mechanism. THE COUDERSPORT ICE MINE. BY EDWIN SWIFT BALCH. {Read, December 2, 1921.) About four miles east of Coudersport, Pennsylvania, and some three hundred yards southwest of the little village of Sweden Valley on the state road to Wellsboro, is a " glaciere naturelle," or natural refrigerator, known as the " Coudersport Ice Mine." It is situated on a hillside and a rough mountain road enables you to drive a motor to within six feet of the entrance. The story of the Ice Mine is rather curious. About 1894 some people conceived the idea that silver might exist in the hill near Sweden Valley and proceeded to dig a shaft to search for it. Instead of silver, as they dug down, they found layers of ice in the rocks. In the fall they abandoned their enterprise. The next spring ice formed in the shaft and this now occurs annually. The name " Ice Mine" came of itself from these circumstances and, although some people criticize the name because no ice is ever taken from the shaft, to me it appeals strongly in that it is not only descriptive, but that it is also distinctive from the names of all other glacieres. It was pure accident which led to the discovery of ice in the rocks surrounding the Ice Mine, and ice might have continued forming there unnoticed year after year except for the digging of the shaft. And this sug- gests that there may be, and that there probably are, many other such natural refrigerators still unknown in mountainous regions. Of course, the wonder of the dwellers of Coudersport and vicinity was aroused and all the old theories about glacieres were put forward once more to account for the formation of the ice: that the ice is mysteriously due to the heat of summer ; that there are chemicals in the rocks; that the ice is consolidated vapor; that it is caused by pressure ; that it is due to evaporation, etc. Some of the statements made about the Ice Mine are identical with statements made about 553 554 BALCH— THE COUDERSPORT ICE MINE. glacieres by the peasants of various European countries for at least two hundred years. Of late, however, these untenable theories are gradually losing currency, although the conversation of the natives and the little booklet sold at the Mine show that the true principles of the formation and disappearance of the ice have not yet been thoroughly grasped. This is clearly shown in " The Automobile Blue Book " for Penn- sylvania, 1921, p. 336, which says: Coudersport, Pa. (Population 3,100 — altitude 1,650 feet). Several years ago an Ice Mine was discovered here, which has been a puzzle to geologists, as the ice which melts in winter congeals in the summer time. The truth, however, is that the formation of the ice is not a puzzle. And this paper is intended as missionary work to dispel illusion and advance knowledge in accordance with the traditions of the American Philosophical Society. The Ice Mine is located in the side of a hill, now sometimes spoken of as the Ice Mountain, and its surroundings are true glaciere coun- try, damp, shady, and free from draughts or sunlight. The exposure of the Ice Mine is north and the sides of the hill are covered with thick second-growth forest which completely shelters the Mine from sun and wind. If this forest were ever cut down, it is almost certain that the ice would largely stop forming. The Ice Mine is surrounded by a tall wooden fence with a locked door, which the female guardian of a little restaurant immediately adjacent to the Mine opens for 50 cents a person. After you have put on your overcoat, paid your fee, and passed through the guarded portal, you find yourself on a level space, with the rocks rising some fifteen feet in front of you surmounted by the wooden fence, and with the shaft, a big, nearly square hole, some ten feet in length by eight in breadth and thirty in depth, going straight down into the rock. The top of the shaft is covered with a wooden floor with a large trap door, which is usually kept shut, as people frequently climb over the fence (Fig. i). The floor of the shaft is reached by a long ladder, and when I visited the Mine, on the 12th of August, 192 1, was covered by a layer, perhaps two or three feet thick, of dirty ice. On three of the sides rather thin ice curtains were stream- BALCH— THE COUDERSPORT ICE MINE. 555 ing down (Fig. 2). These were melting, as was also the ice floor, the glaciere in fact being in a state of thaw, with the thermometer several degrees above freezing point. Fig. I. Coudersport Ice Mine. Entrance, with ice above. The ice, it is said, begins to form about April and to be at its best perhaps in June. After this it slowly diminishes and vanishes by about October. The ice goes quickest in rainy weather and more slowly in warm weather. Both these times of the appearance and disappearance of the ice and these effects of wet or dry weather are normal glaciere phenomena. The only theory about the formation and the disappearance of the Coudersport ice which meets all the facts is the theory which applies universally to all glacieres. Two things are necessary for the forma- tion of ice : cold and water. In glacieres the cold of winter furnishes the cold and the thaws of spring furnish the water. That the win- ter's cold furnishes the cold is proved by the fact that every known glaciere is in a place where there is snow and ice in the open in winter. The winter air sinks from its weight into the glaciere and 556 BALCH— THE COUDERSPORT ICE MINE. the rock cracks leading to it. And the reason ice does not form then is that at that time the water is all frozen up on the outside. But when the thaws of spring melt the outside ice and snow into water this flows into the glaciere and its communicating rock cracks and, Fig. 2. Coudersport Ice Mine. Ice curtain and ladder covered with ice. meeting the cold air within, congeals. The only effect of the heat of summer is slowly to melt the ice. This theory is not a new one. In essence, it is found in the earliest account we have of a glaciere, a visit to Chaux-les-Passavant, pub- lished in 1586, in which the author, Benigne Poissenot, a Paris lawyer, says : After having thought over in my mind the cause of this antiperistase, I could find none other but this: to wit, that as heat dominates in summer, the BALCH— THE COUDERSPORT ICE MINE. 557 cold retires to places low and subterranean, such as is this one, to which the rays of the sun cannot approach, and that in such an aquatic and humid place, it operates the results, which we have shown above. Since Poissenot's times, numerous scientific men have made hun- dreds of observations in many of the several hundred glacieres known, and their consensus of opinion is strongly in favor of the winter's cold theory. In one respect the Ice Mine differs from some of the big European glacieres, in which the size of the cavern and the nearness of the ice to the mouth make it unnecessary for any other cold air than that which comes through the mouth to get in to form the ice. For at Coudersport the size of the shaft is hardly large enough to contain a sufficient volume of very cold air long enough to do all the work which evidently is done there. And therefore some further cause must be sought. And this is found mainly in the fact that the side of the hill itself at that spot, and not merely the Ice Mine, is a natural refrigerator. When the shaft of the Mine was sunk ice was met in the rock crevices. This is a not uncommon form of subterranean ice and there are numerous examples of it both in the eastern and the western United States.^ And the causes of its formation are evidently identi- cal with that of the ice in caves, namely, the cold air of winter sinking into the fissures in the rocks and the thaws of spring sending in their waters. Now, at Coudersport there are unquestionably plenty of small cracks or fissures in the rocks, else there could not be the layers of ice which are found by digging there. And in these cracks much ice undoubtedly is formed and stored in the spring. And from these layers of ice in the hillside above the Mine freezing cold air must keep sinking into the shaft as soon as the temperature in the shaft begins to rise and continue forming ice in the shaft much longer than would be the case without this extra supply. This function of rock crevice ice I must insist on here somewhat forcibly, for although it has been noticed before, it has been so with a lack of emphasis. And this is not surprising, for in many of the 1 Edwin Swift Balch : "Glacieres or Freezing Caverns." Philadelphia. Allen, Lane & Scott, 1900. 558 BALCH— THE COUDERSPORT ICE MINE. larger glacieres of Europe the size of the glaciere permits a volume of freezing cold air to remain over into the spring sufficient for the work of refrigeration. But in certain cases, where the ice of the glaciere is far back from the mouth, and where the phenomena are less patent, freezing cold air entering the glaciere from the rock crevices above it may well be an auxiliary, insufficiently noticed up to now, in the formation of the ice. Indeed, the ice stalactites which issue from holes in the roof or the walls of caverns may well obtain from their own rock crevices instead of from the main body of the glaciere some at least of the cold which causes their formation. Another factor which surely has an influence on the ice at Couders- port is an artificial one, namely, the wooden floor and the trap door. These prevent almost entirely radiation and they probably have a considerable effect on the ice, according to whether the trap door is left shut or open. If the trap door is closed or open in winter, it would militate against the cold air descending into the shaft and vice versa; if it is shut or open in summer, it would help to prevent the cold air in the shaft from warming up and vice versa. When I entered the door in the fence the trap door was wide open, but the guardian said it was usually kept closed. Apparently, therefore, it is effective up to a certain point, much as is a door in an artificial refrigeratoi and I have no doubt that the wooden floor and trap door add materially in keeping the temperature low. Of one thing, however, I feel very sure, and that is that the Coudersport Ice Mine is a true glaciere and obeys the identical nat- ural laws which hold sway in all glacieres. And I base this unscien- tifically dogmatic statement on the visits I have made in past years to some forty other glacieres. Reduced to its simplest formula, the law of glacieres is that the cold of winter furnishes the cold, the thaws of spring furnish the water, and the heat of summer melts the ice. The Ice Mine has its local peculiarities, but every glaciere has these. And although, when compared with some of the great gla- cieres of Europe, with Chaux-les-Passavant. Saint Georges, the Schafloch, the Kolowratshohle, Dobsina, and several others, the Coudersport Ice Mine is but a small glaciere, yet it is the most im- pressive one known in the eastern United States, the one which BALCH— THE COUDERSPORT ICE MINE. 559 exhibits the best ice curtains, ice floor, and other glaciere phenomena in the spring and early summer. And any traveler who has not visited one or more of the big European glacieres, and who may happen to stray to Coudersport during his wanderings, will certainly see there a natural phenomenon which, while not in the least unique, yet is a good deal of a rarity and quite different from the phenomena usually met with in every-day life. OBITUARY NOTICES OF MEMBERS DECEASED OBITUARY NOTICES OF MEMBERS DECEASED. JOSEPH GEORGE ROSENGARTEN. (Read February 4, J921.) Joseph George Rosengarten, third son of George D. Rosengarten and Elizabeth Bennett, was born in Philadelphia, July 14, 1835. He received his early education in private schools of this city and for a time came under the influence of a scholarly man in York, Pa., the Rev. Charles West Thomson, who aroused in him a liking for literature that became an abiding habit and accounted for the aston- ishing voracity in reading that marked him to the end. He passed from the old Academy (the institution out of which grew the Col- lege and University of Pennsylvania) to the College itself and re- ceived his degree of A.B. from the University of Pennsylvania in 1852 at the early age of seventeen, and three years later the degree of M.A. After graduation he studied law in the office of Henry M. Phillips, one of the leaders of the Philadelphia Bar, and was ad- mitted to practice in 1856. The elder Rosengarten, realizing the extraordinary value of foreign study and travel, sent four of his sons abroad to prepare themselves for their future careers. In pursuance of this plan Joseph Rosengarten went abroad shortly after being admitted to practice, to study history and Roman law at the University of Heidelberg and to engage in travel. In this way he was thrown into contact with men of distinction in various fields and acquired that appreciation of scholarship which grew ever stronger with the passing years. Besides the eminent men at that time at the University of Heidelberg, among them Haeusser, the professor of history, and Vangerow, the professor of law, he met among others during his European studies, James Fitzjames Stephen, the great jurist, and his equally famous brother Leslie Stephen. Returning to this country in 1857, it was not long before the rumbling of the thunder in the distance was heard. By a curious Hi iv OBITUARY NOTICES. chance Mr. Rosengarten witnessed the first outbreak against slavery, the famous raid of John Brown. He happened to be traveUing as a guest with the Directors of the Pennsylvania Railroad (of which his father w'as one) on a tour of inspection. The train stopped at Harper's Ferry and there Mr. Rosengarten saw the attack made by the soldiery on the engine house in which John Brown had taken refuge. He saw John Brown lying wounded and he gave a descrip- tion of the hero in a vivid article contributed by him to the Atlantic Monthly in 1865. May we not assume that the incident made an impression upon his youthful spirit which intensified the fervor with which he threw himself into the Union cause? Upon the outbreak of the war, he first joined a company of vol- unteers, Co. A of the Pennsylvania Artiller}% which was made up largely of lawyers. It included men like Chief Justice Mitchell, Judges Penrose and Hanna, Mr.. R. C. MclMurtrie, John G. Johnson, Charles Godfrey Leland, Geo. W. Biddle, Wm. Henry Rawle, and among the survivors of this company are Judge Wilson, Mr. C. Stuart Patterson and j\Ir. Frank Rosengarten. Later he became en- rolled in the 12 1st Regiment, Pennsylvania Volunteers, of the Corps of the Army of the Potomac. His regiment was assigned to guard the city of Washington and subsequently passed further south. In the engagement at Fredericksburg he distinguished himself for brav- ery, picking up the colors after four sergeants had been disabled and carrying them successfully through the engagement. The attention of Major General John F. Reynolds was called to the act of the young officer and he was offered the post of Ordnance Officer and a member of General Reynolds' staft". He remained with General Reynolds until the battle of Gettysburg in which General Reynolds fell. To IMajor Rosengarten was assigned the honor of bringing the body of the fallen hero to Lancaster. His association with General Reynolds was intimate and he was the natural selection deputed to deliver the address at the dedication of the monument to Reynolds at Gettysburg in 1889. After the war Major Rosengarten returned to Philadelphia and resumed the practice of law in an office in which he was associated with the late George Junkin and INIr. Henry S. Hagert, both men who rose to eminence. A great part of his time was taken up with JOSEPH GEORGE ROSENGARTEN. v the management of his father's Ijusiness affairs, for the elder Rosen- garten by virtue of his unusual ability was not only a pioneer in founding and building up a large chemical establishment, but became interested in many other business ventures, and with rare foresight promoted enterprises that proved to be of value to the country as well as successful from a financial point of view. I have not been able to ascertain when 'Mr. Rosengarten's partici- pation in the work of the many public institutions with which he became connected, and with which his name \\\\\ always be asso- ciated, began. In the case of the University of Pennsylvania there was no interruption in his interest from the year 1848, when he entered the college as a freshman, until his death. By the close of the seventies we find him absorbed also in other public institutions like the House of Refuge and the German Hospital, now the Lan- kenau Hospital. He was elected a member of the board of managers of the House of Refuge in 1878, served as vice-president of the corporation from 1893 to 1910, and as president from 191 1 to 1914. He was the assistant chairman of the board from 1893 to 1908, and the chairman from 1908 till 1914. It was largely through his urgency that the complete change in the treatment of the juvenile offenders was carried out through the removal of the institution from the city to the country, — at Glen Mills for the boys, and at Sleighton Farms for the girls. Instead of being treated as prisoners the boys and girls were placed in homes organized on the cottage system. They were placed at work in the fields, given enlarged opportunities for educa- tion, and through gymnastic exercises placed in a receptive physical condition for receiving cultural influences through music and other high forms of entertainment. Mr. Rosengarten was a close friend of the late John D. Lan- kenau. the great benefactor of the institution which now properly bears his name, and many of the plans for the enlargement of the hospital and the home were carried out by Mr. Lankenau in consul- tation with ^Ir. Rosengarten. He served from 1871-1913 as solici- tor for the institution, and as honorary solicitor till his death. Service on the board of a public institution was never a per- functory performance with him. It may be said of him that he never accepted a public position without taking upon himself in a vi ' OBITUARY NOTICES. conscientious spirit the duties involved. Though already heavily burdened he accepted a position as member of the board of the newly-founded Drexel Institute in 1892 and served until 1909. Here again his close association with Mr. Anthony J. Drexel, who fre- quently talked over with him the plans of the proposed endowment, enabled him to play' a particularly valuable part in bringing about the consummation of the purpose which Mr. Drexel had in mind. Another achievement of a notable character was Mr. Rosen- garten's participation in the activities of the Free Library, estab- lished in February, 1891, through the efforts mainly of the late Dr. William Pepper, and prompted by a large bequest of the late George S. Pepper, which was made available for the Free Library. He was elected a member of the board in 1895 and sterved till 191 1. For ten years from 1899 till 1909 he took upon himself the added responsibilities of president of the institution. It was largely through him that the Free Library obtained the splendid gift of one and a half millions from the late Andrew Carnegie, for the estab- lishment of thirty branches ; and it is interesting to note in this con- nection, as an example of. the manner in which seeds of kindness take root and in due time bring forth fruit, that it was the elder Rosengarten's aid and encouragement given to the young Carnegie at the time when he acted as secretary of President Thomas A. Scott of the Pennsylvania Railroad, that proved to be a strong factor in inducing Mr. Carnegie to respond to an appeal made to him by the son of the man who had helped Mr. Carnegie in his own career. ]\Ir. Rosengarten's services to the University of Pennsylvania constitute a chapter by itself. From the day that he was graduated from the old college on Ninth Street, in 1852, up to his resignation as trustee in 1918, he was incessant in his efforts to help every movement looking toward the expansion of the university. There is literally no department of the university which does not bear evi- dence of his interest and of his generosity. At all times active in the aff'airs of the College Alumni Society, he served as president for many years, 1895 to 1905, and as a mem- ber of the board of managers up to a few years before his death. It was as the representative of the Alumni Society that he was elected to the board of trustees in 1896; and, in 1907, his Alma JOSEPH GEORGE ROSENGARTEN. vii Mater paid tribute to the invaluable services rendered by her dis- tinguished son to the nation, to research, as well as to the institution itself, by conferring upon him the honorary degree of LL.D. Of his services to our American Fliilosophical Society I also cannot speak at length without passing beyond the limits of an obituary sketch. His interest in the affairs of the Society was un- ceasing, from the time of his election in 1891. He served as a mem- ber of the Library Committee from 1899 to his death and as Chair- man of the Committee since 1909. It is worthy of note that this position is the only one which he retained of the many which he once held, and all of which he relinquished a few years ago by virtue of advancing years which prompted him to transfer the burden to younger men. He was Councillor of the society from 1901 till 1909, and again from 191 1 to 1913; and he was honored by an election to the Vice-Presidency in 1918. A perusal of the minutes will show that no one exceeded him, and few equalled him, in punctilious at- tendance at the meetings. He took a prominent part in the various celebrations organized by the Society, notably in the bi-centennial of Franklin's birth and he is represented in the Proceedings by many papers, dealing with such various subjects as the French members of the Society, the Franklin Papers in the possession of our Society, the Earl of Crawford's manuscript likewise owned by our Society, the Chateau de Rochambeau, the Paris Exposition of Books, etc. Of special value is a paper on American History from German Archives (published in the Proceedings for 1900), which gives a survey of this very fruitful field of investigation. Air. Rosengarten himself contributed to the publication of " German Archives " by his translations of Popp's Diary and of Achenwall's Observations on North America, both published in the Pennsylvania Magazine of History and Biography (Vols. 26 and 27). Mr. Rosengarten's inti- mate association with the Society led to his being chosen to read the obituary notice of such distinguished members as Henry Coppee, William H. Furness, Henry C. Lea, J. Sergeant Price, Peter F. Rothermel, and Albert Henry Smyth. The last paper read by Air. Rosengarten before the Society was an investigation and discussion of a "Plan for an automatic collection and distribution of a state tax for higher education." This was in 1913 and the article pub- via OBITUARY NOTICES. lished in Vol. 52 of the Proceedings under the title of a " Counsel of Perfection" is an indication both of his thorough study of the subject of higher education and of his mature views reached after a lifetime, full of achievement on his own part for the encourage- ment of higher education and for the promotion of research. Early in life he began to write for such journals as Tlie North American, The Atlantic' Monthly, The Penn Monthly, the New- York Natiofi, and various daily newspapers, as the Nezv York Tribune and the Pliiladelphia Public Ledger. Through his associa- tion with Henry C. Carey, he became interested in social science and read largely on this subject by the side of history and literature. He was active in the establishment of the Social Science Association which later developed into the American Academy of Political Science. A field of history which appealed particularly to him was the study of the part taken by German and French immigrants in the development of this country. Besides numerous articles, ad- dresses and papers, the fruit of his labors in this field are to be seen in two volume. The German Soldier in the Wars of the United States, published in 1886, and of which a second edition, revised and enlarged, appeared in 1890; and French Colonists and Exiles in the United States, issued in 1907. These two volumes represent contributions of permanent worth by virtue of the careful study of the material gathered by Mr. Rosengarten. In both volumes he traces the immigration of German and French settlers to their be- ginnings, and shows exactly what influence was exerted by these elements of the population in each period of our country, down through the Civil War. A bibliography of his papers, monographs and books, prepared some years ago and reaching to 1907,^ brings the number of entries close to one hundred, and since the preparation of this bibliography Mr. Rosengarten, despite advanced years, continued to write for various journals and transactions. No sketch, however brief, of Mr. Rosengarten's life should fail to touch on his intimate association with the scholars, writers, states- men, men in public life in many lands, in this country, in England, France, Germany, Austria, Holland, and Italy. There were few 1 Published in the Alumni Register of May, 1907. JOSEPH GEORGE ROSENGARTEN. ix men who had a large circle of acquaintance ; and having a rare gift for friendship, he continued to maintain association with many of those with whom he was thrown into contact either in this city or through his frequent trips abroad. He knew the Darwins, father and son ; he came into close touch with eminent writers and scholars like F. jMax Aliiller, Thomas Hughes, Goldwin Smith, Herbert Spencer and Lord Bryce ; he formed a friendship extending over many years with the de Rochambeau family and secured the pas- sage of an act of Congress for the purchase of the letters of Wash- ington to Rochambeau. He knew the great trio of American literature, Longfellow, Emerson and Lowell; he had met all the Presidents from Buchanan to Wilson, and knew practically all the generals in the Civil War. Mr. Rosengarten passed away quietly on January 14, 192 1. Morris Jastrow^, Jr. JOSEPH GEORGE ROSENGARTEN. ix men who had a large circle of acquaintance ; and having a rare gift for friendship, he continued to maintain association with many of those with whom he was thrown into contact either in this city or through his frequent trips abroad. He knew the Darwins, father and son ; he came into close touch with eminent writers and scholars like F. Max Miiller, Thomas Hughes, Goldwin Smith, Herbert Spencer and Lord Bryce ; he formed a friendship extending over many years with the de Rochambeau family and secured the pas- sage of an act of Congress for the purchase of the letters of Wash- ington to Rochambeau. He knew the great trio of American literature, Longfellow, Emerson and Lowell ; he had met all the Presidents from Buchanan to Wilson, and knew practically all the generals in the Civil War. Mr. Rosengarten passed away quietly on January 14, 1921. Morris Jastrow^, Jr. X OBITUARY NOTICES. MORRIS JASTROW, JR. {Read, December 2, 192 1.) The life of Professor Morris Jastrow was that of a highly distin- guished Semitic scholar, who was successfully a teacher, investigator, decipherer, writer, editor, and publicist. His life was peculiarly con- secrated to a search for knowledge and the promulgation of the truths that he had ascertained. In the preparation for the work of his life he had in his youth the advantage of a favorable environment. His father, Rabbi Marcus Jastrow, was in charge of a German congregation in Warsaw, when on August 13, 1 86 1, Morris first saw the light of day. A few years later, after having been subjected to arrest because of his political opinions bearing upon the liberties of the people, his father was obliged to leave the country, and came to Philadelphia, where in 1866 he was called to the Congregation Rodef Shalom, which he served for many years and of which he was rabbi emeritus at the time of his death, in 1903. He was a distinguished preacher, a godly man, ■and a profound scholar. The great literary heritage that he left is this Talmudic Dictionary, a monument of untiring industry and wide scholarship. After Morris Jastrow had graduated from the University of Penn- sylvania, in 1881, he studied at Breslau under Frankel, Graetz, and Rosin ; at Leipzig under Fleischer and Franz and Frederick Delitzsch ; at Strassburg under Noeldeke; and in Paris under Renan, Oppert, Derenbourgs, and Halevy. In 1884 he received his Ph.D. at Leipzig, writing his dissertation on the unpublished grammatical works of a Jewish Arabic Grammarian. In 1914 his alma mater honored him by conferring upon him the degree of Doctor of Laws. Jastrow had studied for the ministry, and for a short time had been his father's assistant; but preferring scholastic work to being an exponent of the Jewish faith, he became Lecturer in Semitics at the University of Pennsylvania in 1887; and in 1891 he became Professor of Semitic Languages and Literature. In 1888 he became Assistant Librarian of the University, and a decade later Librarian, which office he held until 1919, making in all thirty-one years of MORRIS JASTROW, JR. xi service in this capacity. During his incumbency the library was re- catalogued and was nearly trebled in size. He was Haskell Lecturer at Oberlin College for 191 3. He lectured during the summer ses- sions of 1919 and 1920 at the University of California. For the present year, having been granted sabbatical leave from the Uni- versity, he had been chosen Annual Professor of the American School of Oriental Research at Jerusalem ; and had been asked to go also to Baghdad to complete arrangements for the establishment of a similar school in that city. In 1886 Professor Jastrow was elected a member of the American Oriental Society; and for thirty-five years, until his death, he took a very active part in its work, contributing many notable articles to its Journal. For many years he was one of the Directors of the Society, and held that position at the time of his death. He was chosen Vice-President of the Society for 1912-13, and President for 1914-15. Since 1891 he was a member of the Society of Biblical Literature and Exegesis, and made frequent contributions to its Journal. In 1916 he was President of this Society; and served on its Board of Directors many years. He was a founder of the Phila- delphia Oriental Club, in 1888; and for many years had been its leading spirit. In 1897 he was elected a member of the American Philosophical Society, and served as Secretary from 1904-1908, and as Councillor from 1910-12, 1914-16, 1920-21. He served twice on the Library Committee, and at the time of his death he was a member of it, as well as a Councillor of the Society. He was always a very active supporter of the measures which at various times during his member- ship were brought forward to promote the activity and usefulness of the Society. He was always deeply interested in its welfare, and gave time to it unstintingly. Professor Jastrow was appointed the official United States dele- gate to the last three Oriental Congresses, held at Rome, Copen- hagen, and Athens. He was also the official delegate to the Third and Fourth International Congresses for the History of Religion, held at Oxford and Leyden. At the former he was elected President of the Semitic Section, and he was one of the presidents at the latter. arii OBITUARY NOTICES. He read occasional papers before the Archaeological Institute of America ; and he was also a member of the Board of Editors of Art and Archaeology, published under the auspices of that Society. For years he was a member of the Executive Committee of the Managing Committee of the American School of Oriental Research in Jerusa- lem, and was also a member of the Committee on the Mesopotamian School. He took part last spring in the work of incorporating the schools, which proved one of his last acts for the advancement of Oriental research. He was regarded a valued and representative member of the Shakespeare Society of Philadelphia ; and also took an active part in the Contemporary Club, the Pennsylvania Library Club, and the Franklin Inn Club of Philadelphia. By the f ruitfulness of his investigations and his manifold contribu- tions Jastrow has indelibly impressed his name upon Oriental re- search. His first contribution to Semitics was his dissertation on the grammatical treatise of Abu Zakarijja Jaha ben Dawiid Hajjiig. which was published in 1885. In his large bibliography, besides this work four other contributions in Arabic are found. While Arabic never ceased to be attractive to him, and he had even planned to be in Egypt at this time for the express purpose of devoting himself to modern Arabic, he early appreciated the fact that for the Biblical field, in which he was especially interested, greater opportunities for research were to be found in the study of Assyrian, Hebrew, and Aramaic. Jastrow's first contribution in Assyrian was in 1887. on a " Pas- sage in the Cylinder Inscription of Asurbanapal," which was pub- lished in the Zcitsclirift fi'ir Assyriologic. His bibliography shows that following this, scarcely a year passed in which one to seven articles were not published on Assyriological subjects alone. In 1889 he published an important fragment of an inscribed cylinder of a ruler named Marduk-shapiq-zirim. By a process of elimination and conjecture and on palaeontological grounds he not only deter- mined that this ruler belonged to the Nisin or Pashe dynasty, but in a remarkable manner reasoned that he should be restored to his place as the founder of the dynasty. An inscription in the Yale Collection published thirty years later proved this to be correct. MORRIS JASTROW, JR. . xiii Another early notable contribution in Assyriology was a fragment of the Irra Myth published in the University of Pennsylvania Series in Philology. This was followed by the publication of a fragment of the Etana Legend from the Library of Ashurbanapal, which had found its way into private hands. It was his good fortune to dis- cover also in private hands a second fragment of this important epic, which he published in 1909. His translation and interpretation of these inscriptions, as well as several others, and in particular a large and important " Assyrian Medical Tablet in the possession of the College of Physicians," Philadelphia, fully demonstrated his ability to handle original inscriptions in a masterly manner. Jastrow was early attracted to the study of the religion of Baby- lonia and Assyria. He was the founder and secretary until his death of the Committee of American Lectures on the History of Religion, and published one of its monographs. He was the editor of a Scries of Handbooks on the History of Religions; and was the author of " Religion of Babylonia and Assyria," which appeared in 1898, as the second volume in the series. This work of 780 pages was a most ambitious undertaking, being largely pioneer in char- acter; but it was carried out so successfully that it remained the chief treatise upon the subject until it was supplanted by his larger work, " Die Religion Babyloniens und Assyriens," which appeared in seven- teen parts between the years 1903 and 191 3. It was originally in- tended that this work should be a translation into German of his English treatise ; but while engaged upon its revision he not only kept pace with new discoveries, but he was prompted to make a fuller study of the divination texts than had previously been made, with the result that his work grew to such proportions that three large volumes, comprising over 1,700 pages of closely printed text, were required for the presentation of his researches. In this field of in- vestigation Jastrow achieved his greatest results. By his linguistic work and interpretation, light was thrown upon hundreds of hitherto obscure words and passages in the omen texts, many of which he translated for the first time. In this field he had the opportunity of utilizing his wide range of knowledge, and showing his bent of mind by correlating in a remarkable manner the customs of other peoples. xiv OBITUARY NOTICES. These investigations led to one interesting discovery after another, resulting in many contributions being made to our journals on the subject of hepatoscopy or liver divination, and astrology, in Baby- lonia and Assyria. Only those who have worked in cognate fields can appreciate the amazing industry that such a monumental and herculean effort required. There can be no question but that Jastrow made himself the leading authority in the world on the religion of the Babylonians and Assyrians. In 191 1 he published "Aspects of Religious Beliefs and Practices in Babylonia and Assyria," which were the "American Lectures on the History of Religion," delivered at various institutions. In this work he summarized his investigations bearing upon the subject in a popular and readable form. In 191 5 Jastrow published a noteworthy volume, beautifully illus- trated, on " The Civilization of the Babylonians and Assyrians," which is a survey of the entire subject on a larger scale for English readers than had previously been attempted. The work exhibits the comprehensive knowledge of the subject which the author possessed. In his " Religion of the Babylonians and Assyrians " his presenta- tion of the Gilgamesh Epic was distinctly an advance upon anything on the subject at that time. One of his latest contributions to Assyriology is entitled " An Old Babylonian Version of the Gil- gamesh Epic," in the production of which the present writer, as joint author, took a minor part. It is a source of no little gratification to him to have been thus identified with the work of his lamented teacher, colleague and friend. Jastrow's contributions in the subject of Hebrew and the Old Testament are also numerous. One of his early noteworthy papers in this field is entitled " Hebrew Proper Names Compounded with Yah and Yahu." Later researches show that in this work he had a re- markable appreciation of Semitic nomenclature. Article after article appeared in the Old Testament field, based upon a new interpretation of the text, or a comparative study of Semitic beliefs, practices, and modes of thought; these researches culminated in a valuable volume entitled "Hebrew and Babylonian Traditions," being the Haskell Lectures, delivered at Oberlin College, in 191 3. MORRIS JASTROW, JR. on) For years Jastrow has been studying and lecturing upon certain books of the Old Testament. Only two years ago he began to pub- lish the results of his researches in this field, and there appeared a volume entitled "A Gentle Cynic, Being the Book of Ecclesiastes." This was closely followed last year by " The Book of Job " ; and there has just appeared the " Song of Songs," the manuscript of which was practically completed only a few days before his death. His years of ripened scholarship, his new translation, and his sane interpretation of the text have enabled him to produce treatises on these books which will hereafter command serious attention when- ever they are considered. During the war Jastrow's interest was directed to the great politi- cal questions before the world, especially in their bearing upon the countries of the Near East. This was natural, especially for one who had devoted his life to a study of the history, religions, and archaeology of the ancient peoples of these lands. He realized that the political problems of the present are in many respects similar to those of the past ; and at the solicitation of those who had heard him lecture on the subject, he felt constrained to publish his views, which show a remarkable understanding of the situation. Four books fol- lowed one after the other in rapid succession, namely : " The War and the Bagdad Railway, or The Story of Asia Minor and its Relation to the Great Conflict " ; " The War and the Coming Peace, a discussion of the war and the basis for an enduring peace " ; " Zionism and the Future of Palestine " ; and '* The Eastern Ques- tion and its Solution." In these the Semitic scholar as publicist has presented a sane and practical solution of the problems involved. Jastrow's miscellaneous bibliography is also large and full, in- cluding memoirs of important men and topics. He edited, with an introductory memoir, " Selected Essays of James Darmesteter," the translation of which from the French was made by Mrs. Jastrow. His contributions to encyclopaedias and dictionaries are numerous; and besides being editor of the Handbooks of the History of Religion, he was editor of the Department of the Bible in the Jewish Encyclo- paedia; he was in charge of the Semitic articles in the International Encyclopaedia ; and joint-editor of the Semitic Study Series ; Asso- xvi OBITUARY NOTICES. ciate Editor of the American Journal of Semitic Languages; and of the American Journal of Theology. Jastrow's versatility and kicidity of style, which enabled him to present his results in a clear, definite, and logical form, was one of his rare gifts. He had a remarkable facility in composition, which enabled him to present results, accruing from his researches, with great ease. The comprehensive bearing of the subject he presented, and the suggestive summaries, which concluded most of his papers, were always highly appreciated. No matter how brief a sketch of this savant's work is presented, reference cannot be omitted to his helpmeet, Helen Bachman Jas- trow, his companion in all his literary work and activities. It is only necessary to read the prefaces to most of his books to see how generously he acknowledged his indebtedness and the " conscientious devotion " of her, whom he called his " faithful collaborator," his " severest and most sympathetic critic," who in numerous ways as- sisted him in all his work and problems, and who was, as he expressed himself in one of his prefaces, " a help and a source of strength too great to be expressed in words." Jastrow's erudition, his ability to present knowledge in a clear and concise form, his abounding interest in students, and the steady en- thusiasm he always manifested in their work, made him a very suc- cessful teacher. There was nothing of that overbearing attitude of the teacher who happens to know a little more than his student. Even to those who faltered or failed, after an honest endeavor, he was kind and encouraging. Invariably he showed a generous atti- tude towards the young scholar, and by kindly and helpful criticism stimulated him to press on and bring out the best that was in him. When the student was able to produce, he not only inspired him to do so, but he rejoiced over his production, and assisted in its publi- cation. He seemed as much pleased when his students made a dis- covery as if he had made it himself. But it was not only the student who received recognition for what he had accomplished; it was one of Jastrow's sterling qualities to recognize unselfishly and generously the scientific achievements of his colleagues. And this has meant so much to men pursuing in- MORRIS JASTROW, JR. xvii vestigations in certain recondite fields of Biblical and Semitic re- search with very few about to appreciate intelligently their results. Jastrow will be greatly missed by them. It would be difficult to find one whose interests were more varied and widespread. He seemed to take cognizance of everything worth while. An outstanding characteristic was his invariable desire to advance his knowledge, which he loved solely for its own sake. He welcomed suggestions from any one able to furnish them ; he even showed a willingness to learn from his students. This keenness for the absorption of knowledge resulted in giving him a breadth of horizon that constantly amazed his colleagues. But what was still more amazing to his friends and colleagues was his marvellous industry. It was difficult to understand how he found time for all his various activities and interests ; for besides being at the head of a great university library, teaching many classes, and conducting seminars with graduate students and colleagues, he poured out one publication after another. And yet with it all, he found time to enjoy the delights of society and all the pleasant things of life. His coteries of friends were many, and his home was a meeting place for men and women of letters. These enjoyed his society and he enjoyed theirs ; for besides his mental alertness, his penetrating mind, and his rich appreciation of everything human, he was not only genially accessible, but he had a delightful personality which was always the same. Whenever he was present one could expect to enjoy a bright and animated conversation or discussion. At the meeting of the learned society or club, as has so frequently been said by those who attended, Jastrow had usually something important to contribute, whether in a formal paper or in the discus- sion of the papers that were read by others. He was frequently the very life of the meeting. When he differed with the views of others he usually expressed his opposition, although without compromise, in such a palatable form that only the supersensitive would take offense. In Biblical criticism, although his investigations led him to take a position that was considered by the conservative as advanced, his views, due to the way he expressed them, did not seem to arouse as much antagonism as others less advanced. Moreover, it cannot be xviii OBITUARY NOTICES. said that he did not present the truth as he saw it ; and he always had the courage to express his convictions. When any movement for the advancement of science was considered, Jastrow was either one of the promoters or he was one who could be counted upon to help further it. He was ready to give his time for anything worth while. His counsel and his cooperation were constantly sought; anS he did not treat an appointment lightly. He performed his duties with an enthusiasm such that the cause for which he labored was usually advanced. It is generally felt that he will not only be greatly missed in the councils of these societies, but that, at least in some of them, there is no one to take his place. By the death of Professor Jastrow America has lost one of her distinguished scholars ; for in the humanities, few, if any, were better known in Europe. Orientalists in this country have lost their lead- ing spirit. His fellow workers feel that they have sustained an irreparable loss. His wise counsel, his unwavering fidelity and loyalty for his friends, his kindly interest in their doings, his tender consideration and confidence, his unselfish character, his genial and delightful companionship — these are no more. Many feel that a great vacancy has come to exist in their lives, and that a living force has gone out of them. The end of his career suddenly came on June 22, 1921, when it seemed that his potentiality was still on the ascendancy. No one can surmise what his remarkable capabilities would have enabled him to accomplish in another decade of activity. Albert T. Clay. BIBLIOGRAPHY. Compiled by Albert T. Clay and James A. Montgomery.* Abbreviations. AJSL, American Journal of Semitic Languages and Literature. — BA, Beitrage zur Assyriologie. — Bib. W., Biblical World. — Hebr., Hebraica. — Ind., Independent. — JAOS, Journal of the American Oriental Society. — JBL, Jour- nal of Biblical Literature.— /Qi?, Jewish Quarterly Review.— P/i 05", Proceed- * In March, 1910, in commemoration of the twenty-fifth anniversary of Professor Jastrow's membership in the Faculty of the University of Penn- MORRIS JASTROW, JR. xix ings of the American Oriental Society. — S. S. Times, Sunday School Times. — ZA, Zeitschrift fiir Assyriologie. — ZATW, Zeitschrift fiir die alttestament- liche Wissenschaft. (a) Arabic. Abu Zakarijja Jahja ben Dawud Hajjug und seine zwei grammatischen Schriften iiber die Verben mit schwachen Buchstaben und die Verben mit Doppelbuchstaben. ZATW, V. (1885), 192-221. The Grammatical Works of Abu Zakariyya Yahya ben Dawud Hayyug. PAOS, XIII. (1888), 295-296. On a Fragment of Hayyug's Treatise on Weak Verbs. PAOS, XIV. (1889), 38-40. An Arabic Tradition of Writing on Clay. ZA, X. (1895), 99. Weak and Geminative Verbs in Hebrew by Abu Zakarijja Jahja Ibn Dawud of Fez. . . . The Arabic text published for the first time. Leiden, 1897 (356 pp.). (6) Babylono- Assyrian. Passage in the Cylinder Inscription of Asurbanabal (V R. 2, col. 2, 121-125). ZA, II. (1887), 353-356. Notes on the Monolith Inscription of Shalmaneser II. Hebr., IV. (1887- 1888), 244-246. Note on the Proper Name " Bu-du-ilu." PAOS, XIII. (1888), 146-147. On Assyrian and Samaritan. PAOS, XIII. (1888), 147-150. On Ikonomatic Writing in Assyrian. PAOS, XIII. (1888), 168-172. Corrections to the Text of the Black Obelisk of Shalmaneser II. Hebr., V. (1888-1889), 230-242. On the Assyrian " kuduru " and the Ring of the Sun-god in the Abu-Habba tablet. PAOS, XIV. (1889), 95-98. The Textbooks of the Babylonians and Assyrians. PAOS, XIV. (1889), 170- 171. The Ashurnasirbal Slabs belonging to the New York Historical Society. PAOS, XIV. (1889), 138-140. A Cylinder of Marduktabikzirim, Text, Translation and Commentary. ZA, IV. (1889), 301-323. "Epeshu." ZA, IV. (1889), 406-408. The Cuneiform Tablets of Tell El-Amarna. The Nation, 1889, 345-346. Assyrian Vocabularies. ZA, IV. (1889), 153-162 (i) ; V. (1890), 31-46 (2). Azuru. ZA, V. (1890), 295-296. Ethics of the Assyrians and Babylonians. Ethical Record, July, 1890, 65-77 A Fragment of the Babylonian " Dibbarra " Epic. " U. of P. Series in Phi- lology," Vol. I, No. 2 (Phila., 1891, 42 pp.). sylvania, the compilers published the bibliography of their preceptor, col- league and friend. It is with affectionate devotion to his memory, that they feprint that work and add the scientific and literary publications of the last eleven years of Dr. Jastrow's life. We express our obligations to Dr. E. Chiera of the University of Pennsylvania and Miss Kathrine B. Hagy of the University Library, for their valuable assistance in this compilation. Dec. IS, 1921. XX OBITUARY NOTICES. Letters of Abdi-Kheba. Hehr., IX. (1892-1893), 24-46. Marduktabikzirim or Mardukshabikzirim. ZA, VIII. (1893), 214-219. Mushannitum. Hehr., X. (1893-1894), 193-19S. A New Fragment of the Babylonian Etana Legend. PAOS, XVI. (1894), 162. Note on the term "Mushannitum." PAOS, XVI. (1894), 192. A Legal Document of Babylonia, dealing with the Revocation of an Illegal Sale. In " Oriental Studies of the Oriental Club of Philadelphia." Boston, 1894, pp. 1 16-136. The Two Copies of the Tablet of Rammannirari I. ZA, X. (1895), 35-48. Ilubidi and Yaubidi. ZA, X. (1895), 222-235. Inscription of Rammannirari I. AJSL, XII. (1895-1896), 143-172. A New Fragment of the Babylonian Etana Legend. BA, III. (1895-1898), 363-383- Textbook Literature of the Babylonians. Bib. W., IX. (1897), 248-268. New Babylonian Version of the Account of the Deluge. Ind. (1898), I., 178 seq., 211 seq. The Babylonian term Shualu. AJSL, XIV. (1897-1898), 165-170. A Legal Document from Babylonia. In " Pennsylvania Law Series," II. (1898), 15-38. Religion of Babylonia and Assyria. In " Series of Handbooks on the History of Religions," Vol. 2. Boston, 1898, 780 pp. Adrahasis and Parnapistim. ZA, XIII. (1898), 288-301. Nebopolassar and the Temple to the Sun-God at Sippar. AJSL, XIV. (1898- 1899), 65-«6. The Palace and Temple of Nebuchadnezzar. Harper's Magazine, Apr., 1902. Die Religion Babyloniens und Assyriens (in parts beginning 1903). Vol. I, 1905; vol. 2-2,, 1912; with album of plates. Giessen. The God Ashur. JAOS, XXIV. (1903), 282-311. Revised Chapters on Babylonia and Assyria. In " A History of All Nations," Vols. I and 2, ed. by J. H. Wright. Lea Bros. & Co., Phila., 1905. E-kish-shir-gal. ZA, XIX. (1905), 135-142. Religion of Babylonia and Assyria. Hastings' Dictionary of the Bible, Extra Vol. (1904), 531-584. A New Aspect of the Sumerian Question. AJSL, XXII. (1905-1906), 89-109. A Babylonian Parallel to the Story of Job. JBL, XXV. (1906), 135-191. A Babylonian Job. Contemporary Reviezv, Dec, 1906. Did the Babylonian Temples have Libraries? JAOS, XXVII. (1906), 14/- 182. On the Composite Character of the Babylonian Creation Story. In Oriental- ische Studien, in honor of Theodore Noldeke's 70th birthday. 1906. Vol. 2, 969-982. Notes on Omen Texts. AJSL, XXIII. (1906-1907), 97-115. Signs and Names for the Liver in Babylonian. ZA, XX. (1907), 105-129. Khabil and Ekha. ZA, XX. (1907), 191-195. The Liver in Antiquity and the Beginnings of Anatomy. Transactions of the College of Physicians of Philadelphia, XXIX., 1 17-138, and Univer- sity of Pennsylvania Medical Bulletin, Jan., 1908, pp. 238-245. MORRIS JASTROW, JR. xxi Sign and Name for Planet in Babylonian. Proc. of the Am. Phil. See, XLVII. (1908), 141-156. Hepatoscopy and Astrology in Babylonia and Assyria. Proc. of the Am. Phil. Soc, XLVII. (1908), 646-676. Urumush. ZA, XXI. (1908), 277-282. An Omen School Text. In Old Testament and Semitic Studies in Memory of W. R. Harper, II. (1908), 27g-Z26. Dil-bat. ZA, XXII. (1909), 155-165. Babylonian Orientation. ZA, XXIII. (1910), 196-208. Shu-Bi-Ash-A-An. ZA, XXIII. (1910), Z7(^277- Another Fragment of the Etana Myth. JAOS, XXX. (1909), 101-131. Sumerian Glosses in Astrological Letters. Babyloniaca, IV. (1910), 227-235. The Liver in Babylonian Divination (Proceedings of the Numismatic and Antiquarian Society of Philadelphia). 1907, pp. 23-27. Sun and Saturn. Revue d' Assyriologie, VII. (1910), 163-178. Months and Days in Babylonian-Assyrian Astrology. AJSL, XXVI. (1910), 151-155. Signs and Names of the Planet Mars. AJSL, XXVII. (1910), 64-83. The Etana Myth on Seal Cyhnders. JAOS, XXX., part IV., 101-131. Aspects of Religious Belief and Practice in Babylonia and Assyria. "Amer- ican Lectures on the History of Religions, loth Series." New York, 1910. (Also some forty articles on gods and heroes of Babylonia and Assyria in the nth edition of the Encyclopedia Britannica.) Carl Frank, Studien zur Babylonischen Religion. AJSL, XXVIII. (1912), 146-152. Bildermappe mit 273 Abbildungen sammt Erklarungen zur Religion Baby- loniens und Assyriens. Giessen, 1912. The Medicine of the Babylonians and Assyrians. The Lancet, Oct. 18, 1913, pp. 1136-42. An Assyrian Mediaeval Tablet in the Possession of the College of Physi- cians. Transactions of the College of Physicians of Philadelphia (1913), pp. 365-400. Abstract of a Paper on the Babylonian-Assyrian Birth Omens and the History of Monsters. Proceedings of the Numismatic and Antiquarian Society of Philadelphia (1913), pp. 217-223. The Medicine of the Babylonians and Assyrians. Proceedings of the Royal Society of Medicine, VII. (1914), pp. 109-176. Hebrew and Babylonian Traditions. The Haskell Lectures, 1913, Oberlin College. New York, 1914. Babylonian and Assyrian Birth Omens and their Cultural Significance. Religions-geschichtliche Versuche und Vorarbeiten, XIV., 1914. Hebrew and Babylonian Views of Creation. Philadelphia, 1915. In Uni- versity of Pennsylvania Lectures, 1915, pp. 191-240. The Civilization of Babylonia and Assyria. Its Remains, Language, History, Religion, Commerce, Law, Art and Literature. Philadelphia, 1915- Sumerian View of Beginnings. Revue d' Archeologie, 1916, pp. 358-372. Sumerian and Akkadian Views of Beginnings. JAOS, XXXVI. (1916), pp. 274-299. xxii OBITUARY NOTICES. Older and Later Elements in the Code of Hammurabi. JAOS, XXXVI. (1919), pp. 1-33. Sumerian Myths of Beginnings. AJSL, XXXIII. (1917), pp. 91-144. Babylonia and Assyria. (Translator with others.) New York, 1917. {Sa- cred Books of the East, Vol. i.) Religion of Babylonia and Assyria. In Montgomery, Religions of the Past and Present. 191 8, pp. 50-75- E-Nu-Sub-Bit Sipti. AJSL, XXXVII. (1920), pp. 51-61. Assyrian Law Code. JAOS, XXXI. (1921), pp. 1-59. Huruppati, Betrothal Gifts. JAOS, XLI. (1921), pp. 314-316. An Old Babylonian Version of the Gilgamesh Epic (with A. T. Clay). Yale Oriental Series : Researches, Vol. I, part 3. New Haven, Conn., 1921. Veiling in Ancient Assyria. Revue d' Archeologie. In press. (c) Hebrew and Old Testament. Greek words in the Book of Daniel (translated from the French of Prof. Hartwig Derenbourg). Hehr., IV. (1887-1888), 7-13. Palace at Susa and the Book of Esther. S. S. Times, Feb., 1889. Old Testament and Recent Assyriological Research. Ind., LIII. (1901), 2449-2453, 2515-2517. How to Study Hebrew. Jewish Messenger, May, 1892. Palestine and Assyria in the Days of Joshua. ZA, VII. (1892), 1-7. Egypt and Palestine, 1400 B. C. JBL, XI. (1892), 95-124. The Oldest Piece of Jerusalem History. S. S. Times, Aug. 26, 1893. Excavations at Sendschirli and Some of their Bearings on the Old Testament. Bib. W., II. (1893), 407-417. The " Men of Judah " in the El-Amarna tablets. JBL, XII. (1893), 61-72. The Bible and the Assyrian Monuments. Century Mag., Jan., 1894, 395-41 x. (Also translation into French by E. Lacordaire, Revue dcs Revues, 1894, 227-235.) Hebrew Prophets in their Historical Setting. Reform Advocate, Feb. 20, 1894. Archaeology as a Factor in Old Testament Study. S. S. Times, Aug. 18, 1894. The Element Bosheth in Hebrew Proper Names. JBL, XIII. (1894). ig-30. Hebrew Proper Names Compounded with " Yah " and " Yahu." JBL, XII. (1894), 101-127. Note on a Passage in "Lamentations" (chap. 2, 6). ZATW, XV. (1895), 287. On Ruth 2: 8. JBL, XV. (1896). 59-62. Origin of the form Yah of the Divine Name. ZATW, XVI. (1896), 1-16. Avenger, Kinsman and Redeemer, in the Old Testament. Ind., Aug. 27, 1896. Note on Meshek and Tubal. AJSL, XIIL (1896-1897), 217. The Original Character of the Hebrew Sabbath. American Journal of The- ology, II. (1898), 312-362. I Kings, 18, 21. JBL, XVII. (1898), 108-110. MORRIS JASTROW, JR. xxiii Canaan. Encyc. Biblica, Vol. i (1899), 638-643. Dust, Earth and Ashes as Symbols of Mourning among the Ancient Hebrews. JAOS, XX. (1899), 130-150. Adam and Eve in Babylonian Literature. AJSL, XV. (1899), 193-214. The name Samuel and the Stem " Sha'al." JBL, XIX. (1900), 82-105. Genesis XIV and Recent Research. JQR, XIII. (1901), 42-57. Hebrew and Babylonian Accounts of Creation. JQR, XIII. (1901), 620-654. Hamites and Semites in the loth Chapter of Genesis. Proceedings of the American Philosophical Society, XIII. (1904), 173-207. Races of the Old Testament. Hastings' Dictionary of the Bible, Extra Vol. (1904), 72-«3. The Tower of Babel. Ind. LVIII. (1905), 822-826. Ro'eh and Hozeh in the Old Testament. JBL, XXVIII. (1909), 52-50. Canaan, Canaanite. In Encyclopadia Biblica, pp. 638-643. Wine in the Pentateuchal Codes. JAOS, XXXIII. (1913), pp. 180-192. So-called Leprosy Laws. JQR, IV. (1914), pp. 357-418. The "Nazir" Legislation. JBL, XXXIII. (1914), PP. 266-285. The Day after the Sabbath. AJSL, XXX. (1914), PP- 94-iio. Constructive Elements in the Critical Study of the Old Testament. JBL, XXXVI. (1917), pp. 1-30. Joshua 3: 16. JBL, XXXVI. (1917), PP. 53-62. A Gentle Cynic, being a Translation of the Book of Koheleth, commonly known as Ecclesiastes, stripped of later additions ; also its origin, growth and interpretation. Philadelphia, 1919. The Book of Job : Its Origin, Growth and Interpretation ; together with a New Translation Based on a Revised Text. Philadelphia, 1920. Poem on Job. Nation, Jan. 29, 1921. The Song of Songs, being a Collection of Love Lyrics of ancient Palestine. Philadelphia, December, 1921. {d) JUDAICA. Jewish Grammarians of the Middle Ages. Hebr., III. (1886-1887), 103-100, 171-174; IV. (1887-1888), 26-32. 118-122; V. (1888-1889), 115-120. Cities of the Plain in Talmud and Midrash. 5". S. Times, Feb., 1887. Notes on the Jews of Philadelphia from Published Annals. Publications of the American Jewish Historical Society, I. (1892), 49-61. The First Publication of a Jewish Character in Philadelphia. Ibid., 63-64. Documents Relating to the Career of Isaac Franks. Ibid., V. (1896), 7-34. References to Jews in the Diary of Ezra Stiles. Ibid., X. (1902), 5-36. The Use of a Jewish Library. Jewish Exponent, Nov. 2, 1894. Jewish Philosophy and Philosophical Writers. Ency. Americana (1903). (e) Other Orientalia. The Wolfe Expedition to Mesopotamia. The American, Aug., 1886. Persian Art in Susa. N. Y. Times, Dec. 9, 1888. Present Status of Semitic Studies in this Country. Hebr., V. (1888-9), 77- 79. xxiv OBITUARY NOTICES. On the Founding of Carthage. PAOS, XV. (1890), 70-73. Cradle of the Semites. Philadelphia, 1890. A Phoenician Seal. Hehr., VII. (1890-1891), 256-267. A New Decipherment of the Hittite Inscriptions. 5". 5. Times, Jan. 17, 1893. Hittites. Ency. Biblica, Vol. 2 (1901), 2094-2100. The Hittites in Babylonia. Revue Semitiqtie, XVIII. (1910), 87-96. Einleitung to Bartels, W. von, Die Etruskische Bronze leber von Piacenza, PP- 3-5, 1910. Historical Study of Religions. Old Penn, March 11 and 25, 1911. The Liver as the Seat of the Soul. Studies in the History of Religions pre- sented to Professor Toy, New York, 1912, pp. 143-168. On Babylonian, Etruscan and Chinese Divination. Actes du IV® Congres Internationale de I'Histoire des Religions, (1913), pp. 106-111. Also in Records of the Past, XII. (1913), pp. 13-16. Introduction to Goldziher, Ignaz. Mohammed and Islam. 1917. Mohammedanism. In Montgomery, Religions of the Past and Present, 1918, pp. 211-243. Religion, the Scope and Method of the Historical Study of Religions. Me- moirs of the International Congress of Anthropology. Chicago, 1894, pp. 287-297. (/) History of Religion. * Mohammedanism. Univ. of Pa. Publications. Philadelphia, 1892. j\ecent Movements in the Historical Study of Religions in America. Bib. W., I. (1893), 24-32. Scope and Method of the Historical Study of Religions. Proceedings of First Congress of Anthropology, Chicago, 1893, 287-297. The Jewish Question in its Recent Aspects. International Journal of Ethics VI. (1896), 457-479- The Modern Attitude towards Religion. Ethical Series, Vol. 4 (1897), No. 8. Islamism. Progress, Vol. 3 (1897), No. 6. Historical Study of Religions in Universities and Colleges. JAOS, XX. (1899), 317-325. First International Congress of the History of Religions. International Journal of Ethics, X. (1900), No. 4. Tearing of Garments as a Symbol of Mourning. JAOS, XXI. (1900), 23- 39- Study of Religion. In " Contemporary Science Series." London, 1901 (4SI pp.). Baring of the Arm and Shoulder as a Sign of Mourning. ZATIV, XXII. (1902), I 17-120. Creation Legends in Ancient Religions. Harper's Magazine, June, 1902. Religions Many; Religion One. In Publications of Neiv York State Confer- ence on Religion, No. I, New York, 1903. Ethical and Religious Outlook, 1905. In Ethical Addresses, XII. (1905), No. i. The Religion of the Semites; being the President's Address, Semitic Section 3d International Congress for the History of Religions, Oxford, Sep- tember, 1908 (Transactions, Vol. I.). MORRIS JASTROW, JR. xxv Third International Congress for the History of ReHgions. (The Nation, Oct. I, 1908.) Anointing. Hastings' Dictionary of Religion and Ethics. Vol. i (1908), 555-557- Astrology. {Encyclopedia Britannica, ed. 1910.) Omens. Ibid. The Bearded Venus. Revue Archeologic, 4me Serie, Vol. XV., 191 1, 271- 298. {g) Political. The War and the Bagdad Railwa3\ Philadelphia, 1917 (with a new preface, Philadelphia, 1918). The War and the Coming Peace. The Moral Issue. Philadelphia, 1918. Objections to a Jewish State. Menorah Journal, 1918. Zionism and the Future of Palestine : The Fallacies and Dangers of Political Zionism. New York, 1919. Turks and the Futui'e of the Near East. American Academy of Political and Social Science, No. 1303, 1919. Language Map of Europe and the Near East. Editor. Rand and McNally, Chicago, 1920. The Eastern Question and its Solution. Philadelphia, 1920. East and West: An Analysis of Eastern and Western Civilizations. 1921. (Address in full forms chapter of " The Eastern Question and its Solu- tion.") In University of Pennsylvania Lectures, 1918-19, pp. 409-413. {h) Miscellaneous. The Pott Library. PAOS. XIV. (1888). 3-4. Pen Pictures of Paris Worthies. Jewish Messenger, Sept. and Oct., 1887 (five articles). The Library of the University of Pennsylvania. Harper's Weekly, Feb. 14, 1891. Magic and Prodigy in the East. Poet-lore, IV. (1892), 118-125. The University Libraries. In Benjamin Franklin and the University of Pennsylvania, ed. F. N. Thorpe. Washington, 1893 (pp. 387-395). Selected Essays of James Darmesteter, edited with an introductory me- moir. Boston, 1898, 310 pp. (The translation of the Essays from the French by Mrs. Morris Jastrow, Jf.) Records of the Past. In Triumphs and Wonders in the Nineteenth Cen- tury. Philadelphia, 1899. Cornelius Petrus Tiele. in Commemoration of his Seventieth Birthday. Open Court, XIV. (1900), 722r-7Z2,- Cornelius Petrus Tiele. Ind., LIV. (1902), 510-512. The 14th International Congress of Orientalists. The Nation, Sept. 10, 1908. Horace Howard Furness. Old Penn, 1913. Useful vs. Useless Knowledge. Old Penn, 1914. Canon Cheyne. Nation, March 11, 191 5. Sir Gaston Maspero. Proc. Am. Phil. Soc, LV. (1916), pp. v-xiii. William Hays Ward. JAOS, XXXVI. (1916), pp. 233-241. xxvi OBITUARY NOTICES. World's Highway. Nation, August 31, 1916. Joseph Halevy. Nation, Nov. 29, 1917. Study of History and the Value of the Classics. 1919. Joseph George Rosengarten. Proc. Am. Phil. See, 1921, pp. iii-ix. (1) Editorial Work. Editor of " Handbooks on the History of Religion." Editor in conjunction with Prof. Gottheil of the " Semitic Study Series." Editor of the Dept. of the Bible in the Jewish Encyclopedia, Vols. I. and II. Editor in charge of the Semitic Dept. of the International Encyclopcedm (several hundred ar'ticles). Associate Editor of the American Journal of Semitic Languages. Associate Editor of the American Journal of Theology. ij) Unpublished Books and Papers. Priest, Prophet and Rabbi. University of California Lectures. The Ancient and the Moderti East. (East and West; Greece as the Link between East and West; The Contribution of the Hebrews; The Place of Egypt, Babylonia and Assyria.) The War and the Eastern Question. Papers and Addresses : Kant on Eternal Peace. — Job and the Mystery of Life. — Woman and Suffrage. — Purim. — English, French and German Culture. — Immortality among the Babylonians and Assyrians. — Biblical Criticism and Biblical Ethics. — The Essentials of Religion. — The Eastern Question at the Peace Conference. — New Lamps for Old. (It is hoped that many of these compositions may be published.) MINUTES. MINUTES. Stated Meeting, January y, 1921, William B. Scott, Sc.D., LL.D., President, in the Chair. The decease was announced of Henry A. Bumstead, A.B., Ph.D., on December 31, 1920, set. 50. The Judges of the Annual Election held this day between the hours of 2 and 5 in the afternoon reported that the following-named members were elected to be the officers for the ensuing year: President. William B. Scott. Vice-Presidents. George Ellery Hale, Arthur A. Noyes, , Hampton L. Carson. Secretaries. I. Minis Hays, Arthur W. Goodspeed, Harry F. Keller, John A. Miller. Curators. William P. Wilson, Leslie W. Miller, Henry H. Donaldson. Treasurer. Eli Kirk Price. Councillors. (To serve for three years.) Bradley M. Davis, W. C. Farrabee, John Frederick Lewis, Edwin Bidwell Wilson. iii iv MINUTES. It was ordered that the Annual General Meeting of 1921 be held on April 21, 22, and 23 of that year. Stated Meeting, February 4, ip2i. William B. Scott, Sc.D., LL.D., President, in the Chair. The decease was announced of Joseph G. Rosengarten, A.M., LL.D., at Philadelphia, on January 14, 192 1, set. 85. Prof. John C. Merriam read a paper entitled " Researches on the Antiquity of Man in California" (illustrated by numerous lantern slides), which was discussed by Professors Scott and Merriam. Stated Meeting, March 4, 1921. William B. Scott, Sc.D., LL.D., President, in the Chair. The decease was announced of : William T. Sedgwick, Ph.D., Sc.D., at Boston, on January 25, 1921, set. 65. Daniel Baugh, at Palm Beach, Florida, on "February 27, 192 1. Stated Meeting, April i, IQ21. William B. Scott, Sc.D., LL.D., President, in the Chair. Decease was announced of Wilhelm von Waldeyer, Professor of Anatomy at the University of Berlin, on , 192 1, set. 85. Dr. Arthur W. Goodspeed read a paper entitled " Another Story about Radium," with experimental illustrations, which was discussed by Professors Miller, Scott, Keller and Goodspeed. Stated General Meeting, April 21, 22, and 2^, 1921. Thursday Afternoon, April 21. William B. Scott, Sc.D., LL.D., President, in the Chair. Dr. Ales Hrdlicka and Mr. J. Franklin Jameson, newly elected members, subscribed the Laws and were admitted into the Society. The decease was announced of : Prof. Ernest Nys, at Brussels, on September 21, 1920, set. 69. Wharton Barker, at Philadelphia, on April 9, 1921, set. 74. MINUTES. V Hampton L. Carson, M.A., LL.D., Vice-President, in the Chair. The following papers were read : " The Roger Bacon Cipher," by WilHam Romaine Newbold, Ph.D., Professor of Intellectual and Moral Philosophy, Uni- versity of Pennsylvania. " Influence of the Humboldt Current on the Distribution and Abundance of Marine Life," by Robert Cushman Murphy, Associate Curator of Marine Birds, American Museum of Natural History, New York (introduced by Mr. Bryant), which was discussed by Prof. Webster. "The Peopling of Asia," by Ales Hrdlicka, Ph.D., Curator in Anthropology, National Museum, Washington, which was discussed by Messrs. Fisher, Jastrow and Webster. " On Population Growth," by Raymond Pearl, Professor of Biometry and Vital Statistics, School of Hygiene and Public Health, Baltimore, and Lowell J. Reed. " Transportation Problems Confronting the American People," by Emory R. Johnson, Litt.M., Ph.D., Sc.D., Professor of Transportation and Commerce, University of Pennsylvania. " English German Commercial Rivalry in the late Sixteenth Century," by Edward P. Cheyney, A.M., LL.D., Professor of European History, University of Pennsylvania. " Early Methods of Communication between China and the Mediterranean," by W. H. Schoff, Secretary of the Com- mercial Museum, Philadelphia (introduced by Dr. W. P. Wilson), which was discussed by Dr. Jastrow. " Notes on the Manichaean Fragments from Turf an," by A. V. Williams Jackson, A.M., LL.D., Professor of Indo-Iranian Languages, Columbia University. " On the Problem of Steering an Automobile Around a Corner." " On the Vibration of Gun-barrels," by Arthur G. Webster, Professor of Physics, Clark University, Worcester, Mass. vi MINUTES. Friday, April 22. Executive Session, p: 30 o'clock. William B. Scott, Sc.D., LL.D., President, in the Chair. Mr. Heber D. Curtis, Mr. Ambrose Swasey, and Dr. C. H. Eigenmann, newly elected members, subscribed the Laws and were admitted into the Society. The Officers and Council presented a report with a list of fifteen nominees selected from the pending nominations for membership whom they recommended for election this year. The reports of the Treasurer and of the Finance Committee were presented and the appropriations for 1922, as recommended by the Finance Committee, were then voted. Morning Session, 10 o'clock. William B. Scott, Sc.D., LL.D., President, in the Chair. The following papers were read : " Propylene Glycol Dinitrate," by Charles E. Munroe, Ph.D., LL.D., Professor of Chemistry, George Washington Uni- versity, which was discussed by Prof. Noyes. "The Proteins of Living Plants," by Thomas B. Osborne, Ph.D., Sc.D., Research Chemist, Conn. Agric. Exp. Station, New Haven, which was discussed by Prof. MacDougal. "The Conduct of Mixtures of Nitrogen and Chlorine in a Flaming Arc," by William A. Noyes, Director of Chemical Laboratory, University of Illinois. " Discussion of a Kinetic Theory of Gravitation." " Some New Experiments in Gravitation," by Charles F. Brush, Sc.D., LL.D., Cleveland, which was discussed by Pro- fessors E. F. Nichols, Webster, Pupin and Goodspeed. "The Nature and Origin of the Fresh Water Fish Fauna of Chili and the Pacific Slope of Ecuador," by Carl H. Eigen- mann, A.M., Ph.D., Professor of Zoology, Indiana Uni- versity. " The Relation between the Chromatin of the Nucleus and Sim- ilar Materials in the Cell Body," by David H. Tennent, Ph.D., MINUTES. vii Professor of Zoology, Bryn Mawr College (introduced by Dr. Donaldson). " Malnutrition as a Cause of Irregularities in the Segregation of (Enothera brevistylis from Crosses with CEnothera La- marckiana," by Bradley M. Davis, Ph.D., Professor of Bot- any, University of Michigan. " Growth and Other Changes in Tree Trunks Measured by the Dendrograph." " The Effect of Bases and Salts on the Hydration of BiocoUoids and Cell-Masses," by D. T. MacDougal, M.A., Ph.D., LL.D., Director of Department of Botanical Research, Carnegie In- stitution of Washington, Tucson, Arizona. "A Natural Group of Unusual Black Oaks," by William Tre- lease, Sc.D., LL.D., Professor of Botany, University of Illinois. " The Grass Rusts of the Andes Based on Collections by Mr. and Mrs. Holway," by Joseph Charles Arthur, Sc.D., LL.D., Professor Emeritus of Botany, Purdue University, Lafayette, Ind. " The Effect of Tension on the Electrical Resistance of Several of the More Unusual Metals," by P. W. Bridgman, Professor of Physics, Harvard University. " Contributions to Dental Physiology," by William J. Gies, Ph.D., Sc.D., Professor of Biological Chemistry, Columbia University, " The Ammono Carbonic Acids," by E. C. Franklin, Ph.D., Professor of Organic Chemistry, Stanford University. Afternoon Session, 2 o'clock. William B. Scott, Sc.D., LL.D., President, in the Chair. Mr. Leonard E. Dickson, a newly elected member, subscribed the Laws and was admitted into the Society. The following papers were read: "The Atomic Theory and Ideal Numbers," by L. E. Dickson, Ph.D., Professor of Mathematics, University of Chicago, which was discussed by Prof. Nipher. "The ' Turtle-Oredon Layer' or 'Red Layer,' a Contribution to the Stratigraphy of the White River Oligocene." viii MINUTES. " A New Hoplophoneus from the Pipanotherium Beds." " Entelodonts from the Big Badlands of South Dakota in the Geological Museum of Princeton Univ.," by W. J. Sinclair, Ph.D., Department of Geology, Princeton University (in- troduced by Prof. W. B. Scott), which was discussed by Prof. Scott. "Rose Atoll, Samoa, in its Relation to Recent Change in Sea Level," by Alfred G. Mayor, M.E., Sc.D., Director of De- partment of Marine Biology, Carnegie Institution. " On the Origin of Laccolitic Mountains," by William H. Hobbs, Sc.D., Ph.D., Professor of Geology, University of Michigan, " Intermittent Vision at Low Intensities," by Herbert E. Ives, Ph.D., of the Western Electric Company, New York, which was discussed by Mr. Brush and Prof. Webster. " A General Catalogue of Stellar Distances," by Frank Schles- inger, Ph.D., Sc.D., Director of Yale University Observatory, which was discussed by Prof. J. A. Miller. " Measurement of Star Diameters by Interferometer," by F. G. Pease, of Mt. Wilson Solar Observatory, Pasadena, Cali- fornia (introduced by Prof. E. B. Wilson), which was dis- cussed by Professors Schlesinger and Webster. " Discussion of the Application of the IMethod of the Interfer- ometer to Certain Astronomical Researches." a. " To Astrophysical Problems," by Henry Norris Russell, Ph.D., Professor of Astronomy, Princeton University, which was discussed by Professors Nichols and Webster. b. " To the Measurement of Double Stars," by Frank Schles- inger, Ph.D., Sc.D., Director, Yale University Observatory, which was discussed by Prof. Webster. c. " To the Determination of Stellar Parallaxes," by John A. Miller, Ph.D., Director, Sproul Observatory, Swarthmore, Pa. " Recent Astronomical Explorations in Space and in Time," by Forrest Ray Moulton, Ph.D., Professor of Astronomy, Uni- versity of Chicago. " I. Universal Volcanism and the Cosmic Atomic Numbers ; II. MINUTES. ix Planck's Constant ' h,' a Variable," by Monroe B. Snyder, Director of the Philadelphia Observatory. " On Mean Relative and Absolute Stellar Parallaxes," by Keivin Burns, Ph.D., Astronomer at the Allegheny Observatory, Pittsburgh (introduced by Mr. H. D. Curtis). "Photo-Electric Photometry of Stars" (illustrated), by Joel Stebbins, Ph.D., Director of the Observatory of the Univer- sity of Illinois, Urbana. Saturday, April 2^. Executive Session, p: jo o'clock. William B. Scott, Sc.D., LL.D., President, in the Chair. Pending nominations for membership were read and the Society proceeded to an election. The tellers subsequently reported that the following nominees had been elected to membership : Herman V. Ames, A.M., Ph.D., Philadelphia. George David Birkhofif, A.M., Ph.D., Cambridge. John J. Carty, D.Sc, LL.D., Short Hills, N. J. Frank M. Chapman, D.Sc, New York. Henry Crew, Ph.D., Evanston, 111. Benjamin M. Duggar, A.M., Ph.D., St. Louis. John Marshall Gest, A.M., LL.B., Philadelphia. Charles Homer Haskins, Ph.D., LL.D., Cambridge. Lawrence J. Henderson, M.D., Cambridge. J. Bertram Lippincott, Philadelphia. Hideyo Noguchi, M.D., New York. Thomas B. Osborne, Ph.D., Sc.D., New Haven. Charles J. Rhoads, A.B., Philadelphia. Vesto M. SHpher, A.M., Ph.D., Flagstaff, Ariz. David White, B.S., Washington. Morning Session, 10 o'clock. William B. Scott, Sc.D., LL.D., President, in the Chair. The following papers were read : " The Signs of Sanity," by Stewart Paton, M.A., M.D., Lecturer MINUTES. in Neuro-Biology, Princeton University, discussed by Pro- fessors Webster, Noyes and Cattell. " Hereditary Influences Bearing on the Resistance to Tubercu- losis," by Paul A. Lewis, M.D., Director, Henry Phipps In- stitute, Philadelphia, and Sewall Wright, S.D., of the U. S. Bureau of Animal Industry, Washington (introduced by Dr. Donaldson), which was discussed by Prof. Webster. " Cinemicrographs of Living Cells," by Dr. Alexis Carrel, Mr. Alessandro Fabbri and Dr. A. H. Ebeling, of the Rockefeller Institute, New York, which was discussed by Dr. Keen. " Some Recent Researches on Yellow Fever," by IJ. Noguchi, M.D., Member of Rockefeller Institute, New York (with cinemicrographic illustrations), which was discussed by Dr. Keen. "An Electro-Chemical Theory of Normal and Certain Patho- logic Processes," by George W. Crile, A.M., M.D., LL.D., Professor of Surgery, Western Reserve University, Cleve- land, which was discussed by Prof. Pupin. " Further Investigations on the Relation Between Terrestrial Magnetism and Atmospheric Electricity," by Louis A. Bauer, Ph.D., D.Sc, Director, Department of Terrestrial Magnetism, Carnegie Institution of Washington, which was discussed by Professors Snyder and Webster. " Production of Radiation by Electron Impact in Helium," by C. B. Bazzoni, Ph.D., Assistant Professor of Physics, Uni- versity of Pennsylvania (introduced by Prof. Goodspeed), which was discussed by Prof. Goodspeed. " The Field of Archaeological Exploration in Mesopotamia and the Outlook for the Future," by Albert T. Clay, Ph.D., LL.D., Professor of Assyriology, Yale LTniversity. "Tobit's Blindness and Sara's Hysteria," by Paul Haupt, Ph.D., LL.D., Professor of Semitic Languages, Johns Hopkins Uni- versity. Afternoon Session, 2 o'clock. William B. Scott, Sc.D., LL.D., President, in the Chair. Mr. Gilbert N. Lewis, Mr. William Duane, Judge John M. Gest, MINUTES. xi Mr. George D. Birkhoff, Mr. Douglas Johnson, and Dr. Hideyo- Noguchi, newly elected members, subscribed the Laws and were admitted into the Society. The Society's Henry M. Phillips Prize of two thousand dollars for the best essay on " The Control of the Foreign Relations of the United States : The Relative Rights. Duties and Responsibilities of the President, of the Senate and the House, and of the Judiciary, in Theory and in Practice," was awarded to Quincy Wright, Esq., of Minneapolis, Minnesota, w'th honorable mention of the essays of John Mabry Alathews, of Urbana, Illinois, and Charles H. Burr, of Philadelphia. The Hon. John Bassett Moore, Chairman of the Henry M. Phillips Prize Essay Committee, presented to the Chair the author of the Crowned Essay and made the formal announcement of the award in the following remarks : It has fallen to my lot, as Chairman of the Committee on the Henry M. Phillips Prize, to announce the award of the prize to the successful competitor. The award has been made by a Special Com- mittee, whose conclusions are embodied in the following report. John Bassett Moore David Jayne Hill COMMITTEE ON Simeon E. Baldwin THE HENRY M. PHILLIPS PRIZE John Cadwalader W. W. Keen William B. Scott President Ex Officio To THE American Philosophical Society : The Committee appointed in connection with the Henry M. Phil- lips Prize to be awarded for the best Essay on the following subject: " The Control of the Foreign Relations of the United States : The Relative Rights, Duties and Responsibili- ties of the President, of the Senate and the House, and of the Judiciary, in Theory and in Practice " respectfully report as follows : A large number of Essays were received by the Society on or before the 31st day of December, 1920. and of the number twelve were found to have complied with the regulations governing the xii MINUTES. award of the prize. These twelve Essays were duly forwarded to the following Judges, who had been selected by the Committee : Hon. George Gray, Hon. Charles E. Hughes, Hon. John M. Gest, Prof. W. W. Willoughbv, Prof, R. C. Minor. Before the Judges were prepared to announce their decision Hon. Charles E. Hughes returned the Essays, stating that owing to his appointment as Secretary of State by the President of the United States he was compelled to retire as one of the Judges to his great regret. On Tuesday, the 15th of March, 192 1, the Judges having ex- pressed a wish to confer, met in this city at the house of one of the Committee. Hon. George Gray, Hon. John M. Gest, Prof. W. W. Willoughby being present. Prof. R. C. Minor was unable to leave the University of Virginia to attend the meeting, but united in the decision by letter addressed to the Chairman, Judge Gray. The Judges, after conferring, announced to the Committee that they were prepared to award the prize to that Essay submitted by " Polybius." They also stated that the Essays submitted by " Civis Americanus " and the one submitted under the title of " He that hath the Bride is the Bridegroom " were entitled to honorable men- tion. The letters containing the keys to the names of the authors were then produced by the Secretary of the Society, Dr. I. Minis Hays, and were opened by the Committee, and it was found that " Poly- bius " was Quincy Wright, of the University of Minnesota, Minne- apolis, and his Essay is thereupon Crowned by the Committee, their action to be announced at the General Meeting of the Society on April 21. The Essay submitted by " Civis Americanus " was identified as that of John Mabry Matthews, of the University of Illinois, Urbana, 111. ; and the third, under the title " He that hath the Bride is the Bridegroom," was shown to be the work of Charles H. Burr, Esq., of Philadelphia, winner of a former prize issued by this Society. The Committee submit herewith the report of the Judges dated March 15, 192 1, signed by the four Acting Judges as follows, the original being also attached hereto : MINUTES. xiii March 15, 1921. To THE Committee of The American Philosophical Society Henry M. Phillips Prize Contest. Dear Sirs: The Judges appointed to award the Henry ]M. Philhps Prize respectfully report that they have exam- ined the twelve essays submitted and after consultation thereon have selected as the best Essay, and therefore en- titled to receive the Prize, that submitted under the name of " Polybius." We further beg leave to state that we experi- enced much difficulty in deciding upon the respective merits of this Essay and those submitted by " Civis Americanus " and " He that hath the Bride is the Bridegroom." All the three essays mentioned display great learning and scholar- ship. Respectfully submitted, Geo. Gray, Chairman; John Marshall Gest, W. W. WiLLOUGHBY, Raleigh C. Minor. Your Committee therefore reports to the Society that the " Crowned Essay " of Quincy Wright be delivered to the Secretaries of the Society for publication in the proceedings at the expense of the Henry M. Phillips Prize fund. They further report that an order on the Treasurer be issued to pay the prize money of Two Thousand Dollars to Quincy Wright, of Minnesota. They also suggest that a vote of thanks be tendered by the Society to the Hon. George Gray, Hon. John M. Gest, Prof. W. W. Willoughby and Prof. R. C. Alinor for their great services in read- ing, examining and determining the merits of the twelve essays sub- mitted to them. The laborious character and intimate knowledge of the subject which these services required and the difficulty in deter- mining the relative merits of the competing essays can not be too highly commended. Respectfully submitted, John Cadwalader, For the Committee. The thanks of the Society are due to the members of the Com- mittee on Award for the fulfilment of their responsible task, the xiv MINUTES. performance of which not only involved the exercise of care, dis- crimination and judgment, but, because of the number and compre- hensiveness of the essays submitted, was also exceptionally laborious. Considering the manner in which the Comm.ittee on Award has discharged its functions, I perhaps might be justified in regarding my present duty as ended. But in expressing to the author my own congratulations on his work and its results, I venture, as one who has been somewhat connected with the study and management of foreign relations, to advert to certain questions which profoundly affect the character of our government and our conduct as a nation, and whose importance transcends the bounds of individual opinion. One of these questions relates to the extent to which what Dicey calls " constitutional understandings " are applicable to the deter- mination of powers or of the exercise of powers under the American constitutional system. It has always seemed to me that so-called constitutional understandings are logically much more of the essence of things under the British system than under the American system. The difference may be likened to that which, in estimating the law- making force and effect of judicial precedents, exists between judi- cial decisions under the English common law and judicial decisions in countries whose law is fundamentally incorporated in codes which judicial decisions merely profess to interpret. My own investiga- tions have led me to the conclusion that the weight attached to judicial interpretations in code countries is greater than is commonly supposed in England and the United States, while England and the United States give less effect to judicial decisions as law-making and law-fixing deliverances than even these two countries themselves generally suppose. Nevertheless, there is a clear logical distinction and also a clear practical difference between the law-determining effect of judicial decisions in the one class of countries and in the other. Another question of vast importance in the United States is that of the extent to which treaties may be exposed to the objection of invalidity because they may be thought to conflict with the federal constitution. As no court, in spite of various disturbing dicta as to what conceivably might be done, has as yet actually held a treaty MINUTES. XV stipulation to be invalid on that ground, I will not now enter into the general question, but will only remark that, in the case of Dillon, the French consul at San Francisco, who claimed, under treaty stipulation, exemption from compulsory process as a witness in a criminal proceeding, it is altogether possible to maintain that the incident did not result either in the establishment or admission of the " international " validity of a treaty where constitutional validity was lacking or in the demonstration of any conflict between the particular treaty and the constitution. Whether France had or had not been " informed " of the treaty-making clause of our constitution seems to be a matter of little consequence. This point could easily be met by handing a copy of the constitution of the United States, together with a few sets of commentaries, to foreign representatives as a preliminary to negotiation with them. The truth is that, al- though no one has a profounder respect for Marcy's opinions than I have, I do not think we are obliged to accept his contention, which was not in fact carried through, that the immunity from compulsive process as a witness, secured by the treaty, was in conflict with the Vlth Amendment to the constitution. Conventional exemptions of that character had from time immemorial been common, and we are no more obliged to admit that the Vlth Amendment was or is in- fringed by them than we are obliged to admit that it has been or is now violated by the immunity from judicial process accorded to diplomatic officers. In regard to what the author of the essay, following the phrase- ology so often employed, discusses under the head of " congressional delegation of power to make international agreements," I have long, indeed I may say always, been inclined to think that no " delegation " of power whatever is involved in the matter. As Congress possesses no power whatever to make international agreements, it has no such power to delegate. All that Congress has done in the cases referred to is to exercise beforehand that part of the function belonging to it in the carrying out of a particular class of international agreements. Instead of waiting to legislate until an agreement has been concluded and then acting on the agreement specifically, Congress has merely adopted in advance general legislation under which agreements, fall- xvi MINUTES. ing within its terms, become effective immediately on their conclu- sion or their proclamation. With regard to the control of the foreign relations of the United States by the federal government, the question whether such control is exclusive or is divided with the state governments reaches down to the very foundations of our constitutional system and of the standing, unity and power of the United States among the nations of the world. In this relation the view that, in the international sphere, powers may be ascribed to the government of the United States on grounds of " sovereignty," and the view that all federal powers must be derived from the constitution either expressly or by implication, do not necessarily lead to contradictory results. Per- sonally, I do not hesitate to avow the opinion that all foreign-inter- course power in the United States is conferred upon the national government by the constitution, either expressly or by implication. I am thus prepared to meet the partisans of '' delegated powers " on their own ground, and in so doing am able to invoke the authority of an eminent judge who is not usually charged with recreancy to states' rights theories. I refer to Chief Justice Taney, who, in the case of Holmes v. Jennison, 14 Peters, 540, as early as 1840, de- clared : " All the powers which relate to our foreign intercourse are confided to the general government." If, said Taney, any power of that kind remained to the States, then every State of the Union must determine for itself the principles on which it would exercise the power, and there would in the end be " no restriction upon the power but the discretion and good feeling of each particular State." Nor did Taney stop here. While admitting, as he said, " that an affirma- tive grant of a power to the general government is not of itself a prohibition of the same power to the States, and that there are subjects over which the federal and state governments exercise con- current jurisdiction," he yet declared : " But, where an authority is granted to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant, there the authority of the federal government is necessarily exclusive ; and the same power can not be constitutionally exercised by the States." Such was the process of interpretation by which Taney reached the conclusion already quoted. MINUTES. xvii There is yet another question to which I feel obliged to advert, and that is the question of the President's power to use force in our foreign relations. By the constitution of the United States the power to declare war is vested in the Congress. Sometimes orators and writers speak of " recognizing the existence of a state of war," as if this differed from declaring war; but the co-existence of the two phrases may be ascribed to motives of political strategy rather than to any belief or supposition that they denoted different legal conceptions. In reality the word " war " comprehends two mean- ings. It denotes (i) acts of war, and (2) the international condi- tion of things called a " state of war." Acts of war do not always or necessarily develop into the general international condition of things called a state of war, but they are nevertheless war and in- volve the " making " of war in a legal sense. The fact is notorious that in many instances hostilities or war de facto have long preceded the formal declaration of war, and that when the declaration was made it was regarded as relating back to the time when hostilities began. As was shown by Lieut. Col. Maurice, of the British War Office, in his " Hostilities without Declaration of War," published in London in 1883, there were less than ten clear instances in the hundred and seventy-one years, from 1700 to 1870, inclusive, where a declaration of war preceded hostilities or the actual making of war. This served to kill the project then pending for the building of a tunnel under the English Channel between Great Britain and France. There can hardly be room for doubt that the framers of the constitution, when they vested in the Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his own notions of the fitness of things, so long as he refrained from calling his action war or persisted in calling it peace. I will take the specific case which the author of the essay mentions of the capture and occupation of Vera Cruz in April, 19.14, by the forces of the United States. The author discusses the question whether xviii MINUTES. this was to be considered as an act of war or as " making war." Sometimes it is helpful to visualize a question by bringing it home to ourselves. Let us suppose that some foreign power, for instance, Great Britain, or France, or Germany, feeling dissatisfied with the form of apology tendered by us for a temporary interference the week before with the movements of one of its consular or naval officers in the United States, should by military force attack and seize the port and city of Philadelphia, take control of Broad Street station and the Pennsylvania railroad, set up a military administra- tion at the City Hall, and, using as a seat of custom the historic edifice (Independence Hall) in which we are now assembled, proceed to collect national duties and local revenues. How would this strike us ? Should we gently dream that the power committing these acts of hostility was exemplifying the arts and processes of peace? In reality an affirmative answer would confound all our conceptions, moral as well as legal. Such acts would necessarily strike a French- man, a German, a Japanese, a Mexican, or any other human being, lawyer or layman, learned or unlearned, at home, in the same way, as acts of war, and he would not be wrong. The Greytown inci- dent, which has often been cited to prove that such a proceeding would not be war or an act of war, can not properly be invoked as a precedent, since Greytown was a community claiming to exist out- side the bounds of any recognized state or political entity, and the legality of the action taken against it was defended by President Pierce and Secretary Marcy on that express ground. It should also be superfluous to remark that the fact that the government of the United States, although it had continued to maintain diplomatic intercourse with the Huerta government, had not formally recog- nized it, is altogether irrelevant. One nation can not divest another of its rights and immunities as an independent state by withholding formal recognition from its government. There is yet another matter to which I venture to advert, and that is the enormous increase within the past six or seven years of the number of publications relating to international affairs. The noto- riously high cost of printing does not seem to have operated as a check on what may in industrial phrase be called the output. But MINUTES. xix this perhaps is not the worst aspect of the matter. A vast deal of what has been published is scientifically worthless, and, to uncritical readers, harmful. It may therefore be said that one of the most serious questions that now confronts an author is that of how to treat, or whether to cite as authority, titularly pertinent publications which, although they may be found on the shelves and in the cata- logues of our larger libraries, are incompetently written and essen- tially misleading. Such a condition of things increases an author's burdens, even though he be inclined, as I personally think he should be, to apply a proscriptive rule, and to refrain from citing such pub- lications, unless for correction or reproof. In conclusion, I desire again to congratulate the author of the Crowned Essay on the results of his work, and I have great pleasure in presenting to him the substantial token of his success. The Prize of two thousand dollars was handed to the successful author by the President. The John Scott Medals for " Useful Inventions " were presented by the Board of City Trusts on behalf of the City of Philadelphia, Trustee, to Mr. C. E. K. Mees, of Rochester, N. Y. ; Hon. James Hartness, Governor of Vermont ; Dr. Hideyo Noguchi, of the Rocke- feller Institute, New York, and Dr. E. C. Kendall, of the Mayo Foundation, Rochester, Minn. The following papers were read : Symposium on Atomic Structure : " General Statement of the Problem," by David L. Webster, Professor of Physics, Leland Stanford University. " X-Ray Spectra," by William Duane, Professor of Bio- Physics, Harvard University. "X-Ray Emission," by Bergen Davis, Professor of Physics, Columbia University. " Chemical Evidence Concerning Atomic Structure," by Gil- bert N. Lewis, Ph.D., Professor of Physical Chemistry, University of California. The above papers were discussed by Professors Webster, Snyder and G. N. Lewis. XX MINUTES. Stated Meeting, May 6, ip2i. William B. Scott, Sc.D., LL.D., President, in the Chair. Mr. Charles J. Rhoads, a newly elected member, subscribed the Laws and was admitted into the Society. Letters accepting membership were received from : Herman V. Ames, A.M., Ph.D., Philadelphia. George David Birkhoff, A.M., Ph.D., Cambridge. John J. Carty, D.Sc, LL.D., Short Hills, N. J. Henry Crew, Ph.D., Evanston, 111. Benjamin M. Duggar, A.M., Ph.D., St. Louis. John Marshall Gest, A.M., LL.B., Philadelphia. Charles Homer Haskins, Ph.D., LL.D., Cambridge. J. Bertram Lippincott, Philadelphia. Hideyo Noguchi, M.D., New York. Thomas B. Osborne, Ph.D., Sc.D., New Haven. Charles J. Rhoads, A.B., Philadelphia. David White, B.S., Washington. The following letter was read from Miss Elizabeth S. Kite, of Philadelphia, in reference to the confusion regarding the names of the brothers Gerard : " May I call attention to an error, found in the Index to the MS. Department of the American Philosophical Society, as well as in that of the MS. Department of the Library of Congress, regarding the names of the brothers Gerard, one of whom, Conrad Alexandre Gerard, was the accredited Minister of France to America in 1778, and the other, Joseph Mathias Gerard de Raynevalle, occupied the post of Secretary to the French Minister of Foreign Affairs, the Comte de Vergennes. " The confusion seems to be due to a misunderstanding on the part of the author of that excellent work, ' New Material for the History of the American Revolution.' The writer, John Durand, took this material in great part from the Gerard correspondence to be found in the Archives of Foreign Affairs in Paris. In the vol- umes preserved there both signatures continually recur, since the replies to the letters from the French Minister in America were written and signed by his brother, the Secretary of Vergennes, and MINUTES. XXI not by the Comte himself. In Durand's book the Minister to America is repeatedly spoken of as Gerard de Raynevalle, which was natural enough except for the fact that ' de Raynevalle ' was not a family title, but belonged exclusively to the younger brother, who is often spoken of by that title alone. " It may be of interest to many readers of your valuable Journal to recall in this connection, that among the distinguished foreigners honored at different times by being elected members of the Ameri- can Philosophical Society, one of the first was this same Conrad Alexandre Gerard, the first accredited diplomat received in the United States. He came to Philadelphia July 14, 1778, having pre- viously arrived at Chester, Penna., where he was met by a delegation appointed by Congress for that purpose. They conducted him ' to a handsome apartment provided for him on Market Street.' Later he occupied the then suburban residence, ' Carpenter's Mansion,' which filled the block across from the State House on Chestnut and Sixth Streets. "I might also add that on pages 102 to 105, inclusive, of the volume entitled, ' Early Proceedings of the American Philosophical Society,' can be found a full account of the connection of Conrad Alexandre Gerard with the Society, and also the copy of a letter sent in his care (after ill-health had compelled his resignation from the post of Minister), to the French scientist, Buffon, in acknowl- edgment of the receipt of four ' elegantly bound volumes ' of the latter's 'Histoire Naturelle des Oiseaux.' Those who wish may examine these very volumes carefully preserved in the library of your Society." Philadelphia, April, 1921. The decease was announced of Charles E. Bennett, A.B., Litt.D., at Ithaca, on May 2, 1921, ajt. 63. Prof. Horace C, Richards read a paper on ' Einstein's Theory of Relativity.' Special Meeting, May 24, IQ21. William B. Scott, Sc.D., LL.D., President, in the Chair. Madame Marie S. Curie, elected to membership in 1910, sub- scribed the Laws and was admitted into the Society. xxii MINUTES. A letter was received from Prof. V. M. Slipher accepting his election to membership. The John Scott Medal and Premium were presented to Madame Curie by the Board of City Trusts on behalf of the City of Phila- delphia, Trustee. Madame Curie, in a verbal tommunication, briefly described one of the instruments used in accurate determinations of radioactivity. It depends on the use of the Quartz Piezo-Electrique, devised by P. Curie and his brother in the early eighties. The essential part of this instrument consists of a plate of quartz which is cut in a special manner. When this plate is placed under tension, there is a liberation of electricity equal in amount, but opposite in sign, on the two sides of the plate. The plate is hung vertically and weights are added to the lower end. The two faces are normal to one of the binary axes of the crystal. The tension must be applied in a direction normal to the optic and electric axes. The two faces are silvered, but the main portion of the plate is electrically insulated by removing a narrow strip of the silvering near the upper and lower ends of the plate. One side of it is connected with the electrometer and with the conductor the rate of leak of which is to be measured. The quantity of electricity set free on one side of the plate is accurately given by a well-known formula and depends upon the dimensions of the plate and the tension applied. Madame Curie stated further that this instrument was used quite early in her measurements, and in an improved form is considered most accurate for such purposes at the present time. It was ordered that as a souvenir of this evening the President be authorized and instructed to present to Madame Curie one of the Franklin Medals struck by the order of the Congress of the United States in commemoration of the 200th Anniversary of the Birth of Benjamin Franklin. The President thereupon presented the medal to Madame Curie, who accepted it with thanks. MINUTES. xxiii Stated Meeting October y, ip2i. William B. Scott, Sc.D., LL.D., President in the Chair. Prof. Herman V. Ames, a newly elected member, subscribed the laws and was admitted into the Society. A letter accepting membership was received from Dr. Lawrence J. Henderson. The decease was announced of Henry Piatt Gushing, Ph.D., at Cleveland, on April 22, 1921, set. 61. Edward B. Rosa Sc.D., Ph.D., at Washington, D. C, on Afay 17, 1921, set. 60. Joseph C. Fraley, at Philadelphia, on May 18, 192 1, set. y^. Morris Jastrow, Jr., M.A., Ph.D., LL.D., at Jenkintown, Pa., on June 22, 1921, set. 60. Hiram M. Hiller, M.D., at Chester, Pa., on August 9, 1921, set. 54. Henry Pettit, at Island Heights, N. J., on August ii^ 1921, set. 79- Joel Asaph Allen, Ph.D., at New York, on August 29, 1921, set. 83. Henry Woodward, LL.D., F.R.S., at Bushey, Herts, England, on Sept. 6. 1921, ast. 89. By unanimous vote the Laws were amended and adopted as a substitute for the existing Laws and Rules of administration. Stated Meeting November 4, 1921. William B. Scott, Sc.D., LL.D., President, in the Chair. Mr. J. Bertram Lippincott, a newly elected member, subscribed the Laws and was admitted into the Society. Communications for the Magellanic Premium were received and referred to a Special Committee for consideration and report. President Scott read a paper on " The Isthmus of Panama and Its Influence on the Animals of North and South America," which was discussed by Doctors Harshberger, Snyder, Mr. Fisher and Prof. Scott. xxiv MINUTES. Stated Meeting December 2, 1921. William B. Scott, Sc.D., LL.D., President, in the Chair. The decease was announced of Sara Yorke Stevenson, Sc.D., at Philadelphia, on November 14, 1921, set. 74. Dr. Albert T. Clay read a Biographical Memoir of the Late Dr. Morris Jastrow, Jr. Mr. Edwin Swift Balch read a paper on " The Coudersport Ice Mine " which was discussed by President Scott. INDEX Acids — Ammono-Carbonic. vii Arthur, Grass Rusts of the Andes, vii Asia, peopHng of, v, 535 Astronomical explorations in space and time, viii Atomic structure, symposium on, xix Statement of problem, Webster X-ray spectra, Duane X-ray emission, Davis Chemical evidence, Lewis Atomic theory — ^ideal numbers, vii Anticyclone, fixed glacial and migrat- ing. 34. Automobiles, problem of steering, v B Balch, Coudersport Ice Mine, xxiv, 553 Bauer, Investigations on relation be- tween terrestial magnetism and at- mospheric electricity, x Bazzoni, Production of radiation by electron impact in Helium, x Biocolloid and cell masses, action of bases and salts on, vii, 15 Bridgeman, effect of tension on elec- trical resistance of several of the more unusual metals, vii Brush, Kinetic theory of gravitation, vi, 43 Burns. Mean relative stellar paral- laxes, ix, 496 Carrel, Cinen^itographs of living cells, x Cell Body, Chromatin and Nucleus and similar materials, vi Cells, living, cinematographs of, x Cheney. English-German commercial rivalry in the late sixteenth cen- tury, V China and the Mediterranean, early methods of communication, v Clay, Archeological exploration in Mesopotamia, x , obituary notice of Morris Jas- trow, xxiv Commercial Rivalry. English-German in sixteenth century, v Coudersport ice mine, xxiv, 553 Crile, Electro-Chemical theory of normal and certain pathologic proc- esses, X, 546 Curie, Madam, Admitted to Member- ship, xxi D Davis, Malnutrition as a cause of ir- regularities in segregation, vii Dental physiology, vii Dickinson, Atomic theory and ideal numbers, vii E Eigenmann, Origin and distribution of genera of fishes of South America, i Eigenmann, Nature and origin of the fresh water fish fauna, vi, 503 Einstein theory, xxi Entelodonts of South Dakota, etc., 467 and viii Fish, fresh water. Chili and Ecuador, vi.i. 503 Foreign Relations. Control of, etc. Prize Essay, 99 Franklin, Ammpno-Carbonic acids. vii G Girard brothers, confusion of, xx Gies, Contributions to dental physiol- ogy, vii Goodspeed, Another story about ra- dium, iv Gravitation, Kinetic theory and ex- periments, vi, 43 Grass Rusts of the Andes, vii Gun Barrels, vibrations of, v H Haupt, Tobit's blindness and Sara's hysteria, x, 71 Hobbs, Origin of Laccolitic moun- tains, viii, 34 Hoplophoneus, New, from the Pipano- therium beds, viii, 96 Hrdlicka, Peopling of Asia, v, 535 Humboldt Current, Influence on ma- rine life, V XXV XXVI, INDEX. Insanity, signs of, ix Interferometer, Discussion of meth- ods of application in astronom- ical research, viii Miller, to determination of stel- lar parallaxis, viii Russell, to Astrophysical prob- lems, viii Schlesinger, to measurement of double stars, viii Ives, Intermittent vision at low inten- sities, viii Jackson, Alanichaean fragments from Turfan, v Jastrow, Obituary Notice of, xxiv , Obituary Notice of J. G. Rosengarten, x Johnson, Transportation problems con- fronting the American people, v Kite, Letter on confusion of names of Girard brothers, xx Laws of Society, Amended, xxiii Lewis, Hereditary influences on re- sistance to tuberculosis, x M MacDougal, Effects of Bases and Salts on the Hydration of Biocol- loids and Cell Masses, vii, 15 , Growth and other changes in tree trunk, vii, 7 Magnetism, relation between terres- trial and atmospheric electricity, x Malnutrition and irregularities from crossing, vii Man, Antiquity of, in California, iv Manichaean Fragments, v Mayor, Rose Atoll, Samoa, viii, 62 Magellanic Premium, xxiii ^Meeting, Stated General, iv Members admitted : Ames, Herman \"., xx Birkhofif, George David, xi Carty, John J., xx Curtis, H. D., vi Curie, Madam Marie S., xxi Crew, Henry, xx Dickinson, Leonard E., vii Duane, Wm., x Duggar. Benj. M., xx Eigenmann, C. H., vi Gest, John Marshall, x Haskins, Chas. Homer, xx Hrdlicka, Ales, iv Jameson, J. Franklin, iv Johnson, Douglas, xi Lippincott, J. Bertram, xx Lewis, Gilbert N., x Noguchi, Hideyo, xi Osborne, Thomas B., xx Rhoads, Chas. J., xx Swasey, Ambrose, vi White, David, xx Members deceased : Allen, Joel Asaph, xxiii Barker, Wharton, iv Baugh, Daniel, iv Bennett, Charles E., xxi Bumstead, Henry A., iii Gushing, Henry Piatt, xxiii Fraley, Joseph C., xxiii Hiller, Hiram M., xxiii Jastrow, Morris, xxiii Nys, Prof. Ernest, iv Pettit, Henry, xxiii Rosa, Edw. B., xxiii Rosengarten, Joseph G., iv Sedgwick, Wm. T., iv Stevenson, Sara York, xxiv Waldeyer, Wilhelm von, iv Woodward, Henry, xxiii Members elected : Ames, Herman V., ix Birkhofif, George David, ix Carty, John J., ix Chapman, Frank M., ix . Crew, Henry, ix Duggar, Benj. M., ix Gest, John Marshall, ix Haskins, Chas. Homer, ix Henderson, Lawrence J., ix Lippincott, J. Bertram, ix Noguchi, Hideyo, ix Osborne, Thos. B., ix Rhoads. Charles J., ix Sliper, Vesto M., ix W^hite, David, ix Merriman. Antiquity of Man in Cal- ifornia, iv Mesopotamia, archeological explora- tion in, X Metals, unusual, tension, etc., vii Minutes, iii-xxiv Moore, Announcement of award of Henrv M. PhilHp^ Pri^^e. xi Moulton, Astronomical explorations in space and time, viii INDEX. XXVll Mountains, Origin of Laccolitic, viii Munro, Propylene Glycol Dinitrate, vi Murphy, Humboldt Current on ma- rine life, V N Newbold, The Roger Bacon cipher, v Nitrogen and chlorine, in flaming arc, vi Noguchi, Recent researches on yellow fever, x Normal and Pathological Processes, Electro-Chemical theory of, x Noyes, Nitrogen and chlorine in a flaming arc, vi Oaks, black, unusual natural group, vii Obituary notices : 43 Rosengarten, Joseph G.. iii Jastrow, Morris, x Officers Elected for 1921, iii Osborn, Proteins of living plants, vi Scott, John, Medal, Presentation of, xix Scott, Wm. B., The Isthmus of Pan- ama and its influence on the animals of North and South America, xxiii Sinclair, A New Hoplophoneus from the Pipanotherium beds, viii, 96 , Entelodonts from Big Bad Lands of South Dakota, viii, 467 ■, " Turtle Oreodon " or " Red Layer " of White River Oligocene, vii, 457 Snyder, Planck's constant ' h ' a vari- able, ix , Volcanism and the cosmic atomic numbers, viii Star diameters, measurement, viii Stars, Photo-Electro-Photometry of, ix Stebbins, Photo-Electric Photometry of Stars, ix Stellar Distances, catalogue of. viii Stellar Parallaxes, mean relative, ix Panama, isthmus, influence on ani- mals of North and South America, xxiii Paton, Signs of insanit}', ix Pearl, Population growth, v Pease, Measurement of star diameters, viii, 524 _ Phillips Prize, committee on, xi Planck's Constant ' h ' a variable, ix Plants, proteins of, vi Population, growth of, v Prize, Henry M. Phillips : Award, xi , Committee on. report of. xiii Propylene glycol dinitrate, vi R Radiation, production of. in Helium, x Radium, another story about, iv Richards, Einstein's theory of relativ- ity, xxi Roger Bacon cipher, v Rose Atoll, Samoa and Sea Level, 62 and viii Rosengarten, Joseph G,, Obituary, iii Schlesinger,^ Catalogue of stellar dis- tances, viii Schoflf, Early Methods of communi- cation between China and the Med- iterranean, V Tobit's Blindness and Sara's Hysteria, X, 71 Tennent, Relation between the chro- matin and the nucleus and similar materials in the cell body, vi Transportation problems, v Trees, growth of, 7 Tree trunks, growth and other changes, vii Trelease, Natural group of black oaks, vii. 31 Tuberculosis, hereditary influences on, X " Turtle-Oreodon " of White River Oligocene, vii, 457 Vision, intermittent at low intensities, viii Volcanism, universal, and cosmic atomic numbers, viii W Webster, Problem of Steering an automobile; Vibrations of gun bar- rels, V Wright, Phillips Prize Essay, Control of Foreign Relations, 99 Yellow fever, recent researches on, x r.£mmw^Brisf:x'mai 3 2044 093 311 702 s '¥^^A . * ^' -It Nv ^:.S>-- y^^j. > . 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