CHAPTER XXIII.

DIPLOMATIC RELATIONS; TREATY-MAKING POWER.

132. References.

J. Story, Constitution, §§ 1505-1523, 1565-1568; J. R. Tucker, Constitution, §§ 353-356, 361; J. N. Pomeroy, Constitutional Law, §§ 669-681; The Federalist, No. 75; C. H. Butler, Treaty-Making Power; A. B. Hart, Actual Government (Amer. Citizen Series), ch. xxiii; H. W. Rogers, Treaty-Making Power (Amer. Bar Assn., Proceedings, 1893, p. 243; North-western Law Rev., II, 1); J. W. Burgess, Federal Government and International Responsibility (Pol. Sci. Quart.), vi. 338; E. W. Huffcut, International Liability for Mob Injuries (Amer. Academy of Pol. Sci., Annals, II, 69); Jones v. United States (1890, 137 U. S. 202; McClain's Cases, 590; Thayer's Cases, 364); Haver v. Yaker (1869, 9 Wallace, 32; McClain's Cases, 581); People v. Gerke (1855, 5 California, 381; McClain's Cases, 583); Head Money Cases (1884, 112 U. S. 580; McClain's Cases, 587; Thayer's Cases, 758); The Cherokee Tobacco (1870, 11 Wallace, 616); Foster v. Neilson (1829, 2 Peters, 253); Chinese Exclusion Case, Chae Chan Ping v. United States (1889, 130 U. S. 581; McClain's Cases, 562).

133. Executive Authority in Diplomacy.

The states can have no relations whatever with foreign governments (Const. Art. I, § 10, ¶ 1). Toward foreign powers, the United States collectively constitute one single power, represented by the federal government, and the relations between that government and foreign governments are through the executive department and in the name of the president as chief executive. Congress cannot deal with foreign powers, and the courts can only take cognizance of their existence and rights by recognizing, interpreting, and applying the action of the executive department, evidenced by treaties or otherwise. The action of the executive department in determining in a controversy with a foreign government whether certain territory is territory of the United States cannot be interfered with by the courts. (See Jones v. United States.) So also it is for the executive department to determine whether this government

will recognize as an independent sovereign power a foreign state claiming such recognition. In short, the entire diplomatic relations between this and other countries are under the control of the executive; and the action of the executive in such matters is binding upon Congress, the courts, and all federal and state officers.

134. Executive Authority as to Aliens.

The power to determine the relations between this government and other governments extends also to the determination of the rights and privileges which shall be accorded to the subjects of foreign governments, either in relation to property within the jurisdiction of this government, or the personal privileges which shall be accorded to them within the limits of the United States. As will appear in the next section, these rights and privileges may be determined by treaty. But in the absence of treaty provisions, the presence of aliens within the limits of the United States is within the control of the executive department. Congress, in the exercise of the legislative power, may provide for the exclusion of aliens, or the deportation of aliens who have been permitted to come within the limits of the United States but have not acquired or are not permitted to acquire the rights of citizenship. The enforcement of the regulations made by Congress rests with the executive, primarily, and not with the courts.

While the policy of the federal government has in general been to permit aliens freely to come into this country, and reside here, enjoying the same personal and property rights as citizens, this policy has been within recent years modified in two important respects: (1) by excluding immigrants who be long to the criminal classes or are likely to become charges on the public, or are afflicted with contagious diseases so that their admission would imperil the general health, or who are brought in under contract binding them to service; (2) by excluding the Chinese, whose presence in large numbers was thought to be inimical to the general public welfare.

The restrictions on immigration might be supported under

§ 135]

Executive Authority.

215

the power of Congress to regulate commerce with foreign nations (see above, § 93), but the total exclusion of the Chinese, and provisions for the deportation of persons of that nationality who refuse to comply with certain regulations as to their residence in this country, rest on a higher power than that involved in the regulation of commerce, and can be supported only on the theory that the federal government may control not only the relations of this government with foreign governments, but also the relations of this government with the subjects of foreign governments (Chinese Exclusion Case).

135. Treaty Power.

A treaty is a compact between two independent governments, determining rights or privileges between them as sovereigns; or between each and the subjects of the other; or between the subjects of one and the subjects of the other. In the United States the treaty-making power is vested by the constitution in the president, who negotiates the treaty through the regular diplomatic representatives of the government, or special representatives appointed for the purpose; but it does not become a complete treaty except by the advice and consent of the Senate, concurrence of two-thirds of the senators present when the treaty is acted upon being necessary to its approval (Art. II, § 2, ¶ 2). Even then it must be promulgated by the executive department after it has also been ratified by the other contracting power.

A treaty may be self-executing, or it may involve legislative action in order that its provisions may be carried into effect. In the latter case the necessary legislation must be provided by Congress, and the House of Representatives, by refusing to concur in legislation proposed for that purpose, may defeat the execution of the treaty. While it may perhaps be said that it is in a general sense the duty of Congress to carry out the provisions of a treaty by necessary legislation, and the national honor may require that it do so, nevertheless that is a matter for the exercise of legislative discretion, and if the House of Representatives refuses to act, or imposes conditions not in

cluded in the treaty itself, there is no means provided for controlling its action. Thus, if a treaty involves the payment of money, it can only be carried out by the concurrence of the House of Representatives in an act appropriating money from the public treasury for the purpose.

The treaty-making power is practically without limit, so far as it is exercised with reference to matters which may be regulated by treaty, and it extends to all proper subjects of negotiation between our government and the governments of other nations. Its limitations are to be found only in its nature and the nature of the federal government, as defined by the federal constitution. It could not be used for the purpose of changing the character of the federal government, or determining its relations with a state government. But whatever limitations there may be on the treaty-making power, they are implied, and are nowhere expressed in the federal constitution.

136. Treaties are a Part of the Law of the Land.

Being compacts between governments, treaties are not usually regarded as a part of the internal or municipal law of either of the governments which are the parties thereto. But it is expressly provided in the federal constitution that "all treaties made or which shall be made under the authority of the United States" shall be, like the federal constitution and the laws of the United States made in pursuance thereof, "the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding" (Const. Art. VI, 2). Therefore, rights and duties of persons, as well as the rights and obligations of the government, may be directly affected by treaties; and such rights and duties, so far as they are granted to or imposed upon individuals, may be protected and enforced in the courts. The provisions of a treaty which it is within the power of the federal government to make will be superior in authority to any state statute relating to the same subject-matter.

Thus, as the rights of the subjects of foreign governments to acquire by purchase or inheritance property within the limits

§ 136]

Treaties.

217 of the United States is a proper subject to be regulated by treaty between this government and such foreign governments, the states cannot by legislation deprive the subjects of foreign governments of property rights guaranteed to them by treaty. It is within the general power of the states to determine to what extent, if at all, aliens may acquire and enjoy property rights under state laws. In many states non-resident aliens are forbidden from acquiring real property by purchase or inheritance. Nevertheless, so far as such state statutes may interfere with the rights of an alien under a treaty between this government and the government of which such alien is a subject, the state law must give way, and if under the treaty the alien is entitled to acquire or own property, by inheritance or otherwise, he may enjoy that right, and it will be protected by the courts, although it is in contravention of the law of the state where the property is situated (People v. Gerke).

Another result of declaring a treaty to be the law of the land is that it stands on the same footing in this respect with an act of Congress. It is the general rule, as between two statutes which are in conflict, if they are enacted by the same authority, that the one later in time will control, being deemed in this respect and to the extent to which the two are in conflict to be a repeal of the former. Likewise, as between two treaties, made between the same contracting powers, the later in time will control or supersede, so far as they are inconsistent, the former. It is to be borne in mind that a statute enacted by Congress is not a part of the law of the land unless it is consistent with and enacted under the authority of the constitution, so that there are no doubt some subjects, such as the right of an alien to acquire or inherit property, which cannot be regulated by Congress, although they may be controlled by treaty. In such a case there could be no conflict between the treaty and the statute, for the statute would be unconstitutional.

As between a treaty and a statute which is enacted by Congress in the exercise of some express or implied power conferred upon it, the later in point of time is controlling, and this will be true even though in the enactment of the statute Con