¹ 217 Pac. (2nd) 481; 218 Pac. (2nd) 595 (1950); this Journal, Vol. 44 (1950), p. 590. On similar facts the Superior Court of California in Los Angeles held in Masaoka v. The State (March 16, 1950) that the Alien Land Law is “unconstitutional because it violates the 14th Amendment.”

² Hauenstein v. Lynham (1879), 100 U. S. 483. E. S. Corwin, referring to this case in 1944, notes that recent cases “emphasize and amplify these results.” (The Constitution and World Organization (Princeton, 1944), p. 15.) Corwin discussed the subject at greater length in National Supremacy, Treaty Power and State Power (New York, 1913), reviewed by the present writer in The Dial, Nov. 16, 1913.

³ Ware v. Hylton (1796), 3 Dall. 199, 236. See also Ellsworth, C. J., in Hamilton v. Eaton (1796), Eed. Cas. No. 5980.

⁴ Clark v. Allen (1947), 331 U. S. 503, 508; this Journal, Vol. 42 (1948), p. 201.

⁵ Corwin, National Supremacy; Crandall, Treaties, Their Making and Enforcement (Washington, 1916), pp. 246 ff.; Wright, Q., “The Constitutionality of Treaties,” this Journal, Vol. 13 (1919), pp. 252 ff.Google Scholar; The Control of American Foreign Relations (New York, 1922), pp. 89 ff. “The Supreme Court has never held a treaty unconstitutional whatever its subject matter. On the contrary, wherever a State law has been in conflict with a treaty provision the latter has been upheld. . . . This doctrine has been approved in an unbroken line of decisions from that time (1796) to the present.” Harold W. Stoke, The Foreign Relations of the Federal State (Baltimore, 1931), p. 109.

⁶ Hudson, Manley O., “Charter Provisions on Human Eights in American Law,” this Journal, Vol. 44 (1950), p. 545 Google Scholar.

⁷ Wright, Control of American Foreign Relations, pp. 207 ff., 353 ff.

⁸ Att. Gen. for Canada v. Att. Gen. for Ontario (1937), Judicial Committee of the Privy Council, 53 Times L.E. 325, this Journal, Vol. 31 (1937), p. 348; Robert B. Stewart, “Canada and International Labor Conventions,” ibid., Vol. 32 (1938), pp. 36 ff.

⁹ 252 U. S. 416 (1920). See also Wright, op. cit., pp. 185-186.

¹⁰ Below, note 23.

¹¹ Doe v. Braden, 16 How. 635 (1853). “The construction of treaties is the peculiar province of the judiciary; and, except in cases purely political, Congress has no constitutional power to settle the rights under a treaty or to affect titles already granted by the treaty itself.” Jones v. Meehan (1899), 175 U. S. 1, 32; Moore’s Digest of International Law, Vol. 5, pp. 234, 241.

¹² 2 Pet. 253, 314 (1829). “A treaty is in its nature a contract between 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 Court.” If all treaty provisions are in the “nature of contract” it is difficult to see how treaty provisions which “import a contract” can be distinguished from these “equivalent to an act of the legislature.”

In the Head Money Cases (112 U. S. 580, 1884) Justice Miller made sense out of Marshall’s distinction, but with his interpretation the treaty clause with which Marshall was dealing would have been self-executing. “A treaty” said Justice Miller, “is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. . . . With all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. . . . The Constitution of the United States places such provisions as these in the same category as other laws of Congress. ‘ ‘

Marshall’s usual acuteness may have been adversely affected not only by the peculiar circumstances of Poster v. Nielson, but also by a personal experience perhaps predisposing him to regard treaties as not self-executing. He was counsel for the American debtor who was defendant in error in the case of Ware v. Hylton more than thirty years earlier, and argued, in a way which won him national reputation, that the treaty provision there involved was not applicable because, before it came into force, his client’s debt had been completely discharged in accordance with Virginia law. (3 Dall. 214; A. J. Beveridge, The Life of John Marshall (Boston, 1916), Vol. 2, p. 198.) Justice Iredell had decided in the Circuit Court favorably to Marshall’s client. His decision was reversed in the Supreme Court but he presented his dissenting opinion there which was based on the distinction between self-executing and non-self-executing treaties. He, however, rested this distinction on the separation of legislative, executive and judicial powers. He considered that restoration of the obligation of the debtor who had been legally discharged of his debt by payment to the State as prescribed by State legislation was so clearly an exercise of legislative power that only Congress could execute Art. 4 of the Treaty of 1783 which was in question. Iredell also leaned heavily upon the British practice under which treaties in general require execution by Parliament in so far as they affect private rights. Ware v. Hylton (1796), 3 Dall. 199, 272.

¹³ 7 Pet. 51 (1833), Moore’s Digest, Vol. 1, p. 415. It is to be noticed that the treaty did not specify that Congress should ratify and confirm the titles. The obligation belonged to the United States as a whole, which implies a duty by all agencies of the Government to give it effect so far as they can in the exercise of their constitutional competence. See Iredell’s opinion (above, note 12), though he gave too limited a scope to the constitutional competence of the judiciary; and below, notes 20 and 21.

¹⁴ Article 2.

¹⁵ Jones v. U. S. (1890), 137 U. S. 202, 212; Wright, Control of American Foreign Eelations, pp. 172 ff.

¹⁶ 2 Pet. 313.

¹⁷ The grant involved in the Percheman Case was east of the Perdido and apparently in that case Marshall tacitly accepted the opinion of the majority that that river marked the western limit of the Florida cession of 1819.

¹⁸ Wright, Q., “The Legal Nature of Treaties,” this Journal, Vol. 10 (1916), p. 719 Google Scholar; “Treaties and the Constitutional Separation of Powers in the United States,” ibid., Vol. 12 (1918), pp. 64 ff.; Control of American Foreign Relations, pp. 207 ff., 352 ff.; Moore’s Digest, Vol. 5, pp. 221 ff., 241 ff.; Hackworth’s Digest, Vol. 5, p. 198.

¹⁹ U. S. v. The Peggy (1801), 1 Cranch 103; Wright, op. cit., p. 344.

²⁰ Wharton’s Digest, Vol. 2, p. 67.

²¹ 6 Ops. Att. Gen. 291; Moore’s Digest, Vol. 5, pp. 230, 370; Wright, this Journal, Vol. 12 (1918), p. 93; Control of American Foreign Relations, pp. 5, 357 if.; Harvard Research in International Law, Law of Treaties, this Journal, Supp., Vol. 29 (1935), p. 1037. See also opinion of Iredell, J., above, note 12.

²² 22 As did Art. 8 of the Mexican Reciprocity Treaty of 1884 (Moore’s Digest, Vol. 5, p. 222) and certain provisions of the Shipowner’s Liability Convention of 1936 (Stone, C. J., in Aguilar v. Standard Oil Co. (1943), 318 U. S. 724, 738). A number of such treaties are listed in Wright, Q., Columbia Law Review, Vol. 20 (1920), p. 122 CrossRefGoogle Scholar, and Harvard Research, loc. cit., pp. 978 ff.

²³ As did Art. 7 of the treaty of 1853 with France and Art. 4 of the Eeciprocity Treaty of 1854 with Great Britain. A number of such treaties are listed in Columbia Law Review, Vol. 20, p. 123, and in Harold W. Stoke, The Foreign Relations of the Federal State (Baltimore, 1931), pp. 177 ff.

²⁴ Q. Wright, Control of American Foreign Relations, pp. 90, 191.

²⁵ Hudson, this Journal, Vol. 44 (1950), p. 543.

²⁶ Hirota v. MacArthur, 335 U. S. 876, this Journal, Vol. 43 (1949), p. 170; Flick v. Johnson, 174 Fed. (2nd) 983, this Journal, Vol. 44 (1950), p. 187.

²⁷ Above, note 1.

²⁸ Oyama v. California (1948), 332 U. S. 633, this Journal, Vol. 42 (1948), p. 475.

²⁹ Lauterpacht, H., International Law and Human Eights (London, 1950), p. 152.Google Scholar quoting Ben Cohen in the General Assembly, and James Brierly and Georges Scelle in the United Nations International Law Commission (ibid., pp. 154, 159).

³⁰ U. N. International Law Commission, Doc. A/CN.4/8E.23, p. 10; Lauterpacht, op. cit., p. 154.

³¹ Kelsen, Hans, The Law of the United Nations (London, 1950), p. 100 Google Scholar.

³² Goodrich, Leiand M. and Hambro, Edvard, Charter of the United Nations, Commentary and Documents (Boston, 1949), pp. 322 ffGoogle Scholar. Kelsen (op. cit., p. 100), and Hudson (this Journal, Vol. 42 (1948), p. 106) reach a different conclusion by giving excessive weight to the position which the United States urged, but, in the opinion of the present writer, failed to achieve.

³³ Above, note 30.

³⁴ Above, note 29.

³⁵ Op. cit., p. 120. For United Nations practice in regard to the matter, see ibid., pp. 114 ff. and Lauterpaeht, op. cit., pp. 166 ff. Kelsen’s interpretation of this clause would in large measure eliminate all legal obligations of the Members under the Charter (op. cit., p. 769). Lauterpaeht characterizes it as “devastating” and “pessimistic” (op. cit., p. 173).

³⁶ Tunis Nationality Decrees case (1923), 1 Hudson, World Court Reports 156.

³⁷ Art. 1 of the United States treaty 10th Germany, 1923, is typical. Trenwith, U. S. Treaties, etc., Vol. 4, p. 4191.

³⁸ Kedmond, U. 8. Treaties, etc. , Vol. 3, p. 2712.

³⁹ Asakura v. Seattle (1924), 265 U. S. 332. See also Jordan v. Tashiro (1928), 278 U. S. 123; Hackworth’s Digest, Vol. 5, pp. 256 ff.

⁴⁰ 311 U. S. 150 (1940).

⁴¹ Compagnie Française v. State Board of Health (1902), 186 U. S. 380; Patsone v. Pennsylvania, 232 v. 8. 138, 145; Heim v. McCall (1915), 239 U. S. 175, 193; Terrace v. Thompson (1923), 263 U. S. 197, 223; Wright, , “The Constitutionality of Treaties,” this Journal, Vol. 13 (1919), pp. 254 ff.Google Scholar; Control of American Foreign Relations, pp. 89 ff.

⁴² Terrace v. Thompson, above; Hackworth’s Digest, Vol. 5, p. 261.

⁴³ See the Oyama, Masaoka, and Fujii cases, above, notes 28 and 1.

⁴⁴ These are not included in the Universal Declaration of Human Eights, although that instrument recognizes the rights of emigration and reentry to one’s own country (Art. 13, par. 2); of seeking asylum (Art. 14, par. 1); of freedom from deprivation of nationality or denial of change of nationality (Art. 15, par. 2); of participation in elections and equal access to the public service in one’s own country (Art. 21).

⁴⁵ Handbook of Commercial Treaties (United States Tariff Commission, 1923), p. 11.

⁴⁶ “Statement of Essential Human Bights,” Committee of American Law Institute, 1944, Comment to Art. 1. Annals, American Academy of Political and Social Science, Jan., 1946, p. 18.

⁴⁷ As Federal courts did to punish offenses against the law of nations in the 1790 ‘s. In re Henfleld, Fed. Cas. No. 6360; U. S. v. Eavara, Fed. Cas. No. 6122, 2 Dall. 297.

⁴⁸ U. S. v. Worral (1798), 2 Dall. 384; U. S. v. Hudson (1812), 7 Cranch 32; U. S. v. Coolidge (1816), 1 Wheat. 415; Q. Wright, Control of American Foreign Relations, p. 197.

⁴⁹ Hudson, Manley O., “Integrity of International Instruments,” this Journal, Vol. 42 (1948), p. 108 Google Scholar.

⁵⁰ “We must never forget that it is a Constitution we are expounding. . . . 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 Constitution, are Constitutional.” Marshall, C. J., in McCulloch v. Md. (1819), 4 Wheat. 316. “The Government of the United States is one of limited and delegated powers; it derives its existence and authority altogether from the Constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted.” Taney, C. J., in Ex parte Merryman (1861), Taney’s Reports, 246.

⁵¹ “A scientific interpretation has to avoid giving countenance to the fiction that there is always but a single ‘correct’ interpretation of the norms to be applied to concrete cases.” Kelsen, H., The Law of the United Nations (London, 1950), pp. xiv–xvi.Google Scholar

⁵² E. S. Corwin disagrees with critics of broad constitutional construction who regard new methods as “evasion” if they depart from their own conception of what the Constitution means, and who insist there is “something essentially dishonest about constitutional changes which are brought about by practice and usage.” He contends “to the very contrary, that the most beneficial type of constitutional change is that which issues gradually from, and so has been thoroughly tested by, successful practice. ‘ ‘ The Constitution and World Organization (Princeton, 1944), p. 41.

⁵³ The Report of the President’s Committee on Civil Bights, “To Secure These Eights” (Washington, 1947).

⁵⁴ The differences in national practice in this regard are relative. All countries recognize that some treaty provisions and some rules of customary international law are “political” and outside the competence of courts. See Wright, Q., “The Legal Nature of Treaties,” this Journal, Vol. 10 (1916), p. 735 Google Scholar; “International Law in its Relation to Constitutional Law,” ibid., Vol. 17 (1923), p. 236; Piccotto, Cyril M., The Relation of International Law to the Law of England and the United States (London, 1915), pp. 125–126 Google Scholar; Masters, Euth D., International Law in National Courts (New York, 1932)Google Scholar; Philip Jessup, below, note 57.

⁵⁵ Wright, Q., The Enforcement of International Law through Municipal Law in the United States (Urbana, Ill., 1916), pp. 16 ffGoogle Scholar.

⁵⁶ Q. Wright, “ International Law in its Relation to Constitutional Law,” loc. cit., p. 241; American Institute of International Law, Declaration of the Eights of Nations, 1916, this Journal, Vol. 10 (1916), p. 124.

⁵⁷ Jessup, Philip C., discussing “Has the Supreme Court Abdicated One of its Functions?” (this Journal, Vol. 40 (1946), p. 168 Google Scholar), concludes: “There is more need today than there ever has been before for the cooperation of national courts in contributing to the development of international law. “See colloquy participated in by George A. Finch, Manley O. Hudson, Willard Cowles, Eleanor Allen and others, Proceedings, American Society of International Law, 1948, pp. 73 ff.

⁵⁸ Castleberry, Paul, The Supreme Court and International Questions: 1917-1948 (Doctor’s Dissertation, University of Chicago, 1949)Google Scholar.

⁵⁹ Moore, J. B., International Law and Some Current Illusions (New York, 1924), p. 293 Google Scholar.