724
THE GREEN BAG
"Herein we find a reason for the action on the part of those interested in the scheme to centralize power in the federal government. It was their theory that so long as congress omitted to legislate with reference to inter state commerce, there was no law to pro tect those who were wronged by those engaged in interstate commerce. But as we have seen, the Supreme Court decided that they were mistaken; that the common law did apply and would continue to apply until congress should by legislation supersede some or any portion of it by its statutes. "Thus it happens that in both state and national governments, whenever there arise controversies which are not within the pur view of statutes, they are still governed by law. And that law is the common law."
ported the views here expressed. He believes "that the power to make any engagement or regulation of a character customarily deemed within the scope of a treaty, except as the Constitution expressly bestows the control of certain matters on congress, the judiciary or some other branch of the government, is granted to the federal treaty-making power. That such treaty is made by the Constitution paramount to any state constitution or statute and necessarily to any ordinance or regulation of any of the subdivisions or agencies of the state. "Since the treaty-making power of the states is absolutely and wholly eradicated by the Constitution, since the treaty-making power is wholly, absolutely and without any express limitation delegated to the appointed federal authority which is given express power CONSTITUTIONAL LAW (Judicial Power). to override any state law or constitution, since "The Function of the Judiciary II," by Percy treaties made pursuant to such power were Bordwell, Columbia Law Review (V. vii, expressly made paramount to any state con p. 520). The first installment of this article stitution or statute, it seems impossible to was noticed at length in the June Green Bag. find any limit to the dominion of treaties over state laws, except the discretion of the con This final one discusses the remaining pro positions of Juieliard v. Greenman —- " that stitutional treaty making power. Our highest subject to the prohibition of the Constitution federal court has so far found no other limita the powers granted in the United States Con tion, although there are various expressions stitution are to be interpreted in the light of intimating that one exists in the nature of a the practice of civilized nations," and " that treaty and the form of our government. political questions should be left for the "Our laws seem defective only in failing to political departments." So the court in the provide by federal statute that the violation famous Insular cases held that the United of treaty rights shall be a crime to be prose States can hold colonies, although no such cuted by the United States government in power is expressly granted in the Constitution. the United States courts. Our federal courts And that these colonies would be without have no common law jurisdiction in criminal many of the rights which are the very spirit matters, but exactly as a federal statute pro of our institutions was held a question for the vides a procedure which is upheld for enforcing political departments. Such separation from treaty rights as to runaway foreign sailors, political questions seems to Mr. Bordwell so it might provide for direct enforcement of absolutely essential if our judges are to have other treaty rights or for punishment in case the length of tenure requisite for the proper of their breach. development of the law. "Since the treaty is a part of the federal law it becomes the duty of the chief executive CONSTITUTIONAL LAW (Protection of to enforce it, and no reason is apparent why, Treaty Rights). " Federal Treaties and State by the law officers of the government, it may Laws," by Charles Noble Gregory, Michigan not be enforced through the courts." Law Review (V. vi, p. 25). This paper was It is suggested that in the absence of statute read at the annual meeting of the American making violation of treaty rights criminal they Society of International Law in April. At may be protected by mandatory injunction the International Law Association meeting sought by the government in its own name, in Portland the author in the debate sup or supporting an individual's suit.
