acts. Criminal punishment by the United States is subject to the provisions of the Fifth Amendment (23). § 326. Federal treaty powers. The Constitution, Article II, section 1, provides with respect to the President: "He shall have power, by and with the advice and consent of the senate, to make treaties, provided twothirds of the senators present concur." There are no express limitations upon the power of the United States to make treaties, except those prohibitions, contained chiefly in Article I, section 9, and in the amendments, which limit the exercise of Federal powers of government generally. Doubtless the United States by treaty could not gain the power to tax exports or take property without compensation, these acts being expressly forbidden. The important question which is not yet definitely settled is how far the United States may control, by treaty, matters which Congress could not control by legislation. For instance, Congress is given by the Constitution no power to regulate the holding of land in a state. If the United States, by treaty with France, permits Frenchmen to hold land in the United States, is this valid against a state prohibition of local land ownership by aliens? This has been upheld in several instances. "That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations, is clear. It is also clear that the protection which should be afforded to the citizens of one country owning property in another. (23) Wong Wing v. United States, 163 U. S., 228. and the manner in which that property may be transferred, devised, or inherited, are fitting subjects for such negotiation and of regulation by mutual stipulations between the two countries. The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the government itself and that of the states. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter that is properly the subject of negotiation with a foreign country" (24). Likewise it has been held in Massachusetts that a Federal treaty supersedes state laws regarding the administration of property of deceased aliens, and may limit the jurisdiction of the state courts in suits for alien seamen's wages (25). It has also been said that when any rights are secured to an alien by treaty, Congress may legislate to protect these rights, although but for such treaty aliens would be obliged to rely upon state laws only (26). § 327. Same: Another view. The view expressed above is perhaps the one commonly held in this country by students of the subject. It has been strongly urged, (24) Geofroy v. Riggs, 133 U. S., 258, 266. in opposition, that the framers of the Constitution could hardly have intended to reserve a control of local matters in the states as against Congress, only to permit them to be regulated at pleasure by treaties between the United States and foreign nations. To the argument that the power to make such arrangements with foreign nations is too valuable to have been destroyed altogether by the Constitution, and so must be with the Federal government, which alone can make treaties, it is pointed out that another clause of the Constitution permits a state, with the consent of Congress, to make agreements with foreign powers (27). It is suggested that this clause was intended to enable each state, with the consent of Congress, to make agreements with foreign countries respecting the reciprocal rights of their inhabitants (28). The recent controversy over the alleged treaty rights of Japanese children in the public schools of California illustrates the interest and importance of the subject. It cannot be considered as yet settled either way by the Federal courts. § 328. Federal districts within a state. The Constitution, Article I, section 8, § 17, gives Congress power "to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of (27) Art. I, sec. 10, § 3. (28) William E. Mikell, in 57 American Law Register, 435, 528. the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings." The cession contemplated by this clause was made by Virginia and Maryland and constitutes the District of Columbia, in which are located the city of Washington and the seat of the Federal government. In 1841 the part of the District south of the Potomac river was ceded back to Virginia by Congress. The casual reading of the latter part of the clause quoted above might create the impression that this was intended to take the place of the acquisition of land by the Federal power of eminent domain. The distinction between the Federal powers over territory acquired in the two ways is this: The United States has exclusive jurisdiction in all particulars over land purchased with the consent of the state legislature. Over land taken by eminent domain the United States has governmental powers for Federal purposes only. Thus, if land for a post office is purchased in Chicago without the consent of Illinois, the state retains such jurisdiction over the property as does not interfere with postal purposes. If Illinois consents to the acquisition, it loses all jurisdiction not expressly retained (29). § 329. Military powers: Constitutional provisions. The Constitution, Article I, section 8, §§ 11-16, gives Congress power: "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; "To raise and support armies, but no appropriation (29) Fort Leavenworth Railroad Co. v. Lowe, 114 U. S., 525. of money to that use shall be for a longer term than two years; "To provide and maintain a navy; "To make rules for the government and regulation of the land and naval forces; "To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; "To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." Section 9, § 2, provides: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." § 330. Same: During actual hostilities. These provisions give the United States all of the belligerent powers ordinarily exercised by sovereign nations in carrying on war, foreign or domestic. Although Congress alone may declare war, the executive department may recognize its existence in fact, in advance of congressional declaration, and may take appropriate military action to meet the situation. Thus, battles between the American and Mexican troops had taken place before Congress formally declared the existence of the Mexican war; and important armed collisions took place during the Civil war before |