a national power, it is not confided to the Executive in the absence of treaty or legislatíve provision. ... the Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must be authorized by law. There is no executive discretion to surrender him to a foreign government, unless that discretion is granted by law. It necessarily follows that as the legal authority does not exist save as it is given by act of Congress or by the terms of a treaty, it is not enough that statute or treaty does not deny the power to surrender. It must be found that statute or treaty confers the power.

"Second. Whatever may be the power of the Congress to provide for extradition independent of treaty, that power has not been exercised save in relation to a foreign country or territory 'occupied by or under the control of the United States.' Act of June 6, 1900, C. 793, 31 Stat. 656. 18 U. S. C. 652. See Neely v. Henkel, 180 U. S. 109, 122. Aside from that limited provision, the Act of Congress relating to extradition simply defines the procedure to carry out an existing extradition treaty or convention.

"The provision is that-'Whenever there is a treaty or convention for extradition between the Government of the United States and any foreign government'-a proceeding may be instituted to procure the surrender of a person charged with the commission of a crime specified in the treaty or convention. Upon the apprehension of the accused, he is entitled to a hearing and, upon the evidence deemed to be sufficient to sustain the charge 'under the provisions of the property [sic] treaty or convention," the charge with the evidence is to be certified to the Secretary of State to the end that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention.' R. S. 5270, 18 U. S. C.

651.

"It is manifest that the Act does not attempt to confer power upon the Executive to surrender any person, much less a citizen of the United States, to a foreign government where an extradition treaty or convention does not provide for such surrender.

"Third. It is a familiar rule that the obligations of treaties should be liberally construed so as to give effect to the apparent intention of the parties. Tucker v. Alexandroff, 183 U. S. 424, 437; Jordan v. Tashiro, 278 U. S. 123, 127; Factor v. Laubenheimer, 290 U. S. 276, 293, 294. But, in this instance, there is no question for construction so far as the obligations of the treaty are concerned. The treaty is explicit in the denial of any obligation to surrender citizens of the asylum state-'Neither of the contracting Parties shall be bound to deliver up its own citizens.'

"Does the treaty, while denying an obligation in such case, contain a grant of power to surrender a citizen of the United States in the discretion of the Executive? The Constitution declares a treaty to be the law of the land. It is consequently, as Chief Justice Marshall said in Foster v. Nielson, 2 Pet. 253, 314, '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.' See, also, Head Money Cases, 112 U. S. 580, 598; United States v. Rauscher, supra, p. 418. Examining the treaty in that aspect, it

is our duty to interpret it according to its terms. These must be fairly construed, but we cannot add to or detract from them.

"Obviously the treaty contains no express grant of the power now invoked. Petitioners point to Article I which states that the two governments 'mutually agree to deliver up persons' who are charged with any of the specified offences. Petitioners urge that the word 'persons' includes citizens of the asylum state as well as all others. But Article I is the agreement to deliver. It imposes the obligation of that agreement. Article I does not purport to grant any power to surrender save as the power is related to and derived from that obligation. The word 'persons' in Article I describes those who fall within the agreement and with respect to whom the obligation is assumed. As Article V provides that there shall be no obligation on the part of either party to deliver up its own citizens, the latter are necessarily excepted from the agreement in Article I and from the 'persons' there described. The fact that the exception is contained in a separate article does not alter its effect. That effect is precisely the same as though Article I had read that the two governments 'mutually agree to deliver up persons except its own citizens or subjects.'

"May a grant to the Executive of discretionary power to surrender citizens of the United States be implied? Petitioners seek to find ground for this implication by comparing the expression in Article V Neither of the contracting parties shall be bound,' in relation to the surrender of citizens, with the phrase in Article VI that 'A fugitive criminal shall not be surrendered' if the offence charged is of a political character, and the clause in Article VIII that extradition shall not be granted' where prosecution is barred by limitation according to the laws of the asylum country. This difference in the phrasing of denials of obligation would be at the best an extremely tenuous basis for implying a power which in order to exist must be affirmatively granted. Of far greater significance is the fact that a familiar clause-found in several of our treaties-which qualifies the exception of citizens by expressly conferring discretionary power to surrender them was omitted in the treaty with France.

"Petitioners insist that the precedents fall short of showing a uniform course of practical construction favorable to the respondents. The argument is unavailing. What is more to the point is that administrative practice is not shown to be favorable to the petitioners. Strictly the question is not whether there had been a uniform practical construction denying the power, but whether the power had been so clearly recognized that the grant should be implied. The administrative rulings to which we have referred make the latter conclusion wholly inadmissible.

"The treaty with France of 1843 made no exception of citizens. France, however, refused to recognize an obligation under that treaty to surrender her citizens. In inserting the exception in the new treaty, a clause was chosen under which Secretaries of State and a federal court had held that the President had no discretionary power to surrender citizens of this country. Notwithstanding this, that excepting clause was inserted without qualification, and a familiar clause granting a discretionary power was omitted. No

provision was inserted to confer such a power. It was upon that basis that the treaty was negotiated and ratified. In these circumstances we know of no rule of construction which would permit us to supply the omission.

"Against these considerations, the inference sought to be drawn from the French 'expose des motifs' accompanying the treaty, and more particularly from the 'expose' accompanying the FrancoBritish treaty of 1908, is of slight weight.

"Petitioners strongly rely upon the decision in England in In re Galwey [1896], 1 Q. B. D. 230; compare Reg. v. Wilson, 3 Q. B. D. 42 (1877). But, as the Circuit Court of Appeals points out, the Anglo-Belgian treaty there under consideration had its own history and background-quite different from that which we have hereand upon which the case turned. It does not present a persuasive analogy.

"Applying, as we must, our own law in determining the authority of the President, we are constrained to hold that his power, in the absence of statute conferring an independent power, must be found in the terms of the treaty and that, as the treaty with France fails to grant the necessary authority, the President is without power to surrender the respondents.

"However regrettable such a lack of authority may be, the remedy lies with the Congress, or with the treaty-making power wherever the parties are willing to provide for the surrender of citizens, and not with the courts."

TREATY BETWEEN THE UNITED STATES AND GERMANY RESTORING FRIENDLY RELATIONS, AUGUST 25, 19215

DECISION OF THE SUPREME COURT, NEW YORK COUNTY, N. Y.,

Holzer v. Deutsche Reichsbahn Gesellschaft

On April 10, 1936, the Supreme Court of New York rendered a decision in the case of Holzer v. Deutsche Reichsbahn Gesellschaft. This case involves a motion to vacate an attachment on defendants' property, chiefly office furniture, on the ground (1) of sovereign immunity of defendant Reichsbahn; (2) of failure to state a cause of action and disclosure of no cause of action; (3) of lack of jurisdiction to issue order of publication; (4) that defendants are not doing business in this State.

The court stated:

"The claim of sovereign immunity will be instantly recognized, and operates as soon as interposed to end the proceedings. For a court to act on any other assumption would constitute an intolerable

5 Treaty Series, No. 658; 42 Stat. 1939.

6289 N. Y. Supp. 943.

insult to a friendly government. However, such a claim must be properly and explicitly raised. Dependence is had upon an affidavit by the consul general of Germany, at New York, who says merely: 'With the sanction and by special request of the Government of Germany, I have been authorized to engage Childs & Haendel Esqs., of New York City, as attorneys to appear specially in this action in behalf of the said government.' He is not, says Mr. Justice Story, writing in The Anne, 3 Wheat. 435, at page 445, 4 L.Ed. 428, 'considered as a minister, or diplomatic agent of his sovereign, entrusted, by virtue of his office, with authority to represent him in his negotiations with foreign states, or to vindicate his prerogatives.' "Though any one may be intrusted with such a mission, he must prove his authority unless it is to be presumed from his office; moreover, the claim of sovereign immunity must be clear and unmistakable. These necessary elements are both lacking here."

The court thereupon discussed the technical insufficiency of the claim of sovereign immunity and considered the basis for such a claim. It pointed out that—

"One of the principal endeavors of the movant is to persuade the court that the Deutsche Reichsbahn Gesellschaft is not a private corporation, but only a department of the German government. . . .

"This court must decline to recognize the sovereign immunity of the defendant Reichsbahn."

The court finally stated that

"It was not incumbent upon the plaintiff, in resisting an attack upon the attachment, to substantiate his contentions as to the German law. That burden in this, as in all other respects, was upon the moving defendants, and such burden they have utterly failed to sustain. The court need not discuss the contention of plaintiff that the Non-Aryan laws and decrees of the German government should not be given effect because of their repugnance to established principles of the American law."

TREATY OF COMMERCE AND NAVIGATION BETWEEN THE UNITED STATES AND SWEDEN AND NORWAY, JULY 4, 1827 7

DECISION OF THE SUPREME COURT OF THE UNITED STATES FEBRUARY 3, 1936 8

The "Taigen Maru”

On February 3, 1936, the Supreme Court rendered a decision in the case of Peter Van Der Weyde, Petitioner, vs. Ocean Transport Company, Ltd., a corporation, claimant of the steamship Taigen Maru

' Treaty Series, No. 348; 8 Stat. 346; Miller 3: 283.

8 On writ of certiorari to the United States Circuit Court of Appeals for the Ninth Circuit. 297 U. S. 114.

reversing the decision of the Circuit Court of Appeals, Ninth Circuit, a résumé of which is printed on pages 52 to 53 of Bulletin No. 67, April 1935. The opinion of the Supreme Court as delivered by Mr. Chief Justice Hughes is quoted below:

"Petitioner brought this libel in 1931, in the District Court for the Western District of Washington, against the vessel 'Taigen Maru'. for personal injuries which he sustained as a seaman in 1922. The vessel was then known as the 'Luise Nielsen' and was of Norwegian registry. The respondent, Ocean Transport Company, Ltd., a Japanese corporation, made claim as owner, and filed exceptions alleging that a final decree had been entered in the District Court for the District of Oregon in 1924, dismissing a libel, for the same cause, on the intervention of the Norwegian consul.

"In the present case, there was again an intervention by the Norwegian consul who claimed that, while the vessel was now Japanese, he was nevertheless officially concerned, as the former Norwegian owner had agreed to deliver the vessel 'free from all debts and encumbrances'. The consul filed exceptive allegations to the effect that the libelant, a Dutch subject, had signed Norwegian articles and, so far as his rights as a seaman were concerned, was bound by the laws of Norway, which provided for appropriate remedies. The consul asked that, if the cause was not dismissed because of the former decree, the dispute should be left for his adjustment and disposition. The libelant made response and, on hearing, the District Court dismissed the cause 'in the exercise of its discretion'.

"The Circuit Court of Appeals affirmed the decree, but upon the ground that the dismissal should have been for want of jurisdiction rather than as an exercise of discretion. 73 F. (2d) 922. The court based its decision upon the second paragraph of Article XIII of the Treaty of Commerce and Navigation, of 1827, between the United States and the Kingdom of Sweden and Norway, the text of which is given in the margin.* The court assumed that this provision was still in effect, apparently not being advised of the fact that Articles XIII and XIV of that treaty had been terminated in 1919. See Foreign Relations of the United States, 1919, pp. 47–54.

"Section 16 of the Seaman's Act of March 4, 1915,** expressed 'the judgment of Congress' that treaty provisions in conflict with the provisions of the Act 'ought to be terminated', and the President was requested and directed' to give notice to that effect to the several Governments concerned within ninety days after the passage of the

* 8 Stat. 346, 352. "Article XIII. . . . The consuls, vice consuls, or commercial agents, or the persons duly authorized to supply their places, shall have the right, as such, to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities, unless the conduct of the crews, or of the captain, should disturb the order or tranquillity of the country; or the said consuls, vice consuls, or commercial agents should require their assistance to cause their decisions to be carried into effect or supported. It is, however, understood, that this species of judgment, or arbitration shall not deprive the contending parties of the right they have to resort, on their return, to the judicial authority of their country”. **38 Stat. 1164, 1184.