'912] OF THE UNITED STATES. 305 



These decisions certainly find their sanction in poHtical rather than 

 in historical considerations. The question of the government of 

 essentially colonial territory is a political not a legal question. The 

 Supreme Court of the United States have therefore declared Con- 

 gress to be the power which must judge and determine the appli- 

 cability of constitutional provisions. Wise such action may be 

 politically ; but logically analyzed, to do this is to put Congress, the 

 creature of the Constitution, above the Constitution. 



The relation between the foregoing decisions and the applica- 

 bility of the first eight amendments to the treaty-making power is 

 not immediate. Yet, it will be readily concluded that if territory 

 may be acquired by the treaty-making power without subjecting the 

 government of that territory to constitutional provisions except by 

 the action of Congress, such provisions can hardly be said to restrain 

 the treaty-making power. The case of In re Ross**^ is of interest to 

 us here. Therein, an English subject serving as a seaman on an 

 American vessels, was tried for murder before a consular court 

 sitting in Japan under the provisions of a treaty with that country, 

 and was convicted. The trial was not in accordance with consti- 

 tutional requirements. The Supreme Court held that since he was 

 an American seaman, his nationality was immaterial, and that the 

 Constitution was not ordained for countries outside the United 

 States and could have no operation in another country. Said the 

 Court: 



" The treaty-making power vested in our government extends to all 

 proper subjects of negotiation with foreign governments. It can, equally 

 with any of the former or present governments of Europe, make treaties 

 providing for the exercise of judicial authority in other countries by its 

 officers appointed to reside therein. . . . 



" The framers of the Constitution, who were fully aware of the neces- 

 sity of having judicial authority exercised by our Consuls in non-christian 

 countries, if commercial intercourse was to be had with their people, never 

 could have supposed that all the guarantees in the administration of the law 

 upon criminals at home were to be transferred to such consular establish- 

 ments, and applied before an American who had committed a felony there 

 could be accused and tried.""" 



99 



100 



140 U. S., 453 (1891). 

 140 U. S., pp. 463-5- 



