WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 211 



doing so.^^ It does not appear that there is any unconstitutional 

 delegation of legislative power in the League of Nations Cov- 

 enant. 



64. Limitations Derived from Powers of the Judiciary. 



The constitutionality of a treaty seems never to have been 

 questioned on the ground that it was itself an exercise of 

 judicial power though treaties or arbitrations based upon them have 

 interpreted statutes and international law and the courts have 

 followed such decisions.^* Nor is there any encroachment upon 

 the judicial power when treaties vest judicial powers in bodies 

 other than the supreme and inferior courts of the United States. 

 Consular courts abroad and international courts founded on 

 treaty do not exercise " the judicial power of the United States " in 

 the meaning of Article III of the Constitution^^ and foreign con- 

 sular courts in the United States for the trial of seamen of vessels 

 of the consul's nationality have been held of " ministerial " rather 

 than judicial character, though the grounds for this distinction is 

 not apparent.^*' 



93 W. H. Taft, The Covenanter, p. 60 et seq. See also Wright, Am. 

 Jl. Int. Law, 12 : 75, and supra, sec. 59. 



94 U. S. V. La Ninfa, 75 Fed. 513; Comegys v. Vasse, i Pet. 193 (1828) ; 

 Meade v. U. S., 9 Wall. 691; Wright, Am. Jl. Int. Law,- 12: 85, and supra, 

 note 75. 



85 " 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 Constitution can have no 

 operation in another country. When, therefore, the representatives or officers 

 of our government are permitted to exercise authority of any kind in another 

 country, it must be on such conditions as the two countries may agree, the 

 laws of neither one being obligatory upon the other." /n re Ross, 140 U. 

 S. 453 (1890). Nor is the "Judicial power of the United States" exercised 

 by congressional courts in the territories (Am. Ins. Co. v. Cater, i Pet. 

 511) ; nor by presidential courts organized in territory under military occupa- 

 tion (Neeley v. Henkel, 180 U. S. 109) or in annexed territory under mili- 

 tary government. (Cross z'. Harrison, 16 How. 164; Magoon, Reports, pp. 

 16, 30.) Such presidential courts may exercise local jurisdiction but may 

 not be given an admiralty and prize jurisdiction. (Jecker v. Montgomery, 

 13 How. 498.) 



''•'' Cushing, Att. Gen., 8 Op. 390, 1857. See also the Konigin Luise, 184 

 Fed. 170 (1910), and Wright, Am. Jl. Int. Law, 12: 71. 



I'ROC. AMER. PHIL., SOC. , VOL. LX., O, MAKCH 8, Jg22. 



