280 WRIGHT— POWER TO MEET RESPONSIBILITIES. 



power ' to make the delivery ' unless under treaty or act of Con- 

 gress." ^° Congress has passed acts in pursuance of treaties of ex- 

 tradition, but the opinion has been expressed that Congress might 

 authorize extradition without treaty.^^ Since such a law, with the 

 above stated theory, could not be justified as the " punishment of 

 an offense against the law of nations " it is difficult to see where 

 the power of Congress would come from. 



It has been held that the federal Constitution prohibits extradi- 

 tion under state authority unless such procedure is expressly stipu- 

 lated in treaty or act of Congress. This is due to the express pro- 

 hibition of the states from treaty-making or agreement-making 

 without the consent of Congress. *'- 



B. Enforcement by Action of the Treaty Power. 



J23. Treaties as a Basis for Executive and Judicial Action. 



Treaties are the supreme law of the land and it might seem 

 tliat they would in themselves furnish sufficient authority for execu- 

 tive or judicial enforcement of the obligations they impose. This is 

 doubtless true of executive action. Courts have held that troops 

 may be interned and persons extradited by executive authority on 

 the basis of treaty alone.''" It has been held, however, that courts 

 cannot exercise criminal jurisdiction or compel the extradition of 

 fugitives unless Congress has passed enabling legislation.^* 



124. Treaties as a Basis for Congressional Action. 



Treaty provisions requiring positive enforcement within Amer- 

 ican jurisdiction have been of three kinds. Sometimes they state 

 definite acts which the government must prevent. Thus the V 

 Hague Convention of 1907 says, " a neutral power must not allow 

 any of the acts referred to in articles 2 to 4 to occur on its terri- 



60 Wirt, Att. Gen., i Op. 509, 521 ; Terlinden v. Ames, 184 U. S. 270, 289 

 (1902) ; Moore, Digest. 4: 248, 253. 



61 Willoughby, op. at., p. 479. 



62 Supra, sec. 90. 



63£jr parte Toscano, 208 Fed. 938: U. S. v. Robbins, Fed. Gas. No. 16175 ; 

 In re Metzger, 5 How. 176, 188; Crandall, op. cit., 230 et seq. 



6* The Estrella, 4 Wheat. 298; The British Prisoners, i Wood, and Min. 

 66 (1845). 



