438 WRIGHT— UNDERSTANDINGS CONCERNING 



These matters are ones upon which a proper decision might be 

 expected from a comprehensive view of international relations, 

 and hence the treaty power enjoys a greater freedom of action than 

 in those of the former category. 



Another class of treaty provisions are by nature self-executing, 

 but because of historical traditions and constitutional interpreta- 

 tion, require legislation to be executable. Here are included treaties 

 (6) defining crimes and extending criminal jurisdiction. The com- 

 mon law has been traditionally assiduous in protecting the individual 

 against arbitrary criminal punishment, and this spirit, especially in 

 reference to criminal procedure, has been embodied in Article 3, 

 Section 2, Clause 3, the Fifth and Sixth Amendments, but federal 

 courts are not denied a general criminal jurisdiction by any specific 

 clause of the Constitution, and in some earlv cases they actually 

 assumed jurisdiction of crimes defined by customary international 

 law. This view has, however, changed, and it is now held that 

 the criminal jurisdiction of federal courts it entirely statutory.*'' 

 Hence, treaty crimes must be incorporated in acts of Congress be- 

 fore they become cognizable in federal courts.^" 



In general it may be said that where the cooperation of Congress 

 is necessary to carry out a treaty, Congress ought to act, exercising 

 discretion only as to the means most suitable for attaining the ends 

 contemplated by the treaty, and the duty is none the less binding in 

 international law and constitutional understanding from the fact 

 that the Constitution furnishes no power to compel it. The entire 

 system of the Constitution demands that each department accept in 

 good faith and cooperate in carrying out the undertaking of the 

 other departments. But such cooperation cannot be relied upon 



46 Supra, sees. 128, 129. 



4'^ Congress has passed laws giving courts jurisdiction over many ofifenses 

 against international law, supra, sees. 1 12-122. Although State courts must 

 regard treaties as the supreme law of the land, they appear to be excluded 

 from jurisdiction of treaty crimes by the Judicial Code, sec. 256, cl. i, which 

 gives the Federal courts exclusive jurisdiction " of all crimes cognizable under 

 the authority of the United States." A treaty crime would probably be con- 

 sidered in this category, even if, because of the failure of Congress to act, 

 the Federal courts could not exercise jurisdiction. 



