another question, outside of this case. If reclamation has been made, then it becomes a question of legal right. Record, p. 1781.

I am now constrained to inquire whether the learned arbitrator may not have erred in deeming himself so restricted by the provisions of the protocol under which he sat. By its terms he was required to decide the questions submitted to him "according to the rules of international law existing at the time of the transactions complained of." This, in my judgment, was not intended in any way to limit the scope of his inquiries into the merits of the cases before him, but merely to insure the investigation of those merits upon principles of international law contemporaneous with the alleged wrongs, undoubtedly the true test of Hayti's liability. If this be the true construction of the protocol, then I am unable to see why the fact that the government of the United States had made a reclamation in Pelletier's behalf excluded consideration of the question whether that government "ought to have made a reclamation in his behalf." It would seem that the question of "legal right" was vitally connected with the question whether a reclamation ought to have been made; for both these questions depended for their solution on the application of the rules of international law to the facts of the case. Those facts were to be ascertained by the arbitrator. The department of State in submitting the claim to arbitration had acted on a prima facie case; and one of the expressed objects of the submission was that there might be a full investigation of the facts. In agreeing to such an investigation, it would seem to be implied that the department of State did not desire that its previous action on ex parte information should be regarded as a prejudgment in any respect of the case submitted.

Was not the reply very properly made by one of the counsel for Hayti, to whom the learned arbitrator's remark was addressed?

"These questions were left by the two governments to your honor to pass upon after the evidence on both sides was submitted to you; therefore Pelletier did not acquire any legal right prior to his hearing." Record, p. 1781.

The learned arbitrator declared: "In my opinion it is beyond doubt that had the bark been captured and brought into an American port, when she was seized at Fort Liberté, she would have been condemned by the United States courts as an intended slaver."

Now if the bark when she entered the harbor of Fort Liberté, within the unquestioned territorial jurisdiction of Hayti, loaded with the implements of her nefarious errand, and as the evidence led the arbitrator to conclude, intending there to consummate ber unlawful enterprise, could have been condemned by the courts of the United States as an intended slaver, why could not the Haytian courts condemn her and try and imprison her commander on the same ground, if as is not questioned, Haytian law made provision therefor. It matters not what the Haytian law may have called the offense, whether it described it as piracy, or as attempted piracy, or as attempted slavetrading, or whether as is the case, it punished attempted slave-trading within Haytian jurisdiction as piracy. The protocol, it would seem, did not restrict the learned arbitrator to the consideration of the question whether Pelletier was guilty of piracy as defined by the law of nations. It merely provided that his claim should be decided "according to the rules of international law existing at the time of the transactions complained of." This, it is conceived, did not mean that the arbitrator was to be restricted to the decision of the question whether Pelletier was guilty of the offenses of which he was convicted, as defined by international law, but only that in deciding the question of his trial and imprisonment, and of the condemnation of his vessel, the arbitrator was to ac. cord to Pelletier the rights to which in 1861 he was by international law entitled, and to determine whether any of those rights were violated by Hayti.

If, as I believe, this construction of the protocol is correct, it is not seen that the learned arbitrator was precluded from inquiring whether Pelletier was guilty of piracy by Haytian law, and properly convicted of that offense by the Haytian court. It was a rule of international law in 1861, and is a rule of that law now, that offenses committed in the territorial jurisdiction of a nation may be tried and punished there, according to the definitions and penalties of its mu

pose the international law of the case. It matters not what the offense may be termed, if it appear that a violation of the municipal law was committed and punished.

In line with the above citation, we may notice a passage on page 1779 of the Record. Counsel for Hayti submitted the following proposition: "And I submit, further, that if the court had no jurisdiction over the facts that transpired at Grand Cayman, according to the principles of international law, it did have jurisdiction over the acts of Pelletier alongside the coast of Hayti."

To this the learned arbitrator replied: "If the acts of Pelletier constituted piracy under international law the courts of Hayti had a right to try and condemn him, and if they made a mistake in the evidence that is an immaterial matter. If it was not piracy under international law then another question arises. The question whether it was piracy under the Haytian statute is not questioned in this case."

If the question whether Pelletier's conduct was piracy under the Haytian statute was not doubted it is conceived that there was nothing in the protocol which excluded the cousideration of that questiou.

The municipal law of Hayti is not alone in defining the slave trade as piracy. It is so denominated by the laws of the United States (Rev. Stat., § 5376), and is punishable with death; and if the government of the United States, like that of Hayti, were to make attempts at slave-trading equivalent to the consummated act and equally punishable therewith, it is not supposed that the rules of international law would thereby be violated.

I cannot presume that the government of the United States by stipulating for the decision of the Pelletier claim according to the rules of international law existing in 1861 intended to deny to Hayti the right at that time to execute within her territorial jurisdiction her laws against slave-trading or piracy therein attempted, and I am compelled to declare that had such been this government's expressed intention 1 could not recommend that it should now be executed in the light of the facts developed in the arbitration, especially as the arbitrator expressly reserved the question of the rightfulness of the reclamation for the consideration and decision of the executive.

The duty of the executive to refuse to enforce an award which, notwithstanding the unimpeachable

character, as in the present case, of the arbitrator, turns out to have been inequitable or unconscionable, has been maintained in repeated rulings of this department, and is sanctioned by the Supreme Court of the United States.

In Frelinghuysen v. Key, 110 U. S. 63, the question arose on an award, not as in the present case, under an informal agreement, but under a treaty. Yet even of a treaty award Chief Justice Waite said: "International arbitration must always proceed on the principles of national honor and integrity. Claims presented and evidence submitted to such a tribunal must necessarily bear the impress of the entire good faith of the government from which they come, and it is not to be presumed that any government will for a moment allow itself knowingly to be made the instru ment of wrong in any such proceeding. No technical rules of pleading as applied in municipal courts ought ever to be allowed to stand in the way of the national power to do what is right under all the circumstances. Every citizen who asks the intervention of his own government against another for the redress of his personal grievance must necessarily subject himself and his claim to these requirements of international comity."

The views thus expressed are in entire accordance with the position taken by my predecessors whenever the functions of the executive in questions of this class have been discussed. This position is thus summed up by Mr. Frelinghuysen in a letter to Mr. Suydam, dated September 25, 1882: "It may be here observed that this government exercises a broad discretion in determining what claims it will diplomatically present against other nations. It has not lent, and will not lend, its influence in favor of fraudulent claims. And when in behalf of an individual this government demands of another power payment of money, it should not close its doors against an investigation into the question whether the apparent title of the claimant to the money is valid, or because of his own fraud, is void. Were the case reversed this gorernment would contend for that right. Any other doctrine must impair the dignity and imperil the rights of those who have honestly obtained American citizenship."

In a subsequent letter of Mr. Frelinghuysen's the distinctions are expressed as follows: "The claims presented to the French commission are not private claims but governmental claims, growing out of injuries to private citizens or their property, inflicted by the government against which they are presented. As between the United States and the citizens, the claim may be in some sense regarded as private; but when the claim is taken up and pressed diplomatically, it is as against the foreign government a national claim.

"Over such claims the prosecuting government has full control; it may, as a matter of pure right, refuse to present them at all; it may surrender them or compromise them without consulting the claimants. Several instances where this has been done will occur to you, notably the case of the so-called French spoliation claims. The rights of the citizen for diplomatic redress are as against his own, not the foreign government." (Mr. Frelinghuysen, secretary of State, to Messrs. Mullan and King, February 11, 1884, MSS. Domestic Letters.)

Caroline, returned to Brazil, against the claimant's protest, money to be paid him under a diplomatic settlement. See Senate Rep. No. 1376, Fortieth Congress, first session.

The precedents in this department therefore fully sustain the principle stated by Chief Justice Waite, that as between the United States and the claimants, the honesty of the claim is always open to inquiry for the purpose of fair dealing with the government against which, through the United States, a claim has been made. Frelinghuysen v. Key, 110 U. S. 63.

Assuming Pelletier's naturalization as a citizen of the United States, the question reserved by the arbitrator of his right, being a tortfeasor, to claim compensation for the consequences of his tort, must be denied. Still more strongly must this view be held, when in order to consummate the tort, he threw off the name in which he claims to have been naturalized, and assumed one more distinctively French, erasing from the stern of his ship the name William, under which she was registered, and putting in its place that of the Guillaume Tell.

On the general question of turpitude of cause of action as barring the present claim, I am now prepared to give an emphatic, and I trust, final decision. Even were we to concede that these outrages in Haytian waters were not within Haytian jurisdiction, I do now affirm that the claim of Pelletier against Hayti, on the facts exhibited, must be dropped, and dropped peremptorily and immediately, by the government of the United States. "The principle of public policy," said Lord Mansfield, in Holman v. Johnston, Cowp. 343, "is this: Ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act." Ex turpi cansa non oritur actio; by innumerable rulings under the Roman common law, as held by nations holding Latin traditions, and under the common law as held in England and the United States, has this principle been applied. The lex fori determines the question of turpitude; and nowhere, and with better reason, has the slave-trade been stamped with such an infamy and turpitude as in England and the United States.

It may be said that the question is in this department res adjudicata. If it were, I would not have the slightest hesitation in making the report I now make, that the claim is one which cannot now be pressed by the United States, either as a matter of honor or as a matter of law. But the case is not res adjudicata. By Mr. Seward the claim, as we have seen, was peremptorily rejected, and his action in this case was affirmed during the secretaryship of Mr. Fish.

From Mr. Evarts, it is true, instructions emanated directing its presentation to Hayti, with the suggestion of arbitration, and by Mr. Langston, then minister at Hayti, this demand was urged, as has been seen, in terms that almost compelled submission. Mr. Evarts' instructions however were based on reports from the examiner of claims, now on file in this department; and these reports rest exclusively on the prima facie case presented by the claimant, the case of Hayti in reply, not from the nature of things, being then before the department. Mr. Blaine and Mr. Frelinghuysen took matters as they found them, the case of Hayti not then being heard.

Actions of this class can no more be regarded as res adjudicata than can the preliminary binding over of a defendant, on the bare case of the prosecution, be re

ing in court, comes on for trial. Now for the first time has Pelletier's claim, together with Hayti's reply, appeared for adjudication in this department; and with this full case before me, and with this very question reserved by the learned arbitrator who has made the award, I report, that in my judgment, after

carefully reviewing the proofs, the claim, for the reasons I have stated above, cannot be entertained by the United States. And I may add that in this particular case my opinion is sustained by the report of the Senate committee, by whom both sides were heard, and on the question of disturbance of port tranquillity, by numerous adjudications of this department.

It may be finally urged that the award in the present case is conclusive and cannot be disturbed. But this proposition cannot be maintained. No matter how solemn and how authoritative may be a judgment, it is subject to be set aside by the consent of the parties. To the awards of international commissions, were the award in this case to be considered as such, this position applies with peculiar force since, as is elsewhere noticed in this report, it is a settled principle of international law that no sovereignty can in honor press an unjust or mistaken award, even though made by a judicial international tribunal invested with the power of swearing witnesses and receiving or rejecting testimony. But the award before me is not that of a judicial international] commission, invested with such powers.

To constitute such a tribunal, either a treaty, duly approved by the Senate so as to be the law of the land, or an enabling statute, is necessary. The judicial and the executive departments are distinct, and unless by a treaty or an act of the Legislature, in subordination to the Constitution, the functions of the former, so far as concerns the determination of litigated issues of fact, cannot-be vested in the latter. The department of State therefore cannot either through its own officers or a commission appointed by it, take and mould sworn testimony in order to determine litigated issues of fact. Hence the conclusions of an international commission, sanctioned solely by the executive department of the government, are to be regarded, to adopt the language of the Supreme Court, as an award "which would have bound nobody and would have been at most a friendly recommendation." Miller, J., Great West. Ins. Co. v. W. S., 112 U. S. 197.

It does not cure the proceedings in the present case that the distinguished gentleman who acted as arbitrator administered oaths to witnesses, issued commissions, and determined as to what questions were to be put to witnesses, in this way shaping the testimony produced. In the opinion of this department these proceedings, so far as they were matters of distinctively judicial prerogative, were ultra vires, and so was the judgment entered, so far as it partook of a distinctively judicial type.

In taking this position I am in no way impeaching the right of the executive, either through the secretary of State or through agents appointed by him, to negotiate the settlements of private claims with foreign powers. Such negotiations may be likened to the conferences, in matters of private litigation, of parties through their counsel or through referees, to settle, on the basis of affidavits or voluntary statements of the parties, the matter in dispute.

Informal conferences of this class have been found, and will be found hereafter of great use. But not being in the shape of a treaty they do not, in the United States, have the effect of a law investing the officers in question with the judicial power of taking and limiting testimony and deciding judicially on the questions submitted to them. Hence the awards of such tribunals, being inchoate and merely recommendatory, are to be regarded as less obligatory than are awards made under treaties. And as awards under treaties when the arbitrator had judicial powers, and when the witnesses testifying could be held criminally responsible for false testimony, will not be enforced if shown to be unconscionable and unjust, a fortiori is this the

rule with awards in cases in which the arbitrator had no judicial powers, and when the oaths administered were nullities.

In view of the position taken by Hayti, as exhibited in the records of this case, it becomes now incumbent on the government of the United States to determine whether it will enforce the payment by Hayti of this award.

Aside from the exhausted condition of her treasury, which would preclude voluntary payment at present, it is not to be expected that any nation, viewing this case as Hayti does, could make such payment except when forced to do so by the application of a superior force. Hayti is a republic in which not merely the government but the great body of the population are of negro descent. Pelletier was a notorious slavetrader, and the money awarded to him in this case was for an imprisonment imposed on him in Hayti for an attempt to abduct Haytian citizens and sell them as slaves. To pay this award to Pelletier would be not merely to recognize the position that Hayti had no jurisdiction of an attempt in her own territorial waters to abduct and enslave her citizens, but that the person making such an attempt is to receive a large indemnity for the punishment, in itself by no means excessive, inflicted on him for the crime.

ces.

Were the positions reversed; were it to appear that a foreign slave-trader had appeared in one of our ports and had sought to obtain fraudulent possession of colored citizens of the United States for the purpose of reducing them into slavery; were in case of the conviction of such a miscreant in our courts, his government to call upon us to pay a large indemnity for the punishment to which he had been subjected, the answer of the people of the United States, of whatsoever race, would be one of prompt and resolute refusal, no matter how serious might be the consequenWhat the United States would do under such circumstances is the peculiar right of Hayti. To Hayti it is not merely question of the sovereignty over her own territory, but that of her power to protect from enslavement the race by which that territory is almost entirely peopled. Voluntary payment of this award by Hayti we therefore cannot look for. Whether there is to be compulsion applied in the shape of reprisals to enforce payment it is the constitutional prerogative of Congress to determine. But I do not hesitate to say, that in my judgment, the claim of Pelletier is one which this government should not press on Hayti, either by persuasion or by force, and I come to this conclusion, first, because Hayti had jurisdiction to inflict on him the very punishment of which he complains, such punishment being in no way excessive in view of the heinousness of the offense, and secondly, because his cause is of itself so saturated with turpitude and infamy that on it no action, judicial or diplomatic, can be based.

POLICE POWER-ADULTERATED MILK.

MINNESOTA SUPREME COURT, NOVEMBER 11, 1886.

BUTLER V. CHAMBERS.*

A statute provides as follows: "No person shall manufacture out of any oleaginous substance or substances, or any compound of the same, or any compound other than that produced from unadulterated milk or cream from the same, any article designed to take the place of butter or cheese, produced from pure, unadulterated milk, or cream from the same, or shall sell, or offer for sale, the same as an article of food. This shall not

*S. C., 30 N. W. Rep. 308.

apply to pure skim-milk cheese, made from pure skimmilk. Held, valid, as a legitimate exercise of the police power of the State.

SUIT

UIT was brought by the plaintiff in the District Court of Ramsey county for the purchase-price of certain merchandise. Defendant in his answer alleged that said merchandise was a substance manufactured and designed to take the place of butter; that the same was made from other than unadulterated cream, etc.; that said merchandise was offered for sale, sold and delivered in violation of and contrary to the provisions of the act of March 5, 1885, relating to the sale and manufacture of unhealthy and adulterated dairy products; and that by reason thereof said sale was illegal and void, and defendant never became obliged to pay for said merchandise any sum or amount. Plaintiff demurred to this complaint on the ground that a counter-claim or defense was not established by it. The demurrer was sustained in the District Court on the ground that the statute referred to in the answer was unconstitutional. From this decision defendant appeals.

Warren, Stevens & Lawrence, for respondent.
Rogers & Hadley, for appellant.

un

VANDERBURGH, J. The demurrer to the answers brings up the constitutionality of section 4, chapter 149, Laws 1885. The act is entitled, "An act to prohibit and prevent the sale or manufacture of unhealthy or adulterated dairy products." Section 1 provides a penalty for selling or exposing for sale unclean, impure, unhealthy, adulterated or wholesome milk," or the product thereof. Section 2 provides that "no peason shall keep cows for the production of milk for market, or for sale or exchange, or for manufacturing the same into articles of food, in a crowded or unhealthy condition, or feed cows on food that is unhealthy, or that produces impure, unhealthy, diseased or unwholesome milk;" and also prohibits the manufacture or sale of the products of such milk. Section 3 prohibits the sale or delivery to any butter or cheese manufactory of "any milk diluted with water, or unclean, impure or adulterated milk." Section 5 provides that a penalty for exposing for sale butter or cheese branded or labelled with a false brand. Section 6 regulates the sale of condensed milk, and other provisions relate to the appointment and duties of the dairy commissioner.

These provisions of the statute are all unquestionably within the legislative authority; but it is contended that section 4 is unconstitutional especially on the ground that it is an infringement upon the rights, privileges and liberty of the citizens without due process of law. The section in question reads as follows: "No person shall manufacture out of any oleaginous substance or substances, or any compound of the same, or any compound other than that produced from unadulterated milk, or cream from the same, any article designed to take the place of butter or cheese, produced from pure, unadulterated milk, or cream from the same, or shall sell or offer for sale, the same as an article of food. This shall not apply to pure skim-milk cheese, made from pure skim-milk."

The defendant contends that these provisions fall within the general police powers of the State, and are therefore valid.

In 1881 the Legislature passed an act, entitled "An act to regulate the traffic in oleomargarine." Laws 1881, ch. 133. This act provides that any person who shall knowingly sell or offer for sale any article or substance in semblance of butter, not the legitimate product of the dairy, made exclusively of milk and cream, but into the composition of which the oil or fat of animals, or melted butter, or any oil thereof,

It cannot be doubted that the act of 1881 was a legitimate exercise of police power. The public may be protected by appropriate legislation against imposi tion in the purchase of articles for consumption; and if, as we may assume, the prevalent compounds resembling butter in appearance and flavor, and put on the market as a substitute for it, and generally known as oleomargarine," "butterine," etc., are liable to deceive and mislead purchasers and consumers as to the real nature of the product, and especially if such preparations are made of unwholsome ingredients, then we think there may be sufficient reasons why the Legislature may in its discretion meet the evil sought to be remedied by provisions for the suppression of the manufacture and sale of such artificial compounds altogether. State v. Addington, 12 Mo. App. 217; S. C., 77 Mo. 110; People v. McGann, 34 Hun, 361.

It cannot be necessary, at this day, in view of the numerous decisions of the State and Federal courts, to enter into any elaborate discussion to show that the Legislature may exercise such powers on behalf of the State. As respects the right or liberty of the citizen to engage in business, and conduct industrial pursuits, these privileges are to be enjoyed in subordination to the general public welfare, and all reasonable regulations for the preservation and promotion thereof. "All property," says the court in Com. v. Alger, 7 Cush. 85, "is held subject to the general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations, established by law, as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient." Thorpe v. Railroad Co., 27 Vt. 149.

The reasonable limits of the exercise of such power it is not easy to defiue. It is not a matter of caprice or unlimited discretion on the part of the Legislature, but these questions can usually be best determined as cases arise, and within proper limits it is for the Legislature to judge as to the extent and character of restrictive measures which may be found necessary in any particular class of cases.

In Metropolitan Board of Excise v. Barrie, 34 N. Y. 666, the court say: "A State is not sovereign without the power to regulate all its internal commerce as well as police. It is a bold assertion at this day that there is any thing in the State or United States Constitutions conflicting with or setting bounds upon the legislative discretion or action in directing how, when and where a trade shall be conducted in articles intimately connected with the public morals, public safety or public prosperity; or indeed to prohibit and suppress such traffic altogether, if deemed essential to effect those great ends of good government."

It is also well settled that such laws are not invalid because in conflict with the power of Congress over com

merce.

In the License cases, 5 How. 504, it is said: "A State is not bound to furnish a market for imported goods, nor to abstain from the passage of any law which it may deem necessary or advisable to guard the health or morals of its citizens."

And so in Bartemeyer v. State, 18 Wall. 129, it was held that such legislation was not in conflict with the fourteenth amendment of the Federal Constitution. 35 Am. Dec. 332.