of nationality of Central Government. the treaty-making power, 455. Power must be limited as no unlimited powers exist. After perusing the foregoing chapters the reader may think he is justified in presuming that the author does not consider that there are any limitations whatever on the treaty-making power of the United State either as to the extent to, or subject-matter over, which it may be exercised. Such, however, is not the case; the fact that the United States is a Constitutional Government precludes the idea of any absolutely unlimited power existing. The Supreme Court has declared that it must be admitted as to every power of society over its members that it is not absolute and unlimited; and this rule applies to the exercise of the treatymaking power as it does to every other power vested in the Central Government. The question is not whether the power is limited or unlimited, but at what point do the limitations begin." § 456. Degree of sovereignty retained by the people.— The provision in the Constitution that all powers not delegated to the United States by the Constitution, and not prohibited by it to the States, are reserved to the States respectively or to the people,' shows that, no matter to what extent sovereign powers may have been delegated to the Government, either Central or State, a certain element of sovereignty was retained by, and reserved to, the people of the United States, themselves. All sovereignty was originally vested in them, and the States and the Central Government alike derived § 455. 1 Murphy vs. Ramsey, U. S. Sup. Ct. 1885, 114 U. S. 15, MATTHEWS, J., Loan Ass'n vs. Topeka, U. S. Sup. Ct. 1874, 20 Wallace, 655, MILLER, J. 2 In this chapter the limitations on the treaty-making power will be discussed with as little repetition as possible; some of the cases already cited and some of the opinions of publicists referred to in chap. IX of vol. I are necessarily "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Const. of the U. S., Art. X of Amendments. The Constitution is included in full in INSULAR CASES APPENDIX, Vol. I, pp. 519, et seq. whatever sovereignty they possess from them, and, therefore such residuum of sovereignty as has not yet been delegated to either State, or Central Government must necessarily still reside in the people. In this connection the ratification of the Constitution by the people, and not by legislatures of the States, is an important factor. By such ratification the people exercised their absolute ownership of complete sovereignty to transfer a portion of it from the State governments to the Central Government, and in so doing they vested certain powers in the Central Government, and at the same time expressly prohibited the States from ever exercising them. The Central Government, deriving its powers from the people, obtained them just as broadly, and with as complete power to exercise them, as the State governments obtained from the same source the right to exercise those other sovereign and plenary powers which were lodged in the State governments by the people of each State respectively. 457. Treaty-making power and the States' Rights school. The anti-Nationalist party has been represented in the legal forum as well as in the political arena; it has made every effort to limit the powers of the Central Government, and to extend those of the States. If, however, there are any limitations upon the treaty-making power, they do not result in extending State powers as the States are absolutely prohibited from exercising the treaty-making power in any respect whatever. The Tenth Amendment to the Constitution which has just been quoted, applies with peculiar force to the treaty-making power; under its terins, as treaty-making is prohibited to the States, all power which is not delegated by the Constitution to the Central Government in regard to the making of treaties is reserved, not to State governments, but to the people. In determining the extent of, and the limitations upon, the treaty-making power of the United States, so far as the power has been delegated by the Constitution,1 it must be remembered that the power has been delegated § 457. ing States rather than of the power 1 These remarks apply more par- which the Central Government posticularly to the limitations from sesses as an attribute of sovereignty the standpoint of the delegated and nationality, and which is dispower in regard to matters affect-cussed in chapter IV of volume I. to the Central Government in general terms, and the States have been prohibited from exercising it in any manner whatsoever. The Central Government necessarily possesses, therefore, every particle of power which can possibly be delegated in general terms to any Constitutional government, and in its absolute entirety except so far as the people have reserved any part of that power to themselves. The power can, and must, therefore, be exercised by the Central Government to its complete extent, except so far as the fundamental limitations exist which were referred to in Chapter I, as the general elementary rule applies that constitutional governments which derive their power from the people must exercise the plenary powers delegated to it in such manner that the trust reposed by the people in the government, which they have created for their own benefit and protection, is not betrayed or abused. § 458. Plenary power restrained only by fundamental principles on which government is based.-In fact the power is, and must be, plenary, that word being used in its general significance, except so far as it has been limited by the rule laid down by the Supreme Court that where plenary powers have been reposed in the Government of the United States they must be exercised in conformity with the fundamental principles of liberty which form the basis of our constitutional government.1 The Central Government of the United States possesses absolute power; it may, however, be restrained from improperly exercising it. Just how such restraint can be placed upon it is a problem which would be difficult to solve even if the conditions were stated. It is impossible to solve it before the occasion requiring its solution arises. A similar rule, however, would apply to the improper action of a despotic government; in speaking of the unlimited treatymaking power vested in absolute monarchs, Professor Woolsey says: "Even the most absolute despot may make treaties, which neither his subjects nor third parties ought to regard as binding. Can the house of Romanoff, for instance, resign $ 458. | pp. 62, et seq., volume I, and in IN 1 See the cases on fundamental SULAR CASES APPENDIX at end of limitations collated in note to § 36, volume I. the throne of Russia to whom it pleased? The true view here is, that the province of absolutism is not to dispose of the national life, but to maintain it without those checks on the exercise of power which exist elsewhere. No power, however uncontrolled, was given to destroy a nation or can lawfully do so." 2 $459. Limitations, if any, so far undefined and not judicially determined.-All discussion as to the existence of limitations upon the treaty-making power of the United States must necessarily be from a purely academic standpoint. While the necessity for such discussion does not exist, every student of constitutional principles, if not every American citizen, naturally considers that limitations upon absolute power not only ought to exist, but that they ought to exist, not in the abstract but in the concrete, and be definable in express terms. If, however, any limitations do exist, they cannot be defined or expressed beyond the statement made in the preceding section that the power must be exercised in accordance with the fundamental principles of our government, and, to refer again to Professor Woolsey, for the purpose of maintaining national life and not for the purpose of destroying it. Any discussion on this subject must necessarily be academic, because whatever limitations. do exist have never been judicially defined, as no treaty has ever been declared void by any court of the United States. Furthermore it is still an undecided question whether the judicial department of the court has the power either to declare void a treaty made and ratified according to constitu tional methods or to declare that the executive and legislative departments of the government exceeded the power vested in them by the people. § 460. Treaties within the domain of the Political Departments of the Government; effect of their action on the Judiciary.-It is indeed doubtful whether treaties can be declared void, as any change in, or abrogation of, a treaty is a matter wholly within the legislative department of the government and wholly beyond that of the judiciary. The 2 Woolsey's International Law, § 103, p. 160, 6th Ed. § 459. 1 Woolsey's International Law, p. 160, 6th Ed. 103, Supreme Court possesses the greatest judicial powers that have ever been vested in any court of any nation. It is not only fully conscious of the great powers which it possesses and of its right to use them, but it is extremely jealous, as it should be, of its rights and powers. One of the few declarations that this court ever made in derogation of its own supreme judicial power was that if the Supreme Court possesses the power to declare a treaty void, it will never exercise it but in a very clear case indeed.' That question has never been decided, because such a "clear case" never has been presented to the court as would justify the exercise of the power, if it does exist. The Government of the United States is divided into three departments: Executive, Legislative, Judicial.' These departments each have their separate spheres of action; one department cannot interfere with the functions of the other, or delegate its own powers to the other. The treaty-making § 460. 1 Ware vs. Hylton U. S. Sup. Ct. 1796, 3 Dall. 199, see p. 237, CHASE, J. 2" All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." U. S. Const. art. I, § 1. "The executive Power shall be vested in a President of the United States of America." Id. art. II, § 1. "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Id. art. III, § 1. 8 Field vs. Clark, U. S. Sup. Ct. 1892, 143 U.S. 649, HARLAN, J. This case involved the validity of the Tariff Act of October 1, 1890, (26 U. S. Stat. at L. pp. 567, et seq); one of the points raised was that the reciprocity and certain other provi sions of this act delegated legislative and treaty-making powers to the President. The court held that if such powers had been delegated the act would certainly, as to such portions, have been unconstitutional, but that the powers delegated were executive and not legislative. The syllabus says: "Congress cannot, under the Constitution, delegate its legislative power to the President," and the opinion says (p. 692): "That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution. The act of October 1, 1890, in the particular under consideration, is not inconsistent with that principle. It does not, in any real sense, invest the President with the power of legislation. 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