have made treaties. But the subjects of such treaties would have been determined by the limitations in their constitutions. One State may have a clear right to contract with another on a subject which that other might be precluded from attempting to make the subject of a binding contract, because of constitutional restraints. § 107. IV. That this power exists in the Government of the United States to regulate by treaty with any other government "the use of property belonging to States or the citizens thereof, such as canals, railroads, fisheries, public lands, mining lands, etc." These subjects seem to be such as might naturally need adjustment between contiguous countries. The fact that the property, the subject of the treaty, belongs to a State or an individual does not preclude it from being the subject of adjustment between neighbors. The title or ownership of property in no wise affects the propriety of its being made the subject of adjustment by treaties. So that none of these subjects suggested by Mr. Butler would by the most extreme State-rights' man be precluded from the domain of treaties. How else could a State that owns the right of fisheries adjust difficulties arising under them with its neighbor? The State is precluded by the Constitution from entering into treaties. To whom could it go for the adjustment of its rights except to that power which is lodged exclusively by the Constitution in the President and the Senate? But, though it is admitted that these properties mentioned as belonging either to a State or to individuals may be the subject of a treaty, it will not be denied that in the adjustment of those rights, all of the muniments of right and title secured in the Constitution of the United States to American citizens must be recognized when such property is the basis of a treaty. Should such a treaty attempt to deprive the State or the individual of any one of the species of property referred to without just compensation or without due process of law, it could hardly be claimed that such act would be valid. The character of the property also might constitute an important factor in determining the validity of such a treaty, for, if the proposition stated by Mr. Butler be broad enough to embrace as the subject of a treaty between Great Britain and the United States, the Capitol Building at Albany, New York, or the Penitentiary of that State or its Insane Asylums, it would seem to be doubtful whether such a treaty would be valid. Might not the taking of the Capitol of the State or any other instrumentality for the necessary discharge of its functions, tend to destroy the State? Or, if the property, the subject of the treaty, should be a railroad located in the United States, it would hardly be claimed that a provision in such treaty requiring the railroad to carry aliens at a lower rate than American citizens, or carry them free, would be valid. Justice White in Downes v. Bidwell,' said: "I cannot conceive how it can be held that pledges made to an alien people can be treated as more sacred than is that great pledge given by every member of every department of the government of the United States to support and defend the Constitution." Nor would any provisions attempting to regulate the use of a railway as an agency of interstate commerce be valid, since interstate commerce is placed by the Constitution under the exclusive regulation of Congress. But these examples only serve to illustrate in clearer form that though these classes of property may properly be the subjects of a treaty, they cannot be divested of the constitutional safeguards guaranteed in the Constitution in the making of such treaty. § 108. V. "To regulate the descent or possession of property within the otherwise exclusive jurisdiction of the States." This subject will be considered more appropriately and fully subsequently, when the cases that have been decided will be discussed.2 § 109. VI. "To surrender citizens or inhabitants of States to foreign powers for punishment for crimes committed outside of the jurisdiction of the United States or of any State or ter 1 182 U. S. 344, 45 L. ed. 1088, 21 S. C. 770. ritory thereof." We see nothing to which objection can properly be had to this claim of power. We see no attempt in this proceeding on the part of the treaty-making power of the Federal Government to deprive the State or a citizen thereof of any constitutional right. It has been decided that without a treaty of extradition, the United States has no right to extradite a criminal. It is therefore one of the questions peculiarly controlled by treaty and can only exist by treaty. The criminal's offense is against the petitioning State. Its laws have been offended. The State of his own citizenship has no cause of complaint against him. He has offended no law of the State, and his own State therefore could try him for no offense. His own State is prohibited by the Constitution from entering into treaties of extradition with foreign countries, and the only power that can enter into such a treaty is the government of the United States. He is as completely subject to the law of the United States as to those of his State. He is a citizen of the United States as well as a citizen of the State. His obligations are to both. His rights are equal in both and his duties and obligations to the law of each are equally binding. In granting to the Federal Government this power no right is yielded which he can claim from the State and no right accorded to him under the Constitution of the United States, is denied to him. The Government of the United States deals with him as a citizen of the United States, not as a citizen of the State, and yields him up to the State or country whose laws he has offended, to answer for his offense against those laws. § 110. VII. "That the power of the United States to enter into treaty stipulations in regard to all matters which can properly be the subject of negotiation between sovereign States is practically unlimited." This question has been partially considered under numbers II and III, and involves really the whole subject of this book. Mr. Butler in this claim, has carefully guarded the proposition in these words: "Which can properly be the subject of negotiation between sovereign States." The power being ex clusive, and a sovereign power, if it attaches to "proper" subjects only it would still be limited to such subjects, but if these subjects are unlimited then indeed is the power unlimited. Judge Story in construing the words "necessary and proper," as found in the coefficient clause of the Constitution,' says that the word "proper" means "bona fide, appropriate." Good faith in the use and selection of such subjects is absolutely necessary. No sinister motive must be involved, no attempt to do by indirection what cannot be done directly, and no attempt to use subjects in the negotiation of treaties whose control is placed in some department of the government of the United States by the Constitution, or which involve essential powers of the States; but the subject must be "bona fide, appropriate." To what? To the spirit and maintenance of the Constitution in all its parts; not to destroy it. So that if the negotiation of the treaty has for its end the taking of a right or power which is conferred by the Constitution upon another department of the Federal government, or by the Constitution is left to the States, as essential to their autonomy, that subject is not a "proper" subject of negotiation in a treaty. § 111. The views of Mr. John Randolph Tucker 2 on this subject are of interest. "A grave question has arisen whether the exclusive power of treaty-making, vested in the President and Senate, is unlimited in its operation upon all the objects for which a treaty may provide. Can a treaty by compact with a foreign nation bind all the departments of our own government as to matters fully confided to them; can it surrender or by agreement nullify the securities for personal liberty engrafted upon the Constitution itself; can it cede to a foreign power a State of the Union or any part of its territory without its consent; can it regulate commerce with foreign nations in spite of the power of Congress to regulate commerce with them; can it provide for the rates of duty to be imposed upon certain articles imported from foreign nations, or admit them free of duty, 1 Article I, § 8, cl. 18. 2 Tucker on the Constitution, Vol. II, p. 723. in the face of the power given to Congress to lay and collect taxes and duties; can a treaty appropriate money from the public treasury and withdraw it without the action of Congress; can a treaty dispose of any part of the territory of the United States, or any of their property, without the consent of Congress, which alone has power to dispose of and make rules and regulations concerning the territory and other property of the United States? These important questions have several times arisen for discussion in our history, and upon them authoritative decisions have been made by other departments of the government, which are based upon solid reason and sound principles of constitutional construction. "It cannot be denied that very many of these questions must be answered in the negative, or the consequence would be that, under the treaty-making power, the President and Senate might absorb all the powers of the government. In favor of the extreme claim of power for the President and Senate, it has been urged that a contract between the United States and a foreign nation must be conclusive against all departments of the government, because it is a contract; but the answer to this contention is obvious and conclusive. It involves the petitio principii, by assuming that the contract is complete though it trenches upon the power of the other departments of the government, without their consent. . . . A treaty, therefore, cannot take away essential liberties secured by the Constitution to the people. A treaty cannot bind the United States to do what their Constitution forbids them to do. We may suggest a further limitation: a treaty cannot compel any department of the government to do what the Constitution submits to its exclusive and absolute will. On these questions the true canon of construction is, that the treatymaking power, in its seeming absoluteness and unconditional extent, is confronted with equally absolute and unconditioned authority vested in the judiciary. Therefore, neither must be construed as absolute and unconditioned, but each must be construed and conditioned upon the equally clear power vested in the others. For example, Congress has power to lay and collect duties; the President and Senate have power to make and contract with a foreign nation in respect to such duties. Can any other construction be given to these two apparently contradictory powers than that the general power to make treaties must yield to the specific power of Congress to lay and |