"The general power to make treaties vested in the President and Senate is met by a specific grant of power to do certain things above referred to. Shall the general authority be limited by the specific grant of power to Congress, or the latter yield to and be submerged by the former? How can both stand in harmony? Clearly thus: The general power to make treaties, to establish the relation of contract between the United States and a foreign country, is for the executive branch. Negotiation of terms of a treaty is for the President and Senate. But before these terms can deprive Congress of its constitutional functions its consent must be obtained; and while Congress is not a part of the treaty-making department, neither are its legislative functions any part of the treatymaking department; and both must therefore concur in the stipulations of the treaty before it can be 'a treaty made under the authority of the United States,' which are the terms used to make any treaty the supreme law of the land (Constitution, Article 6, clause 2). It must pass a law as 'necessary and proper for carrying into effect this power' to make treaties, 'vested in another department of the Government of the United States.' "This construction of the Constitution makes it harmonious. The contrary construction would give to the President and Senate the power by treaty to emasculate Congress, to strip it of its power to perform its duties to the people, and would give authority to the treaty-making department by compact with a foreign foe to destroy the Constitution. "The same reasoning applies to a treaty which regulates commerce, in which, as I shall hereafter show, is included the power to regulate, limit, and forbid the migration of aliens to this country. Take another class of necessary limitations on the treaty-making power. Could a treaty alienate a part of the territory of the Union, when Congress has the express power to dispose of it? Or could a treaty give one of the States to a foreign power? Or could one of the States by treaty be surrendered to Great Britain as a Botany Bay for its convicts, an asylum for its paupers, or a hospital for its diseased and insane population? "And the reason of the construction for which I contend will readily appear from a consideration of the balances of the Constitution. "A law to be operative must have the concurrence of a ma jority of the people of the States represented in this House, of a majority of the Legislatures of the States represented in the Senate, and the approval of the President, representing all the States and the people of the States. The requisition of these concurrent voices of the States and people is a protection to them against injurious action by the Government. Each is a check upon inconsiderate action by the others. "But how as to the treaty power? The President secretly negotiates, secretly proposes a treaty to the Senate for ratification, and the Senate deliberates with closed doors upon its ratification. Did the Constitution intend to give such power, as is claimed over the Constitutional functions of Congress, to the President and Senate acting in secret, and properly so in many cases? From this review, I feel justified in holding that if any treaty seeks to bind the United States to a foreign country in respect to the functional powers of Congress we are not open to a charge of bad faith if Congress refuses to sanction a divesture of its constitutional authority to deal with any subject intrusted to it by specifically granted powers in the Constitution of the United States." § 15. Judge Cooley in his "Constitutional Limitations," 1 speaking of the treaty-making power says: "It is subject to the implied restriction that nothing can be done under it which changes the Constitution of the country or robs a department of the government or of any of the States of their constitutional authority." And in the Forum, June 1893, page 397, the same distinguished author says: "But though no limitations are laid upon the power in the National Constitution, some exist in the very nature of things which the treaty-making power must be expected under all circumstances to respect and observe. We say this, having in mind only what we suppose to be a general rule applicable whenever the extent of the treaty-making authority of any country comes in question; all the conditions under which it has come into existence are to be considered; the racial and other peculiarities of the people; what the country is and its situation; the nature of established institutions, and so on, for all these are in mind when the authority is created, and in some sense are of its substance, whatever may be the words under which it is expressed. . . . Then the treaty-making power, whatever be the nature of the government, if to be exercised by any subordinate of the sovereign and not by the sovereign directly, must not set aside or disregard any authoritative expression of the sovereign will, and it must not do acts or enter into negotiations that tend to undermine or overturn any existing institution of the country, or to change in any particular the established government. . . . When a treaty is said to be the supreme law, it is nevertheless to be understood that the Constitution, which is the highest expression of sovereign will and the authoritative representative of sovereign power in the nation, in fixing limitations upon the exercise of authority under it in regard to the subjects above indicated and many others, restrains the treaty-making power quite as much as any other. If it did not, and any treaty entered into in due form was in itself necessarily supreme law, a State might possibly by the force of it be set off from the Union to another nation, or the government might gradually and imperceptibly be overturned through a line of precedents constituting what at the time were perhaps not seen to be encroachments." § 16. Alexander Hamilton, writing to General Washington July 9, 1795, says: "A treaty cannot be made which alters the Constitution of the country, or which infringes any express exceptions to the power of the Constitution of the United States. But it is difficult to assign any other bounds to the power." 1 § 17. Professor Thayer,2 in a note says: "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the 1 Hamilton's Works, Vol. IV, p. 342. "Cases on Constitutional Law," Vol. I, p. 373. territory of the latter, without its consent. Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country." § 18. Mr. Blaine, when Secretary of State, was called upon to consider this question in relation to the Chinese question. A letter of his of March 25th, 1881, on this subject, to Chen Lan Pin, the Chinese Ambassador, is of great force, and is fully quoted herafter.1 § 19. The following letter is of interest, bearing also on this subject: "No. 1509. "SIR: MR. HAY TO MR. TOWER 2 "DEPARTMENT OF STATE, WASHINGTON, July 19, 1899. "Referring to previous correspondence in regard to legislation enacted or proposed to be enacted in various States of the Union unfavorable to foreign insurance companies, and with reference particularly to the suggested negotiation of a treaty between the United States and Great Britain on the subject, with the view of averting the injury with which British insurance companies are threatened by discriminatory legislation on the part of several of the United States, I have the honor to say that the negotiation of such treaty would probably be futile on account of the many difficulties and obstacles which it would be likely to encounter from the indisposition of the people of the United States to suffer encroachment upon the ordinary and constitutional exercise of the legislative functions of the respective States by the making of treaties which are passed on by only one branch of the Federal Congress but which have the force of the supreme law. The fact that such treaties were made with Switzerland and Belgium could hardly be considered as a precedent for such enactment of law in the form of a treaty with nations having the great commercial interests of Great Britain. However much I might be pleased to respond affirmatively to your request, yet in the light of all 1 See Chapter IX, p. 252. Foreign Relations of the U. S. 1899, p. 346. the circumstances and of the vigilance with which any apparently important invasion of the rights of the States to regulate their own domestic concerns is guarded against, I am persuaded that such treaty, if negotiated, would fail of ratification by the Senate. "For these reasons the proposed negotiation would, in my judgment, be fruitless, even if such treaty could be agreed upon and submitted to the Senate. "I have etc., "JOHN HAY." § 20. Professor Amos S. Hershey, in an article discussing "The Japanese School Question and the Treaty-making Power," closes his discussion in the following words: "The writer, although by no means a strict constructionist, does not believe that the federal government has the right, by treaty or otherwise, to encroach upon the police power or reserved rights of the States to the extent of directing or controlling their public school systems. If there are any constitutional limitations upon the treaty-making power, if the States retain any autonomy whatsoever, they surely preserve a right to the exclusive control of the schools which they maintain out of their resources. What greater trespass upon the province of self-government, what more serious violation of fundamental rights can be imagined than federal interference with a State's management of its own schools? If our federal government should barter away such fundamental rights as these, and the courts hold such action constitutional, then the double structure of State and federal government which our fathers reared will crumble into ruins, and a new centralized edifice will take its place in which the States will be reduced to mere provinces or administrative units." § 21. Judge Shackelford Miller delivered recently a very able address before the Jefferson School of Law of the city of Louisville on the Treaty-making Power under the Constitution. It is undoubtedly one of the most thoroughly digested articles that has appeared on the subject. In the course of his address he uses the following language: "The text of a sound treatise on any subject of law is based upon and confined by the decisions of the courts upon that |