into proves this truth unequivocally. No nation will, therefore, make any stipulations with Congress, conceding any advantages of importance to us; they will be the more averse to entering into engagements with us, as the imbecility of our government enables them to derive many advantages from our trade, without granting us any return. But were this country united by proper bands, in addition to other great advantages, we could form very beneficial treaties with foreign states. But this can never happen without a change in our system. Were we not laughed at by that minister of that nation, from which we may be able yet to extort some of the most salutary measures for this country? Were we not told that it was necessary to temporize till our government acquired consistency? Will any nation relinquish national advantages to us? You will be greatly disappointed, if you expect any such good effects from this contemptible system." 1

Subsequently, after the organization of the government, when Mr. Madison was a member of the House of Representatives and known as the "Father of the Constitution," and possessing the highest right of any man of his day to speak on this subject, he was drawn into the debate on the ratification of the Jay Treaty, which provided for an appropriation of money. Since Congress alone under the Constitution can appropriate money, the right of the House as one branch of Congress to consider the treaty was claimed. President Washington, in a paper of great power and dignity, refused to submit the treaty to the House, and the question before the House was whether they had a right to inspect the treaty whose validity depended upon their action; on this question the House asserted its prerogative by a vote of 63 to 36. Mr. Madison said he

"Would appeal to the Committee to decide, whether it did not appear, from a candid and collective view of the debates in those conventions, and particularly in that of Virginia, that the treaty-making power was a limited power; and that the powers in our Constitution, on this subject, bore an analogy to the powers on the same subject in the government of Great Britain... On a review of these proceedings, may not the question be fairly asked, whether it ought to be supposed 1 Elliott's Debates, Vol. III, pp. 135, 136.

that the several conventions - who showed so much jealousy with regard to the powers of commerce, of the purse, and of the sword, as to require for the exercise of them in some cases two-thirds, in others three-fourths, of both branches of the legislature could have understood that, by the treaty clauses in the Constitution, they had given to the President and Senate, without any control whatever from the House of Representatives, an absolute and unlimited power on all these great objects.” 1 William Loughbridge, a celebrated lawyer of Iowa, on June 30, 1868, on the floor of the House, said:

"An attempt is made, through the means of the treatymaking power, to concentrate almost all of the power of this Government in the hands of the President, subject only to the advice and consent of the Senate. And this proposition is, if adopted, a long step in that direction. I hesitate not to say, sir, that if, without any explanation, disaffirmance, or protest, we make this appropriation, we shall, so far as this House can do it, have surrendered practically all the power of the Government into the hands of the treaty-making department and reduced this House to the position of an involuntary agent of that power, with no discretion but to carry out its expressed will. That we are rapidly drifting in that direction, it seems to me, must be apparent to the most casual observer.

"By substituting a foreign Government or an Indian tribe in place of this House, on the principle claimed by the Executive, there is nothing within the whole scope of the legislative powers of the Government that can not be done without the consent or intervention of this House. I defy any gentleman to point out a single act of legislation that can not be done through and by the treaty-making power, if we admit that power to the extent claimed by the Executive." 2

Among the recent contributions to this subject, distinguished alike for legal acumen, thorough investigation, and scholarly presentation, none is more worthy of perusal than "Limitations. on the Treaty-making Power," etc., by Prof. William E. Mikell, of the University of Pennsylvania.3

"The Life and Times of James Madison," Rives, Vol. III, pp. 558, 559. Also found in Annals of Congress, Vol. V, p. 562.

* Congressional Globe, 40th Congress, 3621.

* University of Pennsylvania Law Review & American Law Register, for April and May, 1909, Vol. LVII, Nos. 7 and 8.

CHAPTER II

OPINIONS OF JUDGES, FEDERAL AND STATE, ON THE TREATYMAKING POWER, FROM DECIDED CASES

§ 40. In the last chapter we gave the views of many public men and statesmen from the early history of the country down. to the present day on the treaty-power under the Constitution of the United States, and in this chapter the opinions of many of the judges of the country, both Federal and State, are sought to be collected.

Professor Willoughby, in his work on the Constitution, says: 1

"JUDICIAL DICTA THAT RESERVED RIGHTS OF THE STATES MAY NOT BE INFRINGED.

"Upon this point the declarations of the Supreme Court are not completely satisfactory. In various of its opinions this tribunal has explicitly asserted that the rights reserved by the Constitution from the control of the other departments of the Federal Government may not be infringed by its treatymaking power."

§ 41. Mr. Justice Daniel, in the License Cases, speaking of Article VI of the Constitution where treaties are declared to be the supreme law of the land, says:

"This provision of the constitution, it is to be feared, is sometimes applied or expounded without those qualifications which the character of the parties to that instrument, and its adaptation to the purposes for which it was created, necessarily imply. Every power delegated to the federal government, must be expounded in coincidence with a perfect right in the 1 Vol. I, Section 213.

States to all that they have not delegated; in coincidence, too, with the possession of every power and right necessary for their existence and preservation; for it is impossible to believe that these ever were, in intention or in fact, ceded to the general government. Laws of the United States, in order to be binding, must be within the legitimate powers vested by the constitution. Treaties, to be valid, must be made within the scope of the same powers; for there can be no 'authority of the United States,' save what is derived mediately or immediately, and regularly and legitimately, from the constitution. A treaty, no more than an ordinary statute, can arbitrarily cede away any one right of a State or of any citizen of a State. In cases of alleged conflict between a law of the United States and the constitution, or between the law of a State and the constitution or a statute of the United States, this court must pronounce upon the validity of either law with reference to the constitution; but, whether the decision of the court in such cases be itself binding, or otherwise, must depend upon its conformity with, or its warrant from, the constitution. It cannot be correctly held, that a decision, merely because it be by the Supreme Court, is to override alike the constitution and the laws both of the States and of the United States." 1

§ 42. Chief Justice Taney, in the Passenger Cases,2 uses the following language:

"The first inquiry is, whether, under the Constitution of the United States, the federal government has the power to compel the several States to receive, and suffer to remain in association with its citizens, every person or class of persons whom it may be the policy or pleasure of the United States to admit. In my judgment, this question lies at the foundation of the controversy in this case. I do not mean to say that the general government have, by treaty or act of Congress, required the State of Massachusetts to permit the aliens in question to land. I think there is no treaty or act of Congress which can justly be so construed. But it is not necessary to examine that question until we have first inquired whether Congress can lawfully exercise such a power, and whether the States are bound to submit to it. For if the people of the several States of this Union reserved to themselves the power of expelling from their borders any person, or class of persons, 15 How. 613, 12 L. ed. 256. 27 How. 465, 12 L. ed. 702.

whom it might deem dangerous to its peace, or likely to produce a physical or moral evil among its citizens, then any treaty or law of Congress invading this right, and authorizing the introduction of any person or description of persons against the consent of the State, would be an usurpation of power which this court could neither recognize or enforce. I had supposed this question not now open to dispute."

§ 43. Justice Swayne, in United States v. Rhodes,1 uses this language:

"A treaty is declared by the Constitution to be the 'law of the land,"" but adds, "What is unwarranted or forbidden by the Constitution can no more be done in one way than in another. The authority of the national government is limited, though supreme in the sphere of its operation. As compared with the State governments, the subjects upon which it operates are few in number. Its objects are all national. It is one wholly of delegated powers. The States possess all which they have not surrendered; the government of the Union only such as the Constitution has given to it, expressly or incidentally, and by reasonable intendment. Whenever an act of that government is challenged a grant of power must be shown, or the act is void."

Justice Swayne also in the Cherokee Tobacco case 2 uses this language:

"It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government.'

§ 44. Mr. Justice Clifford uses this language in Holden v. Joy, in speaking of the treaty-power:

3

"That the framers of the Constitution intended that it should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our government and the relation between the States and the United States."

1 U. S. Cir. Ct. 1866, 1 Abb. U. S. Rep. 43, 44. Fed. Cases 16151. 211 Wallace 616, 20 L. ed. 227. 317 Wallace 243, 21 L. ed. 523.