This seems to have been the fatal defect in the Articles of Confederation as to their treaty-making power. Practically all writers on this subject admit that there was ample power given to the Congress by the Confederation to make treaties, but that it did not possess sufficient power to enforce them. That power could be supplied as suggested by Mr. Hamilton, and so the Constitution of the United States remedied that defect, by providing that the judicial power of the United States should extend to all questions arising under treaties. The lack of the Federal Judiciary in the Articles of Confederation was one of the most serious impediments to their efficiency; and while undoubtedly the Constitution was the outcome of a universal recognition of the need of a more effective government, this lack of efficiency was in no wise due in all cases to the lack of ample powers granted to the Congress in the Articles of Confederation; and in respect to this special power that we are considering, the treaty-making power, we feel justified in asserting that the powers of the Congress under the Articles of Confederation to enact treaties were as strong and complete as under the Constitution of the United States.

But of what avail were those ample powers if there was no judicial power to enforce them, in case of disagreement with the States? And Mr. Jefferson himself declared that one of the objects of the calling of the Annapolis Convention was not only the regulation of commerce between the States, but the adoption of some provision by which treaties, which under the Articles of Confederation were disregarded by many of the States, might be enforced by a federal Judiciary.

CHAPTER IV

TREATY POWER UNDER THE CONSTITUTION: ITS SUPREMACY CONSIDERED IN RELATION TO OTHER SUPREME POWERS. RULES OF CONSTRUCTION

§ 64. The consideration of the treaty-making power under the Constitution of the United States requires the consideration of the following clauses of the Constitution, which seem to be the only ones in which this power is involved:

ARTICLE VI, Clause 2. "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

ARTICLE I, § 10, Clause 1. "No State shall enter into any treaty, alliance, or confederation."

ARTICLE I, 10, Clause 2. "No State shall, without the consent of Congress . . . enter into any agreement or compact with another State or with a foreign power.'

ARTICLE II, § 2, Clause 2. "He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.'

ARTICLE III, § 2, Clause 1. "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority."

Out of these provisions of the Constitution relating to the treaty-making power, together with others which may conflict

with them, will arise the real questions to be discussed in these pages.

§ 65. Article VI, Section 2, supra, taken by itself seems to contain a sweeping power with no restraint or limitation; and the error which has crept into the opinions of authors on this subject would seem to have come from the consideration of this clause by itself as if it were an independent, separate paper, without the important consideration that it was a part, and only a part of an instrument, which must be construed in its relation to all other sections of it in its entirety. This is an error which is often made but which has as often been exposed; nor need this view be dwelt upon because the judges of the Supreme Court from Marshall to White have insisted always that no proper construction of the Constitution can be had which does not take into consideration the unity of the whole instrument; that each of its provisions may enjoy its full powers, not by the destruction of any other, but by an interpretation which will harmonize the whole in the development of all at the expense of no one power. And, while there have been at times conflicts between State and Federal powers and difficulty in determining by which government certain powers should be exercised, the courts have not failed in determining such conflicts to recur to the cotemporaneous history of the formation of the Constitution, the record of which forms an illuminating page in the true interpretation of this in

strument.

§ 66. That the Constitution was a compromise in its final form cannot be denied; nor can it be claimed by the advocates of a centralized government any more than by the advocates of State Sovereignty, that their views were finally incorporated into the Constitution. Indeed, the true theory of our government is simple and adequate: that in all local matters, of which only the locality has need, the people of such locality should be supreme in determining them; while in matters of more farreaching effect, of national character, peculiar to no one State, but of common interest to all, the stronger hand of the Federal

Government should control in the interest of all; and that the State in providing local legislation for local interests must not, under the cover of that claim, invade the domain of Federal power, nor must the Federal Government, under pretense of National legislation, deprive the States of their right of supplying the local needs of the people. These simple principles need only to be expressed to command the approval of all. The practical application of them is a more serious problem, and in the careful demarcation of the line which defines the limits of State and Federal power, the real trouble has arisen.

In National affairs we are a unit; in local matters we represent forty-eight distinct and independent units, with laws, institutions, social customs, religious affinities, and aspirations as distinct as the billows. The strength of our government has been from the beginning in the recognition of these two principles - not antagonistic, but mutually helpful when rightfully maintained; and while there have been, undoubtedly, in our history, difficulties in adjusting the exact line dividing these powers, yet, it must be admitted that the Supreme Court, with evenhanded justice, has maintained the equilibrium without a jar to the great structure, and has faithfully repelled the aggressions by each upon the other.

§ 67. So, then, when any section of the Constitution is under consideration, the recognized rule of construction not only requires the examination of the section itself, in its verbiage, punctuation, and relation to other sections for the maxim, noscitur a sociis must often be invoked - but equally important and necessary to its proper interpretation is its relation to the whole instrument, in letter and spirit. The Biblical sentiment "No man liveth to himself" is no less true in its application to man in his relations to society, than is the consideration of any one section of the Constitution in its relation to all others. This same principle applies to the construction of wills, deeds, and contracts.

If, therefore, Article VI of the Constitution was presented for interpretation as an independent instrument, standing alone

and by itself, its construction would be quite different from that which must be invoked in its construction as one section of the whole Constitution, carrying in its varied sections immutable and inalienable rights which are imbedded in its provisions, as well as in the hearts of the people. These latter rights, which pertain to the American citizen- the ready defender of his country, and the potential factor in its advancement, should surely be regarded as no less sacred and no less important than those which relate to "the stranger within our gates."

A due regard for the rights of strangers is readily accepted in the true spirit of hospitality inbred in every American, but there must be limitations upon the highest concept of hospitality. The stranger who enjoys the private hospitality of an individual can hardly be justified in abusing the rules and traditions of the home into which he is invited. The violation of any rule of propriety laid down by the master of the house would hardly be excused as a breach of decorum, under the flimsy excuse that the stranger had been invited to the house. The invitation carries with it, by distinct implication, the agreement to conform to the rules of the household to do less would make him an intruder, rather than a guest and would justify the master in showing him the door. The Statue of Liberty at the great port of entry of our country, standing, with open arms, kindly beckoning the oppressed of every land to these shores, invites the foreigner to our home, established under our government, and controlled by our laws, and we ask him to come and accept these as we have developed them under our Christian civilization. And so when we come to consider Article VI, § 1, of the Constitution we must not forget the principles imbedded in the body of the Constitution as well as in the Amendments, of civil and religious liberty guaranteed to all citizens of America. In its consideration we must also keep in mind that the Tenth Amendment to the Constitution declares "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," and that this Amendment