and post-roads, gives to Congress only the power to legislate on those subjects or those which naturally flow from it, but the word treaty, which may embrace any subject, in its very nature, has no such limitation. It is as broad and conclusive as national ambition or human activities could make it. Every personal right, every property right, every civil right, every political right, every social right, every religious right known to the American citizen may be included in its ample folds. All of these, as applied to the citizens of the United States and the States, had been adjusted by the Constitution before Article VI was reached and the question which is to be answered in America to-day is whether the framers of the Constitution, after spending weeks and months in erecting a structure which was to protect these rights, and after their work had been practically accomplished, intended by the insertion of this Article, to destroy the structure they had so successfully builded.

§ 85. If we are to accept, therefore, the literal meaning of the words in Article VI, as applied to treaties, and give to them the supremacy which it is claimed the letter of the Constitution accords them, what is the result? In the first place, every power delegated to the Congress of the United States for its execution may be surrendered to the treaty power. The purpose which the framers of the Constitution had that the imposition of taxes, the regulation of commerce, the establishment of post-offices and post-roads, the coining of money, the naturalization of foreigners, and the like, should be accomplished only through the action of representatives elected by the people of the States, and the Senators representing the States, is abandoned and the powers are surrendered to the President and the Senate in the making of treaties with foreign countries; in the second place, after providing, as was their intention, for a republican form of Government, it must be presumed they deliberately inserted Article VI to change that form to the government of an oligarchy; and, thirdly, that after they had determined in their wisdom to concede to Congress powers of legislation in certain particulars, and that all else was to be left with the States

or the people, who were supposed to know better than anyone else what was best for them in their respective localities, they deliberately reversed their action and inserted this article, which might exclude their representatives in Congress from a voice in any legislation, and give to the President and the Senate the power to uproot and destroy what had already been conceded to Congress and the States. And all this results, it is claimed, because the word "Treaty" may embrace any subject that pertains to the people as citizens of the State or Nation.

§ 86. St. George Tucker, Story, Rawle, Willoughby, Pomeroy, and Cooley, and every reputable writer upon the Constitution, declare that the treaty-power can do nothing which tends to destroy the Constitution itself. Can it be doubted that the power to take away the right of Congress to legislate, or the right of the people of the States to regulate their own local affairs is the power to destroy the basic principles of the Constitution of our country?

§ 87. The claim asserted for the treaty-making power that it may embrace all rights and all subjects because the word "Treaty" may embrace such, cannot be maintained for another reason. The principle must be accepted as established, that where in any instrument a general grant is made, which is followed in the same instrument by a specific grant, that the "general" is limited by the "specific" grant. This is undoubtedly true of wills and deeds. A testator who devises all of his real estate to his wife and in a subsequent portion of his will devises his home place to his son, is considered to have limited the devise of all of his real estate to his wife by the specific devise of the home place to his son. The same principle will apply to a deed of real estate.

This principle applies peculiarly to the case of the treaty power. Article II, § 2, grants to the President and Senate the power, without any limitation, to make treaties; since treaties may embrace all rights of person and property, some of which may be included in the powers granted in the same Constitution, to the President, to the Congress, the Judiciary, and some

also, which by the same instrument, are reserved to the States, this would seem to be a sweeping and unlimited general grant to the treaty-making power; but when we find the same instrument, which has made this unqualified general grant to the treaty power, has granted to the President, to the Congress, to the Judiciary, certain specific powers, and reserved to the States certain specific powers and rights, the general grant to the treaty-making power is limited by the specific grants mentioned. This is the well-established rule of construction, and to hold otherwise would be to hold that the Convention, after carefully constructing a constitutional government, granted to one of the branches of the government the power to destroy it all.

CHAPTER V

ANALYSIS OF THE VIEWS OF CHARLES HENRY BUTLER AS DISCLOSED IN HIS BOOK, "THE TREATY-MAKING POWER UNDER THE CONSTITUTION OF THE UNITED STATES" UNDER NINE HEADINGS CONSIDERED SERIATIM

§ 88. The opinions expressed in chapters one and two by the many distinguished statesmen who considered the treatymaking power, either as participants in the framing of the Constitution itself or when called upon to carry out its provisions in the Congress of the United States, or to construe it as judges upon the highest courts of the land, are in some instances brought into sharp conflict with the opinions of a recent distinguished author, Mr. Charles Henry Butler, who, in the third paragraph of his work on the treaty-making power,1 lays down the following propositions as containing his views of the extent of this power:

"The author fully appreciates that any attempt to extend Federal jurisdiction to matters which are not clearly expressed in the Constitution carries with it the onus probandi to its fullest extent. He is, however, so firmly convinced that the Government of the United States is completely endowed with all the essential attributes of nationality and sovereignty in regard to National affairs that he feels fully justified in expressing the following opinion: First: That the treaty-making power of the United States, as vested in the Central Government, is derived not only from the powers expressly conferred by the Constitution, but that it is also possessed by that Government as an attribute of sovereignty, and that it extends to 1 Butler, "Treaty-making Power under the Constitution," Vol. I, p. 4.

Author's italics.

every subject which can be the basis of negotiation and contract between any of the sovereign powers of the world, or in regard to which the several States of the Union themselves could have negotiated and contracted if the Constitution had not expressly prohibited the States from exercising the treatymaking power in any manner whatever and vested that power exclusively in, and expressly delegated it to, the Federal Gov

ernment.

"Second: That this power exists in, and can be exercised by, the National Government, whenever foreign relations of any kind are established with any other sovereign power, in regulating by treaty the use of property belonging to States or the citizens thereof, such as canals, railroads, fisheries, public lands, mining claims, etc.; in regulating the descent or possession of property within the otherwise exclusive jurisdiction of States; in surrendering citizens and inhabitants of States to foreign powers for punishment of crimes committed outside of the jurisdiction of the United States or of any State or territory thereof; in fact, 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, and that in no case is the sanction, aid or consent of any State necessary to validate the treaty or to enforce its provisions.

"Third: That the power to legislate in regard to all matters affected by treaty stipulations and relations is co-extensive with the treaty-making power, and that acts of Congress enforcing such stipulations which, in the absence of treaty stipulations, would be unconstitutional as infringing upon the powers reserved to the States, are constitutional, and can be enforced, even though they may conflict with State laws or provisions of State constitutions.

"Fourth That all provisions in State statutes or constitutions which in any way conflict with any treaty stipulations, whether they have been made prior or subsequent thereto, must give way to the provisions of the treaty, or act of Congress based on and enforcing the same, even if such provisions relate to matters wholly within State jurisdiction." 1

§ 89. An analysis of the above views of the author shows the following claims: I. That excluding the granted power to make

1 Author's italics.