arguable that the deprivation of such vested rights by a treaty otherwise valid would be a deprivation by due process of law.

It is also open to serious question whether or not the federal government has the power to alienate by treaty territory belonging to one of the states without its consent. Although such an extreme power was denied by Daniel Webster, as secretary of state, yet Chief Justice Marshall and Mr. Justice Story maintained its existence in certain contingencies, and Chancellor Kent squarely affirmed it, declaring in no uncertain terms that "there can be no doubt that the power competent to bind the nation by treaty may alienate the public domain and property by treaty, . . . whether that territory be already in the occupation of the enemy, or remains in the possession of the nation, and whether the property be public or private." 25

The argument has been pressed that if the treaty-making power is subject to constitutional restrictions, if it is restricted as declared in Geofroy v. Riggs, supra, "by those restraints which are found in that instrument [i. e. the Constitution] against the action of the government or of its departments," then among these fundamental limitations is the restriction that the President and the Senate cannot by treaty effect what if done by an act of Congress would be clearly an invasion of the powers reserved to the states and a violation of the Tenth Amendment. If federal legislation and treaties are by the Constitution placed upon an equal footing, then, it is said, the President and the Senate cannot accomplish by treaty what would be unconstitutional if enacted by Congress as federal legislation.26 This argument is so plausible that it has won many adherents; yet that it is indefensible is shown by a varied line of cases whose authority has become so well established that they are not now open to question.

No right could be more exclusively the subject of state control than the ownership of land within the state.27 Congressional legislation undertaking to regulate such a matter would be clearly unconstitutional. A Maryland statute, passed under this unquestioned power of the state, provided that land inherited by French subjects should, after the expiration of ten years from the date of acquisition, pass to the state of Maryland unless the French owner should settle within the state of Maryland or become a citizen thereof. Yet when the United States made a treaty with France in 1800 enabling the people of each country to hold inherited lands in the other country without naturalization or other requirement, even though this conflicted with the existing Maryland statute, the treaty was held valid and binding in the case of Chirac v. Chirac,28 and the state legislation therefore void.29 Similarly, the regulation of inheri

199, 245 (1795). Cf. French Spoliation Claims. Cf. also, The Schooner Peggy, I Cranch (U. S.), 103 (1801).

25 KENT, COMMENTARIES, *166. For the views of Chief Justice Marshall and Justice Story, see 9 MOORE'S DIGEST OF INTERNATIONAL LAW, 173. See also 2 BUTLER, TREATY-MAKING POWER, 387-394.

26 Thomas Jefferson is said to have once maintained this view. See 2 BUTLER, TREATYMAKING POWER, § 467.

27 United States v. Fox, 94 U. S. 315 (1876).

28

2 Wheat. (U. S.) 259 (1817).

29 See, to the same effect, Fairfax v. Hunter, 7 Cranch (U. S.), 603 (1812); Craig v.

tance of realty within a state clearly falls among the powers reserved to the several states in the Tenth Amendment,30 yet the Supreme Court has not hesitated to declare in the case of Hauenstein v. Lynharn 31 that the federal government may by treaty regulate the right to inherit state lands, even though the effect is to abrogate an otherwise valid state statute. Likewise in Hopkirk v. Bell,32 which involved a state statute of limitations, a subject clearly within the exclusive jurisdiction of the states, it was held that the state statute must give way to the conflicting provisions of a national treaty. The right of a state to determine who shall be allowed within its borders to act as executor or administrator is again a power retained exclusively by the states; yet the courts have uniformly held that the federal government may in the exercise of the treaty-making power abrogate or alter such state regulations.33

The foregoing decisions to the effect that powers ordinarily understood as being reserved to the states may be invaded by the federal government under the treaty-making power are clearly correct. Such "reserved powers" or "states' rights" have been again and again invaded by the federal government acting under other plenary powers. Under the interstate commerce power, the taxing power, the power to declare war and to raise and support armies, the large general powers unquestionably reserved to the states have been invaded by Congress through the enactment of such far-reaching and important legislation as the White Slavery Act,34 the Pure Food and Drugs Act,35 the Webb Kenyon Act,36 the Narcotic Drugs Act,37 the Oleomargarine Act,38 the Espionage Law,39 and countless others. If our courts have established the well-settled principle that the federal government in the exercise of its expressly delegated plenary powers may invade the general reserved powers of the states, it would be strange indeed if the treatymaking power, granted by the Constitution to the federal government in such large and unrestricted terms, formed the single exception.

The truth is that the states clearly do not reserve to themselves all pow

Radford, 3 Wheat. (U. S.) 594 (1818); Hughes v. Edwards, 9 Wheat. (U. S.) 489, 496 (1824); Droit d'Aubaine, 8 Opin. Att'y-Gen'l, 411.

30 Clarke v. Clarke, 178 U. S. 186, 190 (1900).

31 100 U. S. 483 (1879).

32 3 Cranch (U. S.), 453; 4 Cranch (U. S.), 164.

33 In re Fattosinis' Estate, 33 Misc. 18, 67 N. Y. Supp. 1119 (1900); In re Lobrasciano's Estate, 38 Misc. 415, 77 N. Y. Supp. 1040 (1902); In re Wyman, 191 Mass. 276, 77 N. E. 379 (1906); Carpigiani v. Hall, 172 Ala. 287, 55 So. 248 (1911); In re Scutella's Estate, 145 App. Div. 156, 129 N. Y. Supp. 20 (1911).

34 Act of June 25, 1910, c. 395, 36 STAT. AT L. 825 (COMP. STAT., §§ 8812-8819). Upheld in Hoke v. United States, 227 U. S. 308, 43 L. R. A. (N. S.) 906 (1913).

35 Act of June 30, 1906, c. 3915, 34 STAT. AT L. 768 (COMP. STAT., §§ 8717-8728). Upheld in Seven Cases v. United States, 239 U. S. 510, L. R. A. 1916 D, 164 (1916). Weeks v. United States, 245 U. S. 618 (1918).

36 Act of March 1, 1913, c. 90, 37 STAT. AT L. 699 (Comp. Stat., § 8739). Upheld in Clarke Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311, L. R. A. 1917 B 1218 (1917).

37 Act of December 17, 1914, c. 1, 38 STAT. AT L. 785 (COMP. STAT., § 6287 g). Upheld in United States v. Doremus, 249 U. S. 86 (1919).

38 Act of August 2, 1886, c. 840, 24 STAT. AT L. 209, amended by Act of May 9, 1902, c. 784, 32 STAT. AT L. 193. Upheld in McCray v. United States, 195 U. S. 27 (1904). 39 Act of June 15, 1917, c. 30. 40 STAT. AT L. 217, amended by Act of May 16, 1918, c. 75, 40 STAT. AT L. 553. Upheld in Schenck v. United States, 249 U. S. 47 (1919).

ers except those expressly delegated to the federal government. Those powers which may be implied from the express delegations of federal power are likewise surrendered by the states; 40 and a large amount of power must be implied from the express treaty-making power. Thus it is that even in the case of purely domestic affairs which ordinarily fall within the unquestioned regulatory power of the states, if these once become matters of international concern, they are no longer reserved to the states. The mere fact that they have become of sufficient international concern to other nations to cause the making of a treaty is enough to show that under the Constitution they no longer remain within the sphere of state reserved powers, but fall within the power of the federal government, to regulate by treaty, or by legislation passed in order to carry out such treaty.

Were it true that the United States could not enter into treaties affecting matters understood to be generally reserved to the states, since the states have by the Constitution surrendered to the United States the entire treaty-making power, the result would be an intolerable restriction upon the power of a sovereign nation. There would be an entire absence of power to make treaties often vitally necessary; such a crippling of the sovereignty of the national government could never be presumed to have been intended by the framers of the Constitution. "To subject the treaty power to all the limitations of Congress in enacting the laws for the regulations of internal affairs would in effect prevent the exercise of many of the most important governmental functions of the nation, in its intercourse and relations with foreign nations, and for the protection of our citizens in foreign countries." 41

Whether considered in the light of past decisions, or in the light of building up a practical and serviceable framework of government, therefore, there would seem to be no room to doubt the correctness of the three latest decisions 42 upon the scope of the treaty-making power in the United States.

STATE REFERENDUM AND FEDERAL AMENDMENTS. The Eighteenth Amendment1-prohibition's signal victory - has come before the highest courts of several states, and is likely to reach those of others.3

40 McCulloch v. Maryland, 4 Wheat. (U. S.) 316 (1819). 41 United States v. Thompson, 258 Fed. 257, 263 (1919).

42 Cases cited in note 1, supra. All alike uphold the power of the United States to provide by treaty for the protection of migratory birds.

1 “Article —, Sec. 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

"Sec. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

"Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress." 40 STAT. AT L. 1941.

2 Herbring v. Brown, Att'y-Gen'l, 180 Pac. (Ore.) 328 (1919); State v. Howell, 181 Pac. (Wash.) 920 (1919); Hawke v. Smith, ooo N. E. (Ohio) 000 (1919); In re Opinion of Justices, 107 Atl. (Me.) 673 (1919).

3 See Theodore A. Bell, "The Referendum Against National Prohibition," at page 5.

The contention is that in a state which has the initiative and referendum, so called, any amendment to the Federal Constitution must be referred to the people as part of the legislative body. The answers of the courts are not harmonious. But their divergence cannot be rested, as has been attempted, upon the wording of the referendum provisions. In this matter any judicial declaration must involve primarily the interpretation of the amending article of the Federal Constitution."

6

Congress is therein given, in the last stage of the evolution of an amendment, the choice of two alternative methods of ratification: (1) "by the Legislatures of three fourths of the several States, or" (2) "by Conventions in three fourths thereof." In this instance Congress adopted the former method. So, in order to determine just who, in a particular state, shall take part in the ratification or rejection of an amendment, the courts proceed to exercise their judicial function of construction by seeking to determine what the framers meant when they used the word "Legislatures" in Article V of the Constitution.

Conceivably, either of two things may have been intended by "Legislatures": (1) the periodical representative assembly in each state, or (2) the law-making power in each state.

To adopt the first interpretation will mean that the people in a state having a referendum cannot here make use of that new mode of expressing their will. But such an apparently startling result is not in conflict with the history of the adoption of the Constitution. In that instrument the people of each of the thirteen sovereign states shifted their legal sovereignty to the people of the United States, or more exactly to "the States' governments as forming one aggregate body represented by three-fourths of the several States at any time belonging to the Union." 10 Article V itself accomplishes this shift of sovereign power, for by its provisions the Constitution may be amended in spite of the unanimous vote of the people of any one state, and an amendment proposed by

This question has received very little attention from text writers. But cf. "The people have no direct power either to propose an amendment to the Constitution, or to ratify it after it is proposed and submitted." 2 WATSON, CONST., 1310.

The Ohio court (6 to 1) refused to enjoin the Secretary of State from putting the proposed amendment on the November ballot. Hawke v. Smith, supra. The Washington court (5 to 4) affirmed the issuance of a writ of mandamus to compel the Secretary of State to submit the amendment to a vote of the people. State v. Howell, supra. The Oregon court, on the other hand, refused such a mandamus. Herbring v. Brown, supra. The Maine justices advised Governor Milliken that the amendment need not be referred to the people under Maine's referendum provisions. In re Opinion of Justices, supra.

Herbring v. Brown, supra. See State v. Howell, supra, at p. 927.

7 U. S. CONST., Art. V.

8 40 STAT. AT L. 1050.

9

By referring this business to the Legislatures, expense would be saved, and in general it may be presumed that they would speak the general sense of the people. It may, however, on some occasions be better to consult an immediate delegation for that purpose. This is therefore left discretionary." Iredell in North Carolina Convention which ratified the Federal Constitution, 4 ELLIOT, DEBATES, 2 ed., 182, 183. The Constitution went into operation on the day fixed by Congress, March 4, 1789, although it had then been ratified by only eleven states and the Articles of Confedera tion had required unanimity of approval for all alterations. ARTS, OF CONF., Art. XIII.

See 1 STORY, CONST., 5 ed., §§ 278, 279.

10 DICEY, LAW OF THE CONSTITUTION, 8 ed., 144, 145.

unanimous vote of the people in one state cannot become "the supreme Law"" of that state unless it be approved by sufficient sister states to total three fourths of the then existing states.

" 15

12

But the second conceivable meaning of the word "Legislatures" in Article V does find support in the interpretation given the same word elsewhere in the Constitution. "Legislature," or its plural, appears thirteen times in ten connections in the Constitution, each time referring to state legislatures. And on analysis it is clear that neither one of the two conceivable senses was adopted exclusively.13 For the people as part of the law-making body do not take a "Recess," 14 and yet they may very properly be construed to have a voice in prescribing "The Times, Places and Manners of holding Elections for Senators and Representatives." Therefore, cannot the word as used in Article V be fairly said to mean law-making bodies? For to adopt this second interpretation will mean that the people of a state having a referendum can here make use of that new mode of expressing their will. But however desirable this result may seem to some, the treatment which Article V has received in the past would indicate that this has not been the interpretation. The ratification or rejection of amendments has not been regarded as an exercise of the law-making function. Thus, joint resolutions of ratification by state legislative assemblies are often not signed by the state executives, 16 though state constitutions ordinarily provide that they shall sign all laws either by way of approval or veto.17 Attempts by a state to revoke a ratification once made have been ignored by the federal government,18 which surely would recognize a change in a state's laws made by the proper state body. If ratification is not a law-making function, then it is not for the law-making body as such.19

11 U. S. CONST., Art. VI, § 2.

12 U. S. CONST. Art. I, Sec. 2, § 1, Sec. 3, § 1, Sec. 4, § 1, Sec. 8, § 17; Art. II, Sec. 1, §2; Art. IV, Sec. 3, § 1, Sec. 4 (twice); Art. V (twice); Art. VI, § 3. In addition the word "legislature," or its plural, appears in the following amendments: XIV, § 2; XVII, § 1; § 2 (twice).

13 See 24 HARV. L. REV. 220.

14 U. S. CONST., Art. I, Sec. 3, § 2.

15 U. S. CONST., Art. I, Sec. 4, § 1; State ex rel. Schrader v. Polley, 26 S. D. 5, 127 N. W. 848 (1910); State ex rel. Davis v. Hildebrant, 94 Ohio St. 154, 114 N. E. 55 (1916). No one will quarrel with the decision of the United States Supreme Court that by giving effect to such an interpretation of Art. I, Sec. 4, Ohio does not cease to have a republican form of government. Davis v. Hildebrant, 241 U. S. 565, 36 Sup. Ct. 708, 60 L. Ed. 1172 (1916). See 30 HARV. L. REV. 184.

was

16 "This resolution, ratifying the proposed constitutional amendment not signed by the Governor, nor would it have been vetoed by him." In re Opinion of Justices, supra, at p. 676. Nor need the Governor sign the resolution submitting a proposed amendment to a state constitution to the people. State ex rel. Morris v. Mason, 43 La. Ann. 590, 9 So. 776 (1891); Com'lth ex rel. Att'y-Gen'l v. Griest, 196 Pa. St. 396, 46 Atl. 505 (1900).

Similarly, the President need not sign the resolution of Congress sending a proposed federal amendment to the states. Hollingsworth v. Virginia, 3 Dall. (U. S.) 378, 1 L. Ed. 644 (1798). See I WILLOUGHBY, CONST., 520 521; 2 WATSON, CONST., 1318 f. 17 See People v. Bowen, 21 N. Y. 517, 519 (1860).

18 See JAMESON, CONST. CONV., 4 ed., §§ 582, 583.

19 Nor would it seem that express provision in the Referendum law, such as that in Ohio (November, 1918, CONST. Aм., Art. II, §§ 1, 1 a), that the people shall vote on proposed federal amendments could make it such in matters involving the Federal Constitution by Article V.