3. QUESTION OF CONSTITUTIONAL LIMITATIONS. § 736. That a treaty is no more the supreme law of the land than is an act of Congress is shown by the fact that an act of Congress vacates pro tanto a prior inconsistent treaty. Whenever, therefore, an act of Congress would be unconstitutional, as invading the reserved rights of the States, a treaty to the same effect would be unconstitutional. Prevost v. Greneaux, 19 How. 7. "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 and of that of the States. It woud 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 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. Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 100 U. S. 483; 8 Opinions Attys. Gen. 417; The People v. Gerke, 5 California, 381." Geofroy . Riggs (1890), 133 U. S. 258, 267. "It [the treaty-making power] is limited by all the provisions of the Constitution which inhibit certain acts from being done by the government, or any of its departments; of which description there are many. It is also limited by such provisions of the Constitution as direct certain acts to be done in a particular way, and which prohibit the contrary, of which a striking example is to be found in that which declares that no money shall be drawn from the Treasury but in consequence of appropriations to be made by law.' This not only imposes an important restriction on the power, but gives to Congress as the law-making power, and to the House of Representatives as a portion of Congress, the right to withhold appropriations; and, thereby, an important control over the treaty-making power, whenever money is required to carry a treaty into effect; which is usually the case, especially in reference to those of much importance. There still remains another, and more important limitation, but of a more general and indefinite character. It can enter into no stipu lation calculated to change the character of the government; or to do that which can only be done by the constitution-making power; or which is inconsistent with the nature and structure of the government." Calhoun's Discourse on the Constitution and Government of the United "The Constitution is to prevail over a treaty where the provisions of the one come in conflict with the other. It would be difficult to find a reputable lawyer in this country who would not yield a ready assent to this proposition. Mr. Dillon's counsel admitted it in his argument for the consul's privilege before the court in California. The sixth amendment to the United States Constitution gives, in general and comprehensive language, the right to a defendant in criminal prosecutions to have compulsory process to procure the attendance of witnesses in his favor. Neither Congress nor the treaty-making power are competent to put any restriction on this constitutional provision. There was, however, at the time of its adoption, some limit to the range of its operation. It did not give to such a defendant the right to have compulsory process against all persons whatever, but only against such as were subject to subpœna process at that time, such as might by existing law be witnesses. There were then persons and classes of persons who were not thus subject to that process, who, by privileges and mental disqualifications, could not be made witnesses, and this constitutional provision did not confer the right on the defendant to have compulsory process against them. As the law of evidence stood when the Constitution went into effect, ambassadors and ministers could not be served with compulsory process to appear as witnesses, and the clause in the Constitution referred to did not give to the defendant in criminal prosecutions the right to compel their attendance in court. But what was the case in this respect as to consuls? They had not the diplomatic privileges of ambassadors and ministers. After the adoption of the Constitution the defendant in a criminal prosecution had the right to compulsory process to bring into court as a witness in his behalf any foreign consul whatsoever. If he then had it, and has it not now, when and how has this constitutional right been taken from him? Congress could not take it away, neither could the treaty-making power, for it is not within the competence of either to modify or restrict the operation of any provision of the Constitution of the United States." Mr. Marcy, Sec. of State, to Mr. Mason, min. to France, Sept. 11, 1854, "It is not, as you will perceive by examining Mr. Drouyn de L'Huys's broad and general proposition that the Constitution is paramount in authority to any treaty or convention made by this government. This principle, the President directs me to say, he can not disavow, nor would it be candid in him to withhold an expression of his belief that if a case should arise presenting a direct conflict between the Constitution of the United States and a treaty made by authority thereof, and be brought before our highest tribunal for adjudication, the court would act upon the principle that the Constitution was the paramount law." (Mr. Marcy, Sec. of State, to Mr. Mason, Jan. 18, 1855, MS. Inst. France, XV. 249.) Mr. Marcy here referred to the case of the French consul at San Francisco, M. Dillon, who, on failing to respond to a subpoena duces tecum, was brought into court on an attachment to testify in behalf of Señor Del Valle, Mexican consul at San Francisco, who had been indicted in the United States district court for the northern district of California on a charge of having violated the neutrality act of 1818. When brought into court, M. Dillon presented, through counsel, a protest, based on Articles II. and III. of the consular convention between the United States and France of 1853. Argument was heard, and Judge Ogden Hoffman, before whom the trial was pending, decided that the consul was exempt from compulsory process. Judge Hoffman based this decision on the ground that the constitutional provision was designed, not to subject every individual to process, but to secure to the accused equal rights with the prosecution in obtaining testimony. (See supra, § 714, where a fuller account is given.) With regard to Mr. Marcy's argument or admission that ambassadors and ministers were exempt because the law so stood when the Constitution went into effect, it is proper to point out that consuls, though not possessing the same general immunity, then frequently enjoyed specific immunities of a similar nature, as they still do, by virtue of treaty stipulations; and, as compulsory process was used to compel M. Dillon to answer a subpoena duces tecum, involving, as he alleged, the invasion of the archives of his office, it is by no means certain that there was not embraced in the controversy a privilege secured by international law. The existence of such a question would not, however, have invalidated, though it might have rendered less fully applicable to the case then pending, the principle, which Mr. Marcy asserted, that a constitutional provision must prevail over a treaty stipulation, should a conflict be found to exist between them. See also, Mr. Marcy, Sec. of State, to Mr. de Figanière, Portuguese chargé d'affaires, March 27, 1855, saying that, although the language of Article II. of the consular convention between the United States and France of February 23, 1853, exempting consuls from compulsory process, is general and unrestricted in terms, "yet it is here held that it does not take away the right which the defendant in a criminal prosecution has to resort to such process to procure the witnesses in his favor, for this right is secured to him by the express language of the United States Constitution." That instrument is paramount in authority to the laws of Congress or of any of the States, and to all treaty stipulations. (MS. Notes to Portugal, VI. "In reply, the undersigned hastens to inform Mr. Aspurúa that it is believed not to be competent to the treaty-making power of the United States to enter into such an engagement as that contained in the twenty-fifth article of the convention concluded at Caracas on the 20th day of September by the plenipotentiaries of Venezuela and the United States, viz: "Whenever one of the contracting parties shall be engaged in war with another state, no citizen of the other contracting party shall accept a commission or letter of marque for the purpose of assisting or co-operating hostilely with the said enemy against the said party so at war, under the pain of being considered as a pirate.' "The Constitution of the United States provides that Congress shall 'define and punish piracies and felonies committed on the high seas. Although several conventions have been made by this government with foreign governments, some of which still continue in force, containing, in substance, the stipulation just quoted, they were evidently contracted by an oversight of one of the provisions of the Constitution the supreme law of this country. The President, entertaining this opinion, can not consent to transmit the convention negotiated by Mr. Eames, which in all other respects meets with his approval, to the Senate for ratification without presenting to that body his objections to the article aforementioned." Mr. Marcy, Sec. of State, to Mr. Aspurúa, Nov. 15, 1854, MS. Notes to A treaty, no less than the statute law, "must be made in conformity with the Constitution, and where a provision in either a treaty or a law is found to contravene the principles of the Constitution, such provision must give way to the superior force of the Constitution, which is the organic law of the Republic, binding alike on the government and the nation." Mr. Blaine, Sec. of State, to Mr. Chen Lan Pin, March 25, 1881, For. Rel. 1881, 335, 337. November 23, 1864, Mr. Adams, United States minister at London, acting under instructions, gave the stipulated six months' notice of a wish to terminate the arrangement of April 28-29, 1817, in relation to armaments on the Great Lakes. The arrangement in question was originally effected by an exchange of notes. It was afterwards approved by the Senate, but no exchange of ratifications ever took place. The notice given by Mr. Adams was "adopted and ratified " by a joint resolution of Congress approved February 9, 1865. The arrangement was thus to end on May 23, 1865. March 8, 1865, however, Mr. Seward, in view of the changed situation along the Lakes, stated that the United States was willing that the convention "should remain practically in force;" and on June 15, 1865, he informed the British minister at Washington that this "was intended as a withdrawal of the previous notice within the time allowed, and that it is so held by this government." As between the United States and Great Britain this act of withdrawal was "no less authoritative than the notification itself." Into the authority of the Secretary of State either to give or to withdraw the notice, the British government was "incompetent to inquire;" it "could only accept and respect the withdrawal as a fact." The question of competency, "being a matter of domestic administration, affecting the internal relations. of the executive and legislative powers," in no wise concerned Great Britain. The raising by her of a question as to "the authority of the executive power" in the matter, would have constituted "an unprecedented and inadmissible step in the international relations of governments." As a question of "domestic administration and powers," the action of Mr. Seward "opens the door to nice argument in theory touching the constitutional aspects of the transaction," but as a matter of "practical effect" the subject may be deemed "more interesting than material." As an international understanding limiting the naval force to be maintained by either party on the lakes, the arrangement of 1817, even if lacking express legislative sanction, violated no existing legislation. "As between the two countries the arrangement is, therefore, to be regarded as still in existence, and only terminable in good faith by six months' notice of abrogation on either side." Report of Mr. Foster, Sec. of State, to the President, Dec. 7, 1892, H. "That a treaty can not invade the constitutional prerogatives of the legislature is thus illustrated by a German author, who has given to the subject a degree of elaborate and extended exposition which it has received from no writer in our own tongue. Congress has under the Constitution the right to lay taxes and imposts, as well as to regulate foreign trade, but the President and Senate, if the "treatymaking power" be regarded as absolute, would be able to evade this limitation by adopting treaties which would compel Congress to destroy its whole tariff system. According to the Constitution, Congress has the right to determine questions of naturalization, of patents, and of copyright. Yet, according to the view here contested, the President and Senate, by a treaty, could on these important questions utterly destroy the legislative capacity of the House of Representatives. The Constitution gives Congress the control of the Army. Participation in this control would be snatched from the House of Representatives by a treaty with a foreign power by which |