the United States would bind itself to keep in the field an army of a particular size. The Constitution gives Congress the right of declaring war; this right would be illusory if the President and Senate could by a treaty launch the country into a foreign war. The power of borrowing money on the credit of the United States resides in Congress; this power would cease to exist if the President and Senate could by treaty bind the country to the borrowing of foreign funds. By the Constitution "no money shall be drawn from the Treasury, but in consequence of appropriations made by law;" but this limitation would cease to exist if by a treaty the United States could be bound to pay money to a foreign power. . Congress would cease to be the law-making power as is prescribed by the Constitution; the law-making power would be the President and the Senate. Such a condition would become the more dangerous from the fact that treaties so adopted, being on this particular hypothesis superior to legislation, would continue in force until superseded by other treaties. Not only, therefore, would a Congress consisting of two houses be made to give way to an oligarchy of President and Senate, but the decrees of this oligarchy, when once made, could only be changed by concurrence of President and of Senatorial majority of two-thirds.'" Wharton, Int. Law Digest, § 131a, I. 26, citing Über den Abschluss von 4. CESSIONS OF TERRITORY. § 737. The question has on several occasions been discussed, whether the treaty-making power of the United States extends to the cession of territory belonging to a State of the Union without the State's consent. In the convention by which the Constitution of the United States was framed Colonel Mason, in seconding a proposed article for limiting the right of originating bills for the raising of revenue to the House of Representatives, said that he did so because "he was extremely earnest to take this power from the Senate, who, he said, could already sell the whole country by means of treaties. "He [Mr. Mercer] contended (alluding to Mr. Mason's observations) that the Senate ought not to have the power of treaties. This power belonged to the Executive department; adding, that treaties would not be final, so as to alter the laws of the land, till ratified by legislative authority. This was the case of treaties in Great Britain; particularly the late treaty of commerce with France. “Colonel Mason did not say that a treaty would repeal a law; but that the Senate, by means of treaties, might alienate territory, &c., without legislative sanction. The cessions of the British Islands in the West Indies, by treaty alone, were an example. If Spain should possess herself of Georgia, therefore, the Senate might by treaty dismember the Union." Nothing in contradiction of this statement is reported to have been said. Madison Papers, III. 1330-1332, quoted in 1 Butler's Treaty-Making In the draft of the instructions of March 18, 1792, to Messrs. Carmichael and Short, who were appointed to negotiate with Spain concerning commerce, navigation, and boundaries, Jefferson, who was then Secretary of State, expressed the opinion that the right to alienate even an inch of the territory of any State did not belong to the central government. In another part of the instructions, however, he admitted that, as the result of a disastrous war, the abandonment of territory might be necessary. Hamilton denied the validity of the limitation which Jefferson sought to place on the treaty-making power, especially as to uninhabited territory. The instructions, however, remained unchanged. Crandall, Treaties, their Making and Enforcement, 111-112, citing Am. See extract from Jefferson's Ana, March 11, 1792, 2 Randall's Jefferson, During the existence of the northeastern boundary dispute, the government of the United States at one time entered into a negotiation with the State of Maine with a view to obtain entire liberty of action in regard to a settlement. It was proposed that the legislature of Maine should provisionally surrender to the United States all territory claimed by the State north of the St. John and east of the River St. Francis, Maine to be indemnified by adjoining territory for the ultimate loss of any part of the territory thus surrendered, and, so far as the adjoining territory should prove inadequate, by Michigan lands, at the rate of a million acres of such lands for the whole of the territory surrendered, the lands thus appropriated to be sold by the United States and the proceeds paid into the treasury of Maine. An agreement or "treaty" to this effect was actually signed in 1832 by Edward Livingston, Secretary of State: Louis McLane, and Levi Woodbury, on the part of the United States, and by William Pitt Preble, Ruel Williams, and Nicholas Emery, on the part of Maine. It never was ratified. Nor did the fact that it was concluded become Moore, Int. Arbitrations, I. 138, citing S. Ex. Doc. 431, 25 Cong. 2 sess. On April 14, 1838, Edward Everett, who was then governor of Massachusetts, confidentially asked the opinion of Mr. Justice Story concerning a resolution of the Massachusetts legislature, which had been presented to him for his signature, in which it was declared that o power delegated by the Constitution to the United States authorized the government to cede to a foreign nation any territory lying within the limits of a State of the Union. Mr. Everett called attention to the fact that in § 1502 of Story's Commentaries on the Constitution, in which certain restrictions on the treaty-making power were named, that of ceding a part of a State was not mentioned, but that the remark was added, "Whether there are any other restrictions necessarily growing out of the structure of the government will remain to be considered whenever the exigency shall arise." Mr. Everett further observed that the restriction in question, if it existed, must be one of this character, but that the pending controversy did not appear to him to create such an exigency, since it was a question not of ceding an admitted part of the territory of Maine, but of ascertaining the boundary between British and American territory. Mr. Justice Story, on the 17th of April, replied that he could not admit it to be universally true that the Constitution of the United States did not authorize the government to cede to a foreign nation territory within the limits of a State, since such a cession might, for example, be indispensable to purchase peace, or might be of a nature calculated for the safety of both nations or be an equivalent for a like cession on the other side. The learned justice added that he had some years previously had a conversation on the subject with Chief Justice Marshall. “He was,” said Mr. Justice Story, "unequivocally of opinion, that the treaty-making power did extend to cases of cession of territory, though he would not undertake to say that it could extend to all cases; yet he did not doubt it must be construed to extend to some." Story, Life of Joseph Story, II. 286–289. Writers generally state that the extent of the treaty-making power in confederated governments depends upon the nature of the federal constitution. The government of the United States has always exercised the right of settling international boundaries by treaty, but has in only one case professedly ceded territory belonging to a State. This was the case of the northeastern boundary, in 1842, when the assent of Maine and Massachusetts was obtained to the settlement. Those States were not parties to the treaty, but were mentioned in the 5th article. Great Britain, however, disclaimed all responsibility for any matters between the United States and the several States. The action of the United States in this instance may have been influenced in some measure by the desire to reduce the British demands. Kent, in his Commentaries, says that the better opinion would seem to be that the power of cession belongs exclusively to the United States, though a sound discretion might forbid its exercise without the assent of the local governments immediately affected, except in cases of great necessity, when their consent might be presumed. This view is adopted by Duer in his work on constitutional law. Woolsey cites Kent's opinion, but suggests that the existence of a whole State could be blotted out only in extreme necessity. The Supreme Court. of the United States, in the case of Lattimer v. Poteet, said that the treaty-making power might settle all questions of disputed boundary without any obstruction by States or individuals. In Geofroy v. Riggs, however, there is a dictum to the effect that the consent of a State is necessary to a cession of its territory. Mr. Justice White, in his opinion in the insular cases, gives expression to the view that territory forming part of the United States can not be alienated by the simple action of the treaty-making power, but remarks that it may be done "from the exigency of a calamitous war or the necessity of a settlement of boundaries," if the alienation be expressly or impliedly ratified by Congress. Butler, in his work on the treaty-making power, strongly maintains that the national government may, by treaty, cede even an entire State, if it be necessary to preserve the interests of the whole Union. year. 1 Kent Comm. pp. **167, 284; Duer, Constitutional Jurisprudence of the United States, 138; Woolsey, Int. Law, § 103; Lattimer v. Poteet, 14 Pet. 14; Geofroy v. Riggs, 133 U. S. 267; supra, § -; Insular Cases, 182 U. S. 315; 1 Butler, Treaty-Making Power, 411-413; 2 id. 238 et seq., and, particularly, 387–394. See, also, Halleck, Int. Law, 3rd ed., by Baker, London, 1893, cap. IX., §§ 2, 3, 5, 6, pp. 307-311; Wheaton, Elements, by Lawrence (1863), 873-876; Dana's Wheaton, § 543, note 250. "The negotiations for a convention to settle the boundary question can hardly be said to have made any positive progress, since last The interest of both parties undoubtedly requires a compromise, and I have no doubt that the position which Maine has assumed is the only obstacle to bringing such a compromise about. The English government can not treat with us about a compromise, unless we say we have authority to consummate what we agree to; and although I entertain not the slightest doubt of the just authority of this government to settle this question by compromise, as well as in any other way, yet in the present position of affairs, I suppose it will not be prudent to stir, in the direction of compromise without the consent of Maine." Mr. Webster, Sec. of State, to Mr. Kent, gov. of Maine, Dec. 21, 1841, Van This letter, which was marked "Private," was written by Mr. Webster 5. DESCENT AND TENURE OF PROPERTY. § 738. Jay's treaty provided that British subjects then holding lands in the territories of the United States might continue to hold them according to their respective titles. It has been held by the Supreme Court of the United States that this provision is part of the supreme law of the land, being a constitutional exercise of the treaty-making power. Fairfax v. Hunter, 7 Cranch, 603. By the treaty of amity and commerce between the United States and France of 1778 it was provided that the subjects and inhabitants of the one country should not be reputed aliens in the other; that they should have the right to dispose of their goods by testament, donation or otherwise, and that their heirs might succeed ab intestato without being obliged to obtain letters of naturalization. In 1793 J. B. C., a native of France, settled in Maryland. In 1795 he took an oath of citizenship under a Maryland law, and next day received a conveyance of lands in that State. July 6, 1798, he was naturalized under the laws of the United States, and in the next year he died, leaving no legitimate relations except certain natives and residents of France. By a Maryland law of 1780 French subjects were accorded the rights of free citizens, but it was expressly provided that they should not have the right to hold lands, except for life, unless they qualified themselves as citizens of the State. It was argued that the estate of which J. B. C. died seized was in his lifetime escheatable, because, when he was naturalized under the Maryland law, that law had virtually been repealed by the constitution of the United States and the naturalization act passed by Congress, and when he purchased the land he had not been naturalized under the Federal law. Marshall, C. J., said it was unnecessary to inquire into the consequences of this state of things, since the treaty of 1778 enabled French subjects to hold lands in the United States; nor was it necessary to inquire into the effect of this treaty under the Articles of Confederation, since, when J. B. C. emigrated to the United States "the confederation had yielded to our present |