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sary for putting a treaty into full force and effect, unless, indeed, as is sometimes done, it were provided in the treaty itself that it was not to go into effect unless, and until, the necessary legislative assistance was obtained.18

§ 217. Legislative Powers Ancillary to Treaty-Making Powers. One final point with reference to the extent of the treaty-making power deserves notice. This is that where, for its enforcement, a

19 Mr. Butler, in his Treaty-Making Power of the United States, § 3, gives the following summary of his conclusions regarding the extent of the treatymaking power in the United States: "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 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 treaty-making power in any manner whatever and vested that power exclusively in, and expressly delegated it to, the Federal Government. 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 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 pro visions 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."

treaty requires ancillary legislation, Congress would seem to have the constitutional power to enact the needed laws, even though these may relate to matters not within the general sphere of its legislative authority. For it is to be presumed that the General Government has the power to render effective a treaty which it has the constitutional power to enter into. A somewhat analogous case is the legislative power recognized to belong to Congress with reference to matters of admiralty and marine, because of the grant to the Federal Judiciary of jurisdiction over admiralty and maritime causes.

§ 218. The Treaty-Making Power May not "Incorporate" Foreign Territory into the United States.

As we have already learned from our examination of the insular case of Downes v. Bidwell,19 the treaty-making power is, according to that decision, without the power to incorporate into the United States territory acquired from a foreign power. For this the consent of Congress is required. Four of the five majority justices in this case, it will be remembered, held to a distinction between incorporated and unincorporated territory. The fifth justice (Mr. Brown) held that in no case are Territories parts of the United States in the strict constitutional sense; and that, therefore, they are not entitled to all the constitutional guarantees until, by statute, the Constitution has been extended over them, or until they have been admitted into the Union as States.20

§ 219. The Treaty-Making Power May Alienate Territory of the United States or of a State or States.

In several treaties in settlement of boundary disputes areas previously claimed by the United States as its own have been surrendered to foreign powers. These, however, can scarcely be considered as instances of the alienation of portions of its own territory, for the fact that the treaties were assented to by the United States is in itself evidence that it was conceded that the

19 182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088.

20 See ante, Chapter XXX.

claim that the areas in question belonged to the United States was unfounded. There has been no instance in which territory, indisputably belonging to the United States, has been alienated to another power. Whether or not the power to do so, should the occasion arise, exists, has been often discussed, and, in fact, we have a number of obiter statements upon the point from the Supreme Court.

In De Geofroy v. Riggs21 Justice Field, in his enumeration of the limitations upon the treaty-making power, includes its inability to cede any portion of a State without its consent. In support of this declaration reference is made to the case of Fort Leavenworth R. R. Co. v. Lowe.22 That case decided, simply, that the legislative power of Congress is exclusive over lands within a State purchased with its consent by the United States for a constitutional purpose; and that a State has the constitutional power thus to cede portions of its territory to the General Government. The court in its opinion, however, goes on to say that "it is undoubtedly true that the State, whether represented by her legislature, or through a convention specially called for that purpose, is incompetent to cede her political jurisdiction and legislative authority over any part of her territory to a foreign country, without the concurrence of the General Government." As to the truth of this obiter statement, there can, of course, be no question, for, as we have already learned, the State cannot, constitutionally, have any international dealings.23

But the court go on to say: "The jurisdiction of the United States extends over all the territory within the States, and, therefore, their authority must be obtained, as well as that of the State within which the territory is situated, before any cession of sovereignty or political jurisdiction can be made to a foreign country.”

In support of this statement the court refers to the adjustment of the northeastern boundary dispute in 1842 with Great Britain,

21 133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642. 22 114 U. S. 525; 5 Sup. Ct. Rep. 995; 29 L. ed. 264.

23 Except, possibly, as we have seen (Chapter XV), with reference to such an unimportant matter as the administration of fishing upon boundary waters.

in which the United States before coming to an agreement with Great Britain, obtained the co-operation and concurrence of Maine and Massachusetts. Maine appointed commissioners by her legislature, and Massachusetts by her Governor under authority of an act of her legislature, to act with the Secretary of State of the United States in the matter.

This co-operation of the authorities of Maine and Massachusetts was at the suggestion of Webster, then Secretary of State, but it does not appear from his correspondence that he considered this a constitutional necessity, but rather that it was expedient from a political standpoint that the opinion of these two States should be considered.24 Thus, writing privately to the Governor of Maine, December 21, 1841, Webster says: "In the present position of affairs, I suppose it will not be prudent to stir in the direction of a compromise without the consent of Maine." 25

Besides the assertions of the Supreme Court in De Geofroy v. Riggs and Fort Leavenworth R. R. Co. v. Lowe, we have the argument of Justice White in Downes v. Bidwell,26 that the United States is without the treaty-right to sell or trade away any portion of territory, whether within a State or a Territory, which has been "incorporated" into the United States. "In conformity to the principle which I have admitted," he says, "it is impossible for me to say at one and the same time that territory is an integral part of the United States protected by the Constitution, and yet the safeguards, privileges, rights, and immunities which arise from this situation are so ephemeral in their character that by a mere act of sale they may be destroyed. And applying this reasoning to the provisions of the treaty under consideration, to me it seems indubitable that if the treaty with Spain incorporated all the territory ceded into the United States, it resulted that the millions of people to whom that treaty related were, without the consent of the American people as expressed by Congress,

24 See Works of Webster, V, 98; VI, 272.

25 Van Tyne's Letters of Webster, 248; quoted in Moore, Digest of Int. Law, V. 174.

26 Concurred in by Justices Shiras, McKenna and Gray.

and without any hope of relief, indissolubly made a part of our common country."

Later on in his opinion Justice White is, however, forced to say: "True, from the exigency of a calamitous war or the necessity of a settlement of boundaries, it may be that citizens of the United States may be expatriated by the action of the treatymaking power, impliedly or expressly ratified by Congress. But the arising of these particular conditions cannot justify the general proposition that territory which is an integral part of the United States may, as a mere act of sale, be disposed of."

In fact, however, as we know, Justice White held that territory might be annexed by treaty without "incorporation" into the United States, and such unincorporated territory concededly might by treaty be sold or traded away.27

Opposing these judicial obiter dicta are the decisions of the Supreme Court in Lattimer v. Poteet 28 and the opinions of such commentators as Kent, Story and Butler.

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In Lattimer v. Poteet the Supreme Court upheld a treaty of the United States with an Indian tribe whereby was ceded to the Indians an area claimed by a State as its own. "It is argued," said the court in its opinion, that it was not in the power of the United States and the Cherokee Nation, by the Treaty of Tellico in 1798, to vary in any degree the treaty line of Holston so as to affect private rights or the rights of North Carolina. It is a sound principle of international law, and applies to the treaty-making power of this government, whether exercised with a foreign nation or an Indian tribe, that all questions of disputed boundaries may be settled by the parties to the treaty. And to the exercise of these high functions by the government,

27 It will be observed that Justice White's denial to the treaty power of the right to alienate incorporated territory, save as necessitated by a disastrous war, is not predicated upon the federal character of the United States, that is, upon a doctrine of reserved rights of the States, but upon the general constitutional character of the Federal Government as one deriving its power by grant from its citizens. Cf. American Law Register, February, 1907, p. 83,

note.

28 14 Pet. 4; 10 L. ed. 328.

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