to determine what laws were in force in the District, Congress having on February 27, 1801, declared the Maryland laws to be in force there. Upon this point the Court held that the article by its terms suspended during the existence of the treaty the inconsistent common and statutory law of Maryland. "That the

treaty power of the United States," said Mr. Justice Field, in delivering the opinion of the Court, "extends to all proper subjects of negotiation between our government and the governments of other nations, is clear. It is also clear that the protection which should be afforded to the citizens of one country owning property in another, and the manner in which that property may be transferred, devised or inherited, are fitting subjects for such negotiation and of regulation by mutual stipulations between the two countries." "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 itself and of that of the States. It would 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. 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." In an opinion given September 20, 1898, at the request of the Department of State, on the power of the United States to enter into treaty stipulations with

1 Pp. 266-7.

Great Britain for the protection of the fisheries in waters along the international boundary line between the United States and Canada, Attorney-General Griggs advised that, although the waters which formed this boundary were. on the American side within the territorial jurisdiction of the several riparian States, and Congress had no authority in the absence of a treaty to pass laws to regulate or protect fisheries within the territorial jurisdiction of the States, yet, as the regulation of fisheries had been frequently recognized as a proper subject for international agreement and in the present instance such an agreement was necessary for adequate regulation, the United States had power to enter into such stipulations.'

In a federal system of government, the sovereign body distributes the powers to be exercised by the central and by the local organs of government. It is the basic principle of such a system that this distribution as indicated in the supreme law should be recognized. It is equally true that in every sovereign nation power exists to exercise all the necessary functions of government. That it may be exercised, the power must be deposited in the one or the other, or in both of these organs of government. As by the Constitution of the United States, the entering into treaty engagements is forbidden the States, the necessary power resides either in the central organs alone, or in conjunction with the local. Against the latter alternative-the co-operation of the States-the utter failure of the practice under the Articles of Confederation, to remedy which was a prime motive in adopting the Constitution, will always stand as a warning. By Art. VII of the treaty of February 23, 1853, with France, the President of the United States engaged

122 Op. Att.-Gen., 215.

to recommend to the States of the Union, by whose laws aliens were not permitted to hold real estate, the passage of such laws as might be necessary to confer that right. What would be the ultimate result if the central government were obliged to resort to such a procedure? Few nations would enter into treaty stipulations with us guaranteeing such protection to American citizens in exchange for a promise on our part to recommend to a separate and independently acting body a similar protection. No assurance that the States would comply with the recommendation could be given. It follows that this nation would be practically incapable of entering into such agreements. To prevent this unfortunate result, the tendency of the Supreme Court has been to recognize as within the treaty-making power of the central government all those subjects which demand. international regulation and are most properly the subject of negotiation with foreign powers. The presumption always is, that the sovereign body intended so to place a necessary power of government that it may be exercised.

The power of the central government to cede by treaty territory lying within the boundaries of a State, to which Mr. Justice Field in his opinion alludes, came under consideration in Washington's administration in connection with the Spanish negotiations relative to the boundary between Georgia and Florida. In the draft of instructions of March 18, 1792, to the American commissioners, Jefferson expressed the opinion that the right to alienate even an inch of such territory did not exist in the central government. In another part of the instructions, however, he admitted that, as the result of a disastrous war, necessity might compel an abandonment of

territory.' Hamilton was not prepared to place such a restraint on the power of the central government to accommodate itself to exigencies that might arise, especially as to unpeopled territory; the instructions remained unchanged. In 1838, during the northeastern boundary controversy, the legislature of Massachusetts passed a resolution declaring that no power delegated to the central government by the Constitution authorized it to cede territory within the limits of States of the Union. In a confidential reply, April 17, to a personal request of Edward Everett, then governor of Massachusetts, for an opinion on the resolution, Mr. Justice Story said that he could not admit it to be universally true that the government of the United States was not authorized to make such cessions. He recalled that Chief Justice Marshall, when the question was under discussion some years before, "was 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." 3 Mr. Webster, however, in the final negotiations, for reasons which were not necessarily constitutional ones, sought to a certain extent the co-operation of the States of Maine and Massachusetts. Shortly after

the arrival of Lord Ashburton, letters were addressed to the two States inviting the appointment of commissioners to confer with the central government as to

'Am. State Papers For. Rel., vol. i, pp. 252, 255.

'Writings of Jefferson (Ford ed.), vol. v, pp. 443, 476. See opinions expressed in a cabinet meeting in Feb., 1793, on the proposition to cede territory to Indian tribes, ibid., vol. i, p. 219.

'Life and Letters of Joseph Story (Wm. Story ed.), vol. ii, pp. 286,

terms, conditions, considerations and equivalents, with an understanding that no line would be agreed upon without the assent of such commissioners.' Commissioners were accordingly appointed, and the final settlement was communicated to them for approval before the signing of the treaty. The treaty was not strictly a determination of the actual line but a friendly adjustment of it, in which it was admitted that concessions had been made. on the northeastern boundary in consideration of "conditions and equivalents" elsewhere. elsewhere. Speaking for the Court in the case of Fort Leavenworth R. R. Co. vs. Lowe, Mr. Justice Field expressed the opinion that before the cession to a foreign country "of sovereignty or political jurisdiction" over territory within a State the consent of the State was necessary; and likewise that the State was incompetent to make such cession without the concurrence of the central government. The case decided in this relation only that lands acquired by the central government in a State without the consent of the latter, were exempt from the legislative power of the State only when such lands were used as instrumentalities of the central government; and that lands acquired with the consent of the State for purposes specified in Article I, section 8, of the Constitution were entirely exempt from State legislation.3 Mr. Justice White in his concurring opinion in the case of Downes vs. Bidwell was led to deny the "general proposition that territory which is an integral part of the United States may, as a mere act of sale, be disposed of." He admitted that "from the exigency of a calamitous war or the settle

1 Webster's Works, vol. vi, pp. 272-4.

'Moore, International Arbitrations, vol. i, p. 147. '114 U. S., 537, 539, 540.