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."

In the License Cases12 Justice Daniel, dissenting, declared: "This provision of the Constitution, it is to be feared, is sometimes applied or expounded without those qualifications which the character of the parties to that instrument, and its adaptation to the purposes for which it was created, necessarily imply. Every power delegated to the Federal Government must be expounded in coincidence with a perfect right in the States to all that they have not delegated; in coincidence, too, with the possession of every power and right necessary for their existence and preservation; for it is impossible to believe that these ever were in intention or in fact, ceded to the General Government. Laws of the United States, in order to be binding, must be within the legitimate powers vested by the Constitution. Treaties, to be valid, must be made within the scope of the same powers; for there can be no authority of the United States' save what is derived mediately or immediately, and regularly and legitimately, from the Constitution. A treaty, no more than an ordinary statute, can arbitrarily cede away any one right of a State or of any citizen of a State. In cases of alleged conflict between a law of a State and the Constitution or a statute of the United States, this court must pronounce upon the validity of either law with reference to the Constitution; but whether the decision of the court in such cases be itself binding or otherwise must depend upon its conformity with, or its warrant from, the Constitution. It cannot be correctly held, that a decision, merely because it be by the Supreme Court, is to override alike the Constitution and the laws both of the States and of the United States."

And in a dissenting opinion in the Passenger Cases13 Chief Justice Taney with respect to the treaty power declared: "The first inquiry is, whether, under the Constitution of the United States, the General Government has the power to compel the several States to receive, and suffer to remain in association with its 125 How. 504; 12 L. ed. 256.

137 How. 283; 12 L. ed. 762.

citizens, every person or class of persons whom it may be the policy or pleasure of the United States to admit. In my judg ment, this question lies at the foundation of the controversy in this case. I do not mean to say that the General Government have, by treaty or act of Congress, required the State of Massachusetts to permit the aliens in question to land. I think there is no treaty or act of Congress which can justly be so construed. But it is not necessary to examine that question until we have first inquired whether Congress can lawfully exercise such a power, and whether the States are bound to submit to it. For if the people of the several States of this Union reserved to themselves the power of expelling from their borders any person, or class of persons, whom it might deem dangerous to its peace, or likely to prove a physical or moral evil among its citizens, then any treaty or law of Congress invading this right, and authorizing the introduction of any person or description of persons against the consent of the State, would be an usurpation of power which this court could neither recognize nor enforce. I had supposed this question not now open to dispute."

In addition to the foregoing assertions of incompetence of the treaty-making power to invade the reserved rights of the States, there are the dicta, earlier quoted, to the effect that this power, though not in terms limited by the Constitution, is not competent to change the general character of our government. If the treatymaking power has not this power, then certainly the reserved rights of the States are not completely at its mercy. For to invade radically the exclusive jurisdiction of the States would be, in effect, to change the nature of our federal constitutional system. § 214. Instances in Which Treaties Have Been Upheld though Infringing Reserved Rights of the States.

Opposing, however, these dicta which have been quoted are a line of cases, in which treaties have been held constitutional with reference to matters which are admittedly not within the power of Congress to control. And, also, there have been numerous cases in which state laws with reference to matters within the

ordinary legislative competence of the States, have been held void because of conflict with subsisting federal treaties.14

Thus, in the case of De Geofroy v. Riggs, 15 to which reference has already been made, it is declared: "That the treaty power of the United States extends to all proper subjects of negotiation between our government and the government 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 negotiations and of regulation by mutual stipulations between the two countries. As commercial intercourse increases between different countries the residence of citizens of one country within the territory of the other naturally follows, and the removal of their disability from alienage to hold, transfer and inherit property in such cases tends to promote amicable relations. Such removal has been within the present century the frequent subject of treaty arrangement. 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. (Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525; 5 Sup. Ct. Rep. 995; 29 L. ed. 264.) 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."

14 Ware v. Hyltan, 3 Dall. 199; 1 L. ed. 568; Hopkirk v. Bell, 3 Cr. 454; 2 L. ed. 497; Fairfax v. Hunter, 7 Cr. 603; 3 L. ed. 453; Chirac v. Chirac, 2 Wheat. 259; 4 L. ed. 234; Lattimer v. Poteet, 14 Pet. 4; 10 L. ed. 328; Hauenstein v. Lynham, 100 U. S. 483; 25 L. ed. 628; De Geofroy v. Riggs, 133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642. See also a strong dictum in Ward v. Race Horse, 163 U. S. 504; 16 Sup. Ct. Rep. 1076; 41 L. ed. 244.

15 133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642.

In 1898 the President requested the official opinion of his Attorney-General as to the power of the United States to enter into treaty stipulations with Great Britain for the regulation of fisheries in the waters of the United States and Canada along the international boundary. In his opinion Mr. Griggs said: "The waters of the lake and rivers which form the boundary between the United States and Canada are upon this side of the boundary line within the territorial jurisdiction of the several riparian States. The regulation of fisheries in navigable waters within the territorial limits of the several States, in the absence of a federal treaty, is a subject of state rather than of federal jurisdiction. Congress has the paramount right to regulate navigation in the navigable waters of the United States for the benefit of all the citizens of the Union, but Congress has no authority in the absence of treaty regulations, to pass laws to regulate or protect fisheries within the territorial jurisdiction of the States. (McCready v. Virginia, 94 U. S. 391; 24 L. ed. 248; Lawton v. Steele, 152 U. S. 133; 14 Sup. Ct. Rep. 499; 38 L. ed. 385.) The question for consideration, therefore, is whether the United States by treaty may deprive the riparian States of the power of control and regulation over the fisheries in the waters within their respective jurisdictions conterminal with the boundary between the United States and Canada. It is obvious that if by the exercise of the treaty-making power the regulation of this subject is assumed by the Federal Government, the respective state governments will be deprived of jurisdiction over that subject in the same waters. The regulation of fisheries has been recognized as a proper subject for international agreement. Where a

lake or river is divided into two jurisdictions by a boundary line between two nations, it is manifest that it would be not only convenient but almost necessary for the adequate regulation of the subject that an agreement by treaty or other stipulation should exist between the governments of the two countries, in order to make any system of regulation and protection effective. The several States are by the Constitution forbidden to enter into any such treaty or regulation with any foreign power, and unless the

United States may regulate the subject by treaty it is impossible of regulation by uniform and reciprocal rules. I advise you, therefore, that the regulation of the fisheries in these boundary waters is a proper subject of the treaty-making power vested by the Constitution in the President. If it be suggested that such a treaty is beyond the constitutional power of the President and the Senate to effect, because it deprives the States of jurisdiction and authority now vested in them, and practically would annul their laws and destroy one subject of state sovereignty, without going into a history of that clause of the Constitution above quoted, which declares that all treaties made or which shall be made by the authority of the United States shall be the supreme law of the land (the discussions of which in the Constitutional Convention and in the state conventions called for the adoption of the Constitution were very extensive and interesting), it is sufficient to say that it has been held by the Supreme Court of the United States that it is no objection to the validity of a treaty that it establishes within state jurisdiction a different law and standard of rights from that established by the laws of the State."

In a number of instances, as said, state laws, with reference to matters ordinarily within state cognizance, have been held void when in conflict with existing federal treaties. Examples of this, are laws denying the right of the alien to be employed by contractors upon public works, or to be employed by private corporations. 16

§ 215. The True Doctrine.

How, now, are we to harmonize these declarations that the reserved rights of the States may not be infringed by the treatymaking power with the fact that, in specific instances, the invasion of these rights has been upheld?

Essentially speaking, the two positions, thus absolutely stated, cannot be harmonized. There is no principle that can be stated

16 Baker v. Portland, 5 Sawyer, 566; In re Tiburcio, 6 Sawyer, 349; In re Ah Chong, 6 Sawyer, 451. Cf. Proceedings of the American Soc. of Int. Law, 1907, Address by Prof. C. N. Gregory.