which will bring the dicta quoted into consonance with the decisions referred to. Either the dicta denying to the treaty-making power the right to infringe State rights are wrong, and must be abandoned, or the decisions upholding such infringement were improper, and will not be followed in the future.

The author is convinced that the obiter doctrine that the reserved rights of the States may never be infringed upon by the treaty-making power will sooner or later be frankly repudiated by the Supreme Court. In its place will be definitely stated the doctrine that in all that properly relates to matters of international rights and obligations, whether these rights and obligations rest upon the general principles of international law or have been conventionally created by specific treaties, the United States possesses all the powers of a constitutionally centralized sovereign State; and, therefore, that when the necessity from the international standpoint arises the treaty power may be exercised, even though thereby the rights ordinarily reserved to the States are invaded.

The writer is led to the belief that this will be the position finally and affirmatively taken by our judiciary from a review of the manner in which, in the past, in every instance in which it has been necessary to endow the Federal Government with a power in order that its national supremacy, and its administrative efficiency, might be preserved, the Supreme Court of the United States has found the means to do so.17

§ 216. Constitutional Limits to the Treaty-Making Power.

Assuming, then, that the reasoning which has gone before is correct, it may be asked: Are we led to the conclusion that, in extent, the treaty-making power is without constitutional limits, and may it be predicted that in no conceived case will the Supreme Court hold void of legal force a treaty duly entered into by the treaty-making power? This question may be answered in

17 A more detailed statement of this argument is given in Chapter LXIV of this work, in the section entitled "The Conclusiveness of Administrative Determinations."

the negative. As pointed out at the beginning of this chapter, there undoubtedly are limits to the extent of the treaty-making power which the Supreme Court may be expected to recognize and apply. It is true that all of the dicta that were quoted are obiter in that in no instance were they applied to hold a treaty provision void; yet, when we find the statement so positively asserted, and so many times repeated, we may, I think, take it as established.

If, however, as we have seen, individual rights and the reserved powers of the States may, upon occasion, be sacrificed to the treaty-making power, under what circumstances, and according to what principle, may we expect these limitations to be imposed? Briefly stated, the answer is that these limitations are to be found in the very nature of treaties. That is, that the treaty-making power may not be used to secure a regulation or control of a matter not properly and fairly a matter of international concern. It cannot be employed with reference to a matter not legitimately a subject for international agreement, any more than can the States under the claim of an exercise of their police powers regulate a matter not fairly comprehended within the field of police regulation. Thus, while it might be appropriate for the United States, by treaty with England, to provide that English citizens living in the United States should have certain rights of property, or schooling privileges, etc., within the States, state law to the contrary notwithstanding, it would not be appropriate, and, therefore, would not be constitutional, for the United States by such a treaty to provide that all aliens, whether British subjects or not, should enjoy these rights within the States in which they might live. So likewise, it would not be a proper or constitutional exercise of the treaty-making power to provide that Congress should have a general legislative authority over a subject which has not been given it by the Constitution; or that a power now exercised by one of the departments of the General Government should be exercised by another department. For there are matters of domestic national law with which foreign power has no concern. In short, the treaty-making power is to be exercised with constitutional bona fides.

The principle which has been stated, that, to be constitutionally valid, a treaty must have reference to a subject properly a matter for international agreement, excludes from the federal treatymaking power the authority to disregard those prohibitions of the Constitution, express and implied, which are directed not to Congress but to the National Government as a whole.

It is scarcely to be conceived that the treaty-making power will ever make the attempt, but should it seek to override these prohibitions, or to alter the distribution of powers provided for in the Constitution, or in any way to change the general character of the governmental polity by that instrument created, it may be expected that the judiciary will interpose its veto. The treatymaking power in all its fulness is granted that the National Government may be preserved, that it may be efficient for the purposes for which it is created, not that it may be destroyed or changed in essential character.

It is a principle of international law that treaties between nations should be executed with uberrima fides. Undoubtedly, however, our courts, in construing a treaty which infringes upon the ordinary reserved rights of the States, will, when possible, so interpret it as to minimize so far as possible the extent of this infringement. And, undoubtedly, the treaty-making power itself will, when possible, refrain from entering upon treaties which will trench upon the States' reserved powers, and will, in the future, take extreme pains so to word international agreements as to render impossible an interpretation by the other signatory parties which will give to them this effect. This caution the recent Japanese school question in California will suggest. But in any case, the Supreme Court will be exceedingly loth to deny legal validity to a treaty provision. For it does not need to be observed that, though by holding a treaty provision unconstitutional that provision is denied legal validity in this country, the United States is not thereby released from its obligation under it to the other signatory powers, and the result is, necessarily, a breach of our covenant with those powers. The same, of course, would be true should Congress refuse to pass the legislation neces

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

18 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."

7

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.