are usually made between independent states, but not to make any voluntary agreement with other states for a cession of independence, whether mutual or otherwise, or to change in any way the character of the government, is plainly that held by the Supreme Court of the United States. That Court, speaking by Justice Field, in the case of Geofroy v. Riggs (133 U. S. 258, 266, 267), said:

The

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. 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 its departments, and those arising from the nature of the government itself and 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 conBut 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.

sent.

It seems clear, therefore, that the Covenant of the League of Nations, which is a super-constitution of a super-unity of which the United States is to be a member, cannot be adopted by the treaty-making process alone, since the treaty-making power does not extend so far as "to authorize a change in the character of the government." Any act which changes the character of the government is evidently an act done in the exercise of the constitution-making power, whether it has the form of a treaty, a law or an executive order.

The real question is: By what process shall the United States enter into a treaty of union having the effect to supersede in part the Constitution of the United States? This is the opposite case from a treaty of union for admitting into the union a new state or for incorporating annexed territory into the domestic body. A treaty of that sort is a treaty of union for expanding the national strength and influence; a treaty whereby the United States is itself admitted to a union, is a treaty for contracting the national powers and has a tendency to weaken the national strength and influence.

Congress is declared to have power as respects treaties for the purpose of expansion, because, as Chief Justice White has said, it represents the interests of the people of the United States, all of whom are vitally concerned in having the domestic body of the nation kept homogeneous and Americanized. It seems necessarily to follow, a fortiori, that Congress, as guardian of these vital interests, must have power as respects treaties for the purpose of contracting the national powers and placing the population in an intimate permanent union and relationship with peoples having standards and ideals different from and possibly destructive of those of the American people.

It seems far more harmonious with the general plan of the Constitution to hold that the Constitution by necessary implication intrusts to Congress this preservative function, as the guardian of all the people, of determining whether the United States shall partially extinguish itself in a union than to hold that the constitutional process for determining such a question is that of constitutional amendment or of constitutional revision through a general constitutional convention. By the practice of nations, the legislature of each

independent state is regarded as the guardian of all the people in cases where a change in the external relations of the state is proposed, which, if carried into effect, will make a difference in its domestic constitution or diminish its independence, or which is calculated to affect adversely the standards and the ideals to which its people have attained.

Congress undoubtedly may and should utilize the treaty-making process as a part of the process by which it acts as the guardian of the nation's interests. This might be accomplished by Congress providing in the act or resolution determining its procedure that in case the adoption of the Covenant should be approved by Congress, the Covenant should then go to the Senate, which should act upon the Covenant as a treaty, determining the question of its ratification by two-thirds

vote.

It would seem clear that Congress, in thus exercising this extraordinary power of acting as the guardian of the interests of all the people in determining whether it is advisable for the United States to enter into a union with foreign states, is not obliged to sit, or to proceed, in the manner which the Constitution establishes for it when it is exercising its strictly legislative powers. If this interpretation is correct, it would follow that Congress, in the act or resolution determining its procedure in this extraordinary case, might provide that the two Houses should sit in joint session and deliberate by states, the senators and congressmen from each state constituting the state delegation and each state delegation having one vote. It might also be provided that the question whether the Covenant should be approved by Congress should be determined in the affirmative only by the affirmative vote of threefourths of the states, cast by the state delegations in

the manner mentioned. The principle established by the Constitution that the assent of three-fourths of the states is necessary for amending the Constitution, would thus be preserved. If Congress should thus decide that it was advisable for the United States to enter into the Covenant, the Senate would then proceed to deliberate upon the ratification of the Covenant as a treaty, and if it should ratify the treaty by a twothirds vote, there would be every probability that the union proposed by the Covenant is worthy the adherence of the United States.

It is not derogatory to the Senate that a special procedure of the kind suggested should be adopted, according to which the legislative power and the treatymaking power would act jointly. The question whether independent states shall voluntarily yield a portion of their independence in order to enter a union, is of too high and solemn a character to be decided by a single branch of the government of a state. The legislature and the executive must together perform the great duty and take the great responsibility. It is for this reason that the Covenant will be submitted for adoption to the parliaments of the other states which are to be the members of the League.

The question of the right of Congress to participate in determining whether the United States shall enter the League, is not a question of the right of the House of Representatives to act in the making of treaties, though the modern tendency is strongly in the direction of allowing the popular branch of the legislature to participate in the making of all important treaties. It is one thing to hold that Congress, as guardian of the interests of all the people, has the right and duty, under the law of nations and the Constitution, to participate with the ordinary treaty-making organs of the United

States in determining whether the United States shall adopt a treaty having the nature of a super-constitution, which, if adopted, will change the character of our government by converting what have been the foreign relations of the United States into external domestic relations. It is a wholly different thing to hold that the House of Representatives has the right under the Constitution to participate in the making of all treaties of the ordinary kind or even in those of great economic or political importance.

The reasons why the power to make ordinary treaties was conferred on the President and Senate and not on Congress, are thus stated by William Rawle in his book above cited, A View of the Constitution of the United States of America (ed. 1829, page 65). Speaking of the alternatives which presented themselves to the Constitutional Convention as respects the branch or branches of the government which should be the depositary of the ordinary treaty-making power, he said that the choice was between vesting this power "in Congress generally, in the two Houses exclusive of the President, in the President conjointly with them or one of them, or in the President alone."

He thus states the reasons which determined the choice in favor of the President and Senate (pages 65, 66):

The formation of a treaty often requires secrecy and dispatch, neither of which could be found in the first or second mode, and a contrary plan would be inconsistent with the usages of most nations. It remained then either to vest it in the President singly, or to unite one of the other bodies with him. The latter was obviously preferable; and all that remained was to select the one whose conformation appeared most congenial to the task. The Senate is a smaller body, and therefore, whenever celerity was neces