With the former State, in 1832, an agreement or treaty" was entered into by Livingston, and two other representatives of the United States, providing that the legislature of Maine should surrender provisionally to the United States certain territory in return for which it was to be indemnified by certain other territory. Fortunately this ridiculous agreement was never ratified, "nor did the fact that it was concluded become public until long after the proposed transaction had failed.""

Another chapter in the history of this long-standing controversy was added six years later. That year, Edward Everett, then Governor of Massachusetts, confidentially asked the opinion of Justice Story concerning a resolution of the Massachusetts legislature which had been presented to him for signature, declaring that no power delegated by the Constitution to the United States authorized the National Government to cede to a foreign nation any territory lying within the limits of the Union. Story replied at once that he could not admit such a proposition, since such cession might be indispensable to the purchase of peace, or of a nature calculated for the safety of both nations, or be an equivalent for a like cession on the other side. He also cited a conversation with Chief-Justice Marshall on the subject, in which the latter had expressed himself "unequivocally of the opinion that the treatymaking power did extend to cases of cession of ter

'Moore, V, 172-3.

9

ritory, though he would not undertake to say that it could extend to all cases." 8 Two years later, in deciding Lattimer v. Poteet, Justice McLean took occasion to express himself upon the same point and to the same effect:

"It is a sound principle of national law," he wrote, "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 within its constitutional powers, neither the rights of a State nor those of an individual can be interposed."

In 1842 the sixty-year-old controversy was finally disposed of by the Webster-Ashburton Treaty. In his official correspondence leading up to the final compromise, Webster, then Secretary of State, apparently took the Maine-Massachusetts view that the United States could not cede any part of the territory of a State without such State's consent. This must have been for mere purposes of argument, however, since in his personal correspondence he took quite a different tone, writing Governor Kent of Maine, in a letter marked "private," thus:

"The negotiations for a convention to settle the boundary question can hardly be said to have made

8

› Ib., 173.

14 Pet. 4 (1840).

any positive progress since last year. . . The interests of both parties undoubtedly required a compromise and I have no doubt that the position which Maine has assumed is the only obstacle to bringing such a compromise about. The English Government cannot treat with us about a compromise, unless we say we have authority to consummate what we agree to; and although I entertain not the slightest doubt of the just authority of the government to settle this question by compromise, as well as in any other way, yet in the present position of affairs, I suppose it will not be prudent to stir, in the direction of compromise, without the consent of Maine." 10

In Article V of the Webster-Ashburton Treaty it is stipulated that the Government of the United States shall pay the States of Maine and Massachusetts certain moneys, "in equal moieties, on account of their assent to boundary limits described in this treaty." 11 The State-rights view thus finally prevailed, and it is due to this precedent doubtless that the doctrine that the United States cannot cede the territory lying within a State without the State's consent, still finds its way occasionally into judicial dicta.12 Such utterances, it is submitted, are displaced fossils, protruding from a lower stratum of constitutional doctrine into an entirely alien soil. For nowadays, in con

10

Moore, V, 174. See also Chan. Kent's Views in Butler, II, 391.

11 Treaties and Conventions," 435-6.

12 J. Field in Geofroy v. Riggs, Ü. S. 258 (1890); J. White in Downes v. Bidwell, 182 U. S. 244 (1901); but J. White finally substitutes the consent of Congress for State consent.

sequence particularly of the Civil War, the doctrine is once more established that the National Government exists within the States of its own right, and without any possibility of their inserting themselves between it and its citizens and subjects; that, in other words, it is as completely sovereign within the State boundaries for the prosecution of its powers as are the States for the prosecution of theirs, to which, moreover, in case of conflict it is paramount. Moreover, this point occurs: if the National Government were not a sovereign government in the making of treaties of cession, how could the consent of individual States make it so? The Constitution recognizes no such faculty on the part of the individual States of delegating power to the National Government, save in one particular, carefully specified, and by general constitutional principles such delegation is peremptorily forbidden. 13

But port bills and treaties of cession aside, what is the verdict of practice during this period upon the point at issue? 11 During this entire period, as earlier, treaties continued to assure for consuls their regular immunities from local jurisdiction, their immunity, when not citizens of the United States, from taxation except upon real estate and personal investments, their exemption from the duty of rendering

18 See particularly J. Curtis's argument_in_Cooley v. Board of Wardens, 12 How. 299 (1851); cf. C. J. Fuller in Rahrer's case, 140 U. S. 545 (1891).

66

14 See Index to Treaties and Conventions, under Consuls," "Real Estate,” and Reciprocal Privileges."

testimony in court in person, the inviolability of their archives from any sort of judicial process whatsoever; further their right to assume jurisdiction over disputes arising between masters and sailors of vessels of their respective countries when such disputes did not involve the peace of the port; again their right to apply to the local authorities for assistance in securing the arrest and detention of deserters; and finally, frequently their right to intervene in the case of death of citizens or subjects of their respective countries, to make inventory of the property of the deceased and to take other steps looking to the safe transmission thereof to the rightful heirs. Treaties of the same period also assured aliens rights of sojourn, travel, residence, and trade, subject to the ordinary laws and on an equality with citizens of the United States or of citizens or subjects of the most favored nation, guaranteed them freedom of religion and rights of burial, and covenanted freedom of access to the courts of justice on an exact equality with citizens. They also assured aliens the most unqualified rights of acquiring, passing, willing, inheriting, and disposing of personal property, on an equality with citizens, and in the case of their inheriting real estate, where the local laws made alienage a bar to their succeeding, a reasonable term to dispose of such real estate to whom they chose; and in four instances the earlier type of treaty provision was recurred to and aliens were guaranteed the right of succession to real estate as