States. In other words, all that the Tenth Amendment signifies is a specific recognition of the fact implied by Article VI itself, that the States possess certain legislative powers. In the exercise of these, however, they may perchance transgress the Constitution, an act of Congress in pursuance thereof, or a treaty made under the authority of the United States. But when this happens, the pertinent provision of the Constitution is no longer the Tenth Amendment but Article VI, paragraph 2.

Nevertheless, obvious as this construction of the Tenth Amendment would seem to be, it is not the construction that it has invariably received, either with reference to the treaty-power or certain other powers, of the National Government. But by a shifting of emphasis from that clause of Amendment X, which marks the exception, to that clause which states the otherwise dominant rule, the Amendment has at times been construed as if it read, “the powers reserved to (or by) the States, are not delegated to the United States." And it is in consequence of this fact, and the confusion of doctrine thus exemplified, that it has become necessary to investigate afresh the constitutional relation between the treaty-power and the police powers of the State.

So much for the question. A word further as to the way of approach we have chosen to it, which is primarily the historical. For, as the late Samuel Butler remarks in one of his essays,

"The only way to understand a subject is to understand it historically." And if this is true of a biological theory, it is much more likely, I think, to be true of a matter like law, which is so avowedly historical in its manner of growth. But there is a second and more important consideration: The treatypower is but one item of national power. The construction of it, the scope given to it by Constitutional Law, will be found to have tended to vary with those of the other principal items of national power; and with the measured swing of the pendulum from emphasis in the Federalist period upon national rights to emphasis upon State rights in the epoch between Jackson's accession to the Presidency and the outbreak of the Civil War, and with the swing back again in the succeeding generation, will be seen to have been subjected to very calculable exigencies of delineation by a Tribunal that bends, though but slowly, the established doctrine, to accommodation with settled national views. To put my intention in a single sentence, then, it is this: To trace the line between State power and the national treaty-power as a part of the whole pattern of American Constitutional Law, as that pattern has slowly developed.

CHAPTER II

THE SCOPE OF THE TREATY-POWER

BEFORE we proceed to our main topic, it will be worth our while to review briefly the whole general subject of constitutional limitations on the treatypower, as these exist to-day. What, then, is signified by the question in general, as to the legitimate scope of the treaty-power? The formal answer to this question is, of course, not far to seek. By it is meant, within what limits is a treaty entered into by the United States legally binding. But, again, what is meant by the phrase “legally binding"? One of two things may be meant: First, legally binding upon the United States as a person at International Law; secondly, legally binding upon all individuals and things subject to the jurisdiction of the United States, as supreme law of the land." In the former sense, any treaty entered into by the President and Senate of the United States, acting in due form, is binding, since International Law takes cognizance of the American Constitution to the extent, and only to the extent, of inquiring as to what functionaries are authorized by it to act for the United States in the business of treaty-making. And the United States, being a per

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son at International Law, is bound by this refusal of International Law to make further inquiries in the direction suggested. And this is a higher limitation upon the United States than any set by the Constitution: it binds even "the People of the United States" and is the conditio sine qua non of their membership in the Family of Nations.

Evidently, therefore, we are not further interested in the question, whether the United States would be bound in International Law by a treaty that the President and Senate, acting in due form, made in excess of their constitutional powers. By International Law, the United States is bound to observe its treaties or make due reparation.

The sole question before us, therefore, is this: Within what limits is a treaty entered into by the United States in the manner specified by the Constitution binding as "supreme law of the land," which on the one hand the courts may legitimately enforce as such, or which, on the other hand, Congress may legitimately supplement with appropriate legislation? 1

In the first place, it seems to be established doctrine, that the treaty-power is limited in certain directions by the powers of Congress. Thus, while it is agreed on all hands that the treaty-making body

'Said the Supreme Court in the Cherokee Tobacco case: "It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government." II Wall. 616 (1870).

2

can enter into agreements creative of individual rights which the courts will enforce without supplementary legislation by Congress, it is equally well agreed that it cannot appropriate money, since the Constitution provides that "no money shall be drawn from the treasury but in consequence of appropriations made by law." " And from this it is generally held to follow, that Congress in making appropriations necessary to carry treaties into effect is a perfectly free agent. Such certainly seems to be the verdict usually deduced from the debate in the House of Representatives in 1796 upon Jay's Treaty, when the House discussed the policy of the treaty itself before voting the needed sums. On the other hand, Congress has never in fact refused to vote an appropriation in such a case.

More doubtful is the question, whether Congress must be consulted before a commercial treaty altering the customs rates can be put into effect. In 1816, in connection with a commercial treaty with England, Congress was in fact consulted, but it seems to have been admitted even by the spokesmen of the House that the act putting the treaty into effect was pro forma. In 1844, however, quite a different

2 Hamilton in Federalist," 23; United States v. Schooner Peggy, 1 Cranch 103 (1801).

Art. I, Sec. 9, Par. 7.

Henry Adams, "Life of Albert Gallatin," 161. Cf. Samuel B. Crandall, “Treaties, Their Making and Enforcement," 118-35.

'Report from Sen. Com. on For. Rel., February 27, 1816,