§ 131. Treaty-making power as an attribute of sovereignty evidenced in cases of cession of territory.-The fact

necessary for the execution of the laws of the nation, taking care, however, not to change, by any provision, in the former, the spirit of the latter.

"14 (p. 24). He concludes and signs the treaties of peace, commerce, navigation, alliance, limits, and neutrality, as well as the concordats, and all other arrangements or agreements required for the maintenance of friendly relations with the foreign powers. He also receives the ministers accredited by the latter and admits their consuls.

"Art. C (p. 26). The Supreme Court, as well as the federal inferior tribunals, shall have jurisdiction in all cases and causes, not mentioned in number 2 of article 67, of the present Constitution, involving points to be decided either by the same Constitution, the federal laws, or foreign treaties, and also in all cases and causes concerning ambassadors, public ministers and foreign consuls, admiralty cases, or cases falling under maritime jurisdiction, or cases and causes in which the nation has an interest as a party thereto, or cases between the Provinces with each other, or between a Province and the citizens of another, or between a province or its citizens against a foreign citizen or State. . . ."

"Art. CIV (p. 27). The Provinces retain all the powers not delegated by the present Constitution to the Federal Government, as well as all the powers expressly reserved by them, through special agreements, at the time of their admission into the Union.

"Art. CV. Each Province shall have its own local institutions and laws, and shall be governed by them. They elect their governors, legislators, and provincial functionaries of all classes, without intervention of the Federal Government.

"Art. CVI. Each Province shall enact its own Constitution, subject to the provisions of article V.

"Art. CVII. The Provinces shall have the power to conclude, with the knowledge of the federal Congress, such partial treaties as may be necessary for the purposes of administration of justice, or for regulating financial interests, or undertaking public works; and to promote, by means of protective laws and at their own expense, their own industries, immigration into their territories, the building of railroads and navigable canals, the settlement and colonization of the provincial lands, the introduction and establishment of new industries, the importation of foreign capital and the exploration of their rivers.

"Art. CVIII. The Provinces cannot exercise any power delegated to the nation. They cannot without authority from the Federal Congress, enter into any partial treaties of a political character, or pass laws relating to the domestic or foreign commerce or navigation, or establish provincial custom-houses, coin money, or create banks of emission. Neither can they enact any civil, commercial, criminal or mineral codes, subsequent to the promulgation of the national ones enacted by Congress, or pass laws especially applicable to themselves on the subject of citizenship, naturalization, bankruptcies and counterfeiting of money

that the treaty-making power is an attribute of sovereignty is further evidenced by the fact that only sovereign powers

or State bonds, or establish tonnage duties, arm war vessels, or raise armies, except in cases of foreign invasion or of such imminent danger as to admit of no delay, and on condition that they give full and prompt account of it to the Federal Government, or appoint or receive foreign agents, or permit new religious orders to be admitted.

"Art. CIX. No Province can declare or wage war against another. Their complaints against each other must be submitted for decision to the Supreme Court of Justice. Actual hostilities on the part of one Province against another shall be deemed to be acts of civil war, seditious and riotous, which the Federal Government has the duty to put down and repress under the laws.

"Art. CX. The Governors of the Provinces shall be the natural agents of the Federal Government for the enforcement of the Constitution and the laws of the nation." Compilation of Foreign Constitutions, compiled for the New York State Constitutional Convention, 1894, pp. 1–34.

2 THE CONFEDERATE STATES.

Prior to the attempted secession of the Southern States, questions had been raised on many occasions both in Congress and in the courts as to the extent of the treaty-making power vested in the Federal Government and as to what limitations existed thereon; the secessionists were always, naturally, the most ardent advocates, for the extension of States rights, and for the contraction of all power in the Central Government; notwithstanding this, however, when the seceding States attempted to organize a Confederate Government, they adopted a Constitution in which they expressly declared that they were sovereign and independent States and afterwards substantially followed the Constitution of the United States. The entire Constitution will be found as an Appendix in the 2d volume of Curtis' Constitutional History of the United States, pp. 569, et seq. The clauses relating to treaty are as follows: Article II, section 2, in enumerating the President's powers says: "He shall have power, by and with the advice of the Senate to make treaties, provided two-thirds of the Senate present concur." Similar limitations were placed upon the States in regard to the exercise of foreign relations as appears by section 8, article 1, which is as follows: "Article 1, § 10. 1. No State shall enter into any treaty, alliance, or Confederation; grant letters of marque and reprisal; coin money; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, or ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.

"2. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the Confederate States, and all such laws shall be subject to the revision and control of Congress.

can cede territory and transfer sovereignty thereover. Attempts on the part of the inhabitants of any territory belonging to a sovereign State, whether by the act of unorganized masses or of any organized local government, to separate themselves from the former sovereign, and to unite with any other territory are always considered as acts of rebellion on the part of the inhabitants of the territory itself, and as a casus belli on the part of the Government accepting their adhesion, or by reason of such adhesion, asserting any sovereignty over the territory involved. The desire of the inhabitants of the seceding territory to separate themselves from the mother country is, under international law, no palliation of the act of any government which either actively assists such separation, or tacitly consents to receive and extend its sovereignty over the territory. The United States fully recognized this principle of international law when it ab

"3. No State shall, without the consent of Congress, lay any duty of tonnage, except on sea-going vessels, for the improvement of its rivers and harbors navigated by the said vessels; but such duties shall not conflict with any treaties of the Confederate States with foreign nations; and any surplus revenue thus derived, shall, after making such improvement, be paid into the common treasury. Nor shall any State keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. But when any river divides or flows through two or more States, they may enter into compacts with each other to improve the navigation thereof."

The judicial power was, by section 2, Article III, extended to all cases arising under the Constitution, the laws of the Confederate States and treaties made, or which should be made, under its authority.

Clause 3 of Article VI was as follows:

"This Constitution, and the laws of the Confederate States made in pursuance thereof, and all treaties made or which shall be made under the authority of the Confederate States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." (This is an exact paraphrase of the corresponding clause of Article VI of the Constitution of the United States.)

It appears from this that although the ardent advocates of State's rights and of the strict construction of the Constitution have declared that the treaty-making power as it is vested in the Executive of the United States subject only to ratification by two-thirds of the Senate ought to be limited, and that the rights of "Sovereign States" should not be subordinated to the treaty stipulations of the Federal Government, that when

stained from receiving Texas in any capacity until that State had established its independence of Mexico beyond all question; that independence had been fully established as a fact the most extreme exponents of that school endeavored to form a constitution for themselves, they not only placed no limitations upon the power, to be exercised by the President and Senate, but they also made treaties the supreme law of the land, and binding upon the Judges in every State, exactly as provided in the Constitution of the United States; in the limitations upon the States while permitting them to lay certain tonnage duties, they especially provided that they must not in any way conflict with the treaties made by the Central Government. If the maxim "Imitation is the sincerest flattery" is true, there can be no doubt that the framers of the Constitution of the so-called Confederate States of America paid the highest possible compliment, not only to the framers of the Constitution of the United States but also to those judges of the Supreme Court who had, on repeated occasions, sustained the treaty-making power of the United States as being the supreme law of the land and paramount to the laws of any State of the Union conflicting therewith.

§ 131.

1 See special message of President Andrew Jackson, to Congress, December 21, 1836, in regard to the then contemplated recognition of Texas as an independent State, which he concludes as follows:

abroad and inspired confidence at home. Having thus discharged my duty, by presenting with simplicity and directness the views which

proved beyond cavil or dispute the ability of the people of that country to maintain their separate sovereignty and to uphold the Government constituted by them. Neither of the contending parties can justly complain of this course. By pur"The title of Texas to the terri- suing it we are but carrying out tory she claims is identified with the long established policy of our her independence. She asks us to Government-a policy which has acknowledge that title to the ter-secured to us respect and influence ritory, with an avowed design to treat immediately of its transfer to the United States. It becomes us to beware of a too early movement, as it might subject us, however un- after much reflection I have been justly, to the imputation of seek-led to take of this important subing to establish the claim of our neighbors to a territory with a view to its subsequent acquisition by ourselves. Prudence, therefore, seems to dictate that we should dispassionate, prudent, and wise still stand aloof and maintain our deliberation, with the assurance present attitude, if not until Mex- that during the short time I shall ico itself or one of the great foreign continue connected with the Govpowers shall recognize the inde- ernment I shall promptly and corpendence of the new Government, dially unite with you in such measat least until the lapse of time or ures as may be deemed best fitted the course of events shall have to increase the prosperity and

ject, I have only to add the expression of my confidence that if Congress shall differ with me upon it, then judgment will be the result of

for at least eight or nine years before the resolutions were adopted for the annexation and admission of Texas as a State. When Texas became one of the States of the Union, therefore, it was not the act of a revolting province accomplished with the aid and assistance of a government which should have remained neutral, for the United States had so remained during the Texan war for independence. The war between Texas and Mexico had resulted in Texas establishing its own government based upon the sovereign will of its people, and the government so established was, in 1845, exercising full and uncontrolled sovereignty over the Territory embraced in the boundaries of the Republic of Texas. The annexation of Texas was the result of proper action, properly taken, by two sovereign powers, each of which was fully able to contract with the other, as neither owed any allegiance to, or were under the control of, any other government or power which could place any limitations upon its action.

§ 132. General application of principles.-These same principles apply to all States exercising control over other powers by virtue of a confederation in which a central government has been created, or where the central and sovereign power has acquired control, or ownership of colonial possessions, or has assumed the protectorate over territory which has parted with any portion of its sovereignty, although in the last instance the exercise of the treaty-making power by either the protecting or protected state in regard to the relations of the latter with other foreign powers must necessarily be determined to a large extent, if not entirely, by the terms of the protectorate.

§ 133. Power only to be exercised by governments possessing complete sovereignty. The proposition, therefore, which is stated at the outset of this chapter, that the treatymaking power is an attribute of sovereignty, and can only be exercised by a government possessing every element of nationality and sovereignty, is demonstrated by historical and legal precedents and by the opinions of the most eminent writers upon this subject. It can also be stated that perpetuate the peace of our fa- | SON." Richardson's Messages of vored country. ANDREW JACK- the Presidents, vol. III, pp. 268–269.