making power in a federative union, like the United States, can alienate the domain of one of the States without its consent. Our government, when the northeastern boundary was in dispute, declared that it had no power to dispose of territory claimed by the State of Maine. 'The better opinion would seem to be,' says Chancellor Kent, 'that such a power of cession does reside exclusively in the treaty-making power under the Constitution of the United States, although a sound discretion would forbid the exercise of it without the consent, of the interested State."2

§ 273. Numerous other opinions in support of broadest powers. These quotations could be multiplied until reiterations of principle became wearisome, and extracts could be added from many other eminent writers who have contributed the results of their thought and experience to constitutional literature, including Mr. Calhoun,' who imposes more limitations on the Federal Government than almost any other writer on the subject, but who acknowledges the wide scope of the treaty-making power, although he also imposes some limitations upon it. It would, however, simply be in the nature of cumulative evidence, to add additional excerpts, and therefore no further quotations will be made; but the reader is referred to the opinions of the judges of our highest Courts, both Federal and State, which are collated in the subsequent chapters.

§ 274. Narrower views of some authorities on the Constitution. All of the expounders of the Constitution, however, do not take such broad views of the extent and scope of the treaty-making power as it has been vested in the Central Government by the provisions of the Constitution, and while the author does not agree with them, as must be apарparent to any reader of this volume, he desires to present the views of both schools of Constitutional construction.

§ 275. John Randolph Tucker's views. Some of them contend that the treaty-making power is limited in many ways and probably John Randolph Tucker is the best representative of the school which would enforce limitations upon

1 See § 276, post, and §§ 482, and 483, Vol. II.

this power. His views as expressed in his work on the Constitution are very largely a condensation of his views expressed in a report from the Committee of Judiciary in 1887 in regard to the reciprocity treaty with the Hawaiian Islands to which reference will be made in a subsequent chapter.1

Mr. Tucker's views as to limitations, however, are here quoted at length in regard to the effect of treaties upon the essential liberties of the people. In that respect he says:

"A treaty, therefore, cannot take away essential liberties secured by the Constitution to the people. A treaty cannot bind the United States to do what their Constitution forbids them to do. We may suggest a further limitation: a treaty cannot compel any department of the government to do what the Constitution submits to its exclusive and absolute will. On these questions the true canon of construction, that the treaty-making power, in its seeming absoluteness and unconditional extent, is confronted with equally absolute and unconditional authority vested in the judiciary. Therefore, neither must be construed as absolute and unconditioned, but each must be construed and conditioned upon the equally clear power vested in the others. For example, Congress has power to lay and collect duties; the President and Senate have power to make and contract with a foreign nation in respect to such duties. Can any other construction be given to these two apparently contradictory powers than that the general power to make treaties must yield to the specific power of Congress to lay and collect all duties; and while the treaty may propose a contract as to duties on articles coming from a foreign nation, such an executory contract cannot be valid and binding unless Congress, which has supreme authority to lay and collect duties, consents to it. If it is then asked, how are you to reconcile these two powers which appear to be antagonistic, the answer is clear. Congress has no capacity to negotiate a treaty with a foreign power. The extent of its membership makes this impracti cable. The Constitution, therefore, left the House of Representatives out of all consideration in negotiating treaties. The executory contract between the United States and a for$275. pressions of Mr. Tucker's views, 1See § 307, post. For other ex- see § 10, ante and § 480, Vol. II.

eign nation is therefore confided to the one man who can conduct the negotiations, and to a select body who can advise and consent to the treaty he has negotiated. But this executory contract must depend for its execution upon the supreme power vested in Congress 'to lay and collect duties.' It is therefore a contract not completed, but inchoate, and can only be completed and binding when Congress shall by legislation consent thereto, and lay duties in accordance with the executory contract or treaty. The same reasoning may apply to all of the great powers vested in Congress, such as to borrow money, regulate commerce, coin money, raise armies and provide a navy, make laws as to naturalization, bankruptcies, and exercise exclusive legislation' in the District of Columbia and territories of the country. If these are sought by treaty to be regulated by the President and Senate, it can only be done when the Congress vested with these great powers shall give its unconditional consent." "

276. John C. Calhoun's views.-The views of Mr. Calhoun are so fully stated in a later section of this book in regard to limitations of the treaty-making power, that they will not be referred to at length at this point. In some respects, however, he is inconsistent with his general theories as to lack of all nationality in the Central Government, as he admits the necessity of placing the treaty-making power exclusively in its hands.1

§ 277. Improper use of treaty stipulations as to urging State legislation.-In view of the great preponderance of the weight of authority on the side of the broad construction of the powers of the Central Government, it is strange, that notwithstanding the opinions of the eminent jurists and commentators whose views have been given above, Commissioners who have been intrusted with the high and honorable duty of concluding treaties between the United States and foreign powers, have, on more than one cccasion, reverted to,

2 The Constitution of the United | Tucker. In two volumes, Chicago, States. A Critical Discussion of its 1899, vol. II, §§ 353-356. For quotaGenesis, Development and Inter- tion see pp. 725-726. pretation by John Randolph Tuck- § 276. er; edited by Henry St. George

1 See §§ 482-483, chap. XV, Vol. II.

1

and used, the antiquated system of 1783, and have agreed to urge legislation upon the various States," to carry out treaty stipulations, instead of making the stipulations absolutely, as the United States has the right to do, as well as to enforce them when made, and in regard to which the States have no power or voice whatever. It remains to be seen whether that policy will be continued, or whether, resting on its complete nationality, as well as upon its delegated power under the Constitution, the Central Government of the United States shall finally and forever relegate that policy to the past, where it belongs, and shall exercise those powers which necessarily and properly belong to it, and which cannot be called in question by any foreign State with which it contracts, or be disputed by any of the States for whom the Central Government is the only medium of communication with foreign powers, with full power in this respect, to bind them, jointly and separately, federally and nationally.

§ 278. This chapter confined to extent of treaty-making power. The opinions quoted in this chapter refer only to the extent of the treaty-making power, and not in any way to the construction of treaties, the relative effect of treaties and legislation, or the right of the House of Representatives to participate in the treaty-making power. Some opinions which have been expressed in those respects will be referred to, and to some extent quoted from, in subsequent chapters which will be devoted to the consideration of those branches of the subject-matter.

§ 277.

1 See Article XXVII, Treaty of 1871 (Washington) with Great Britain, in which this Government "engages to urge upon the State Governments to secure to the subjects of Her Britannic Majesty the use of the several State canals connected with the navigation of the lakes or rivers traversed by or contiguous to the boundary line between the possessions of the high contracting parties, on terms of equality with the inhabitants of the United States." U. S. Treaties,

edition, 1889, p. 489; Compilation of Treaties in Force, edition, 1899, p. 253. "Urging" compliance upon the States apparently consisted of the Secretary of State writing to the respective Governors of New York, Indiana, Illinois, Michigan, Ohio, Pennsylvania and Wisconsin an identic letter advising them of the treaty, inclosing a copy, with special reference to Article XXVII, and requesting compli ance therewith. See Foreign Relations of U. S. for 1871, p. 531.

CHAPTER X.

THE TREATY-MAKING POWER AND THE RELATIONS OF BOTH HOUSES OF CONGRESS THERETO, AS THE SAME HAS BEEN THE SUBJECT OF CONGRESSIONAL DEBATE AND ACTION.

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