in the United States, notwithstanding the laws of the particular state in which they are situated may deny to an alien this capacity. The validity of the stipulation has been repeatedly recognized and affirmed by the national and state courts, and many existing titles are based upon it."1 § 271. Views of Story, Iredell and Pomeroy identical as to State statutes and treaty stipulations. Thus we have the evidence of Story,' Iredell' and Pomeroy, three eminent authorities on constitutional law, that the very object of Article VI was to do away forever with the policy of urging legislation upon the States, which had been adopted with such mortifying results by the framers of the Treaty of 1783, and that it was undoubtedly the intention of the framers of the Constitution to obviate such difficulties, and for that purpose the clause making treaties binding upon the States and superior to their laws and constitutions was incorporated in the instrument.3 272. Chancellor Kent's opinion. To any question, regarding the fundamental law of this country answer can almost always, if not always, be found in the Commentaries of Chancellor Kent; his views on the treaty-making power of the United States leave little room for doubt either as to the existence of that power, or as to its extent. In Lect. XIII he says: "The President has also the power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. "Writers on government have differed in opinion as to the nature of this power, and whether it be properly, in the natural distribution of power, of legislative or executive cognizance. As treaties are declared by the Constitution to be a part of the supreme law of the land, and as by means of them new relations are formed and obligations contracted, it might seem to be more consonant to the principles of republican government to consider the right of concluding specific terms of peace as of legislative jurisdiction. This has generally been the case in free governments. The de terminations respecting peace, as well as war, were made in the public assemblies of the nation at Athens and Rome, and in all the Gothic governments of Europe, when they first arose out of the rude institutions of the ancient Germans. On the other hand, the preliminary negotiations which may be required, the secrecy and despatch proper to take advantage of the sudden and favorable turn of public affairs, seem to render it expedient to place this power in the hands of the executive department. The Constitution of the United States has been influenced by the latter more than by the former considerations, for it has placed this power with the President, under the advice and control of the Senate, who are to be considered, for this purpose, in the light of an executive council. The President is the constitutional organ of communication with foreign powers, and the efficient agent in the conclusion of treaties; but the consent of two thirds of the senators present is essential to give validity to his negotiations. To have required the acquiescence of a more numerous body would have been productive of delay, disorder, imbecility, and probably, in the end, a direct breach of the Constitution. The history of Holland shows the danger and folly of placing too much limitation on the exercise of the treaty-making power. By the fundamental charter of the United Provinces peace could not be made without the unanimous consent of the provinces; and yet, without multiplying instances, it is sufficient to observe, that the immensely important and fundamental treaty of Munster, in 1648, was made when Zealand was opposed to it; and the peace of 1661, when Utrecht was opposed. So feeble are mere limitations upon paper,-mere parchment barriers, when standing in opposition to the strong force of public exigency."1 In referring to Chancellor Kent's views in regard to the extent of the treaty-making power of the United States, Professor Woolsey in his "International Law" says: "An interesting inquiry here arises, whether the treaty § 272. 1 Commentaries on American Law, by James Kent, vol. I, 12th edition edited by O. W. Holmes, Jr. and 14th edition edited by John M. Gould, Boston, 1896, p. 346 (*284) and see also the notes to that page. 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 apparent 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 2 Woolsey's International Law, § 103, p. 160, in regard to this subject; see also § 426, Vol. II. § 273. 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 impracticable. 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. 1 See § 307, post. For other ex pressions of Mr. Tucker's views, 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."2 § 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. |