56 one great field of international relation of negotiation and of ordinary public and private interest is closed up, as well against the United States as each and every one of the states. That is not a supposition to be accepted, unless it be forced upon us by considerations of overpowering cogency. Nay, it involves political impossibility. For, if one of the proper functions of sovereignty be thus utterly lost. to us, then the people of the United States are but incompletely sovereign-not sovereign-nor in coequality of right with other admitted sovereignties of Europe and America." The foregoing is a fair sample of the erroneous logic of those who contend that the Constitution creates an unlimited treaty-making power. Sovereign power is absolute, unrestricted power. There is nothing a sovereign may not do. The people of the United States are a sovereign people, but in a strict sense the United States is not a sovereign government, nor do the states possess sovereign powers. There exist sovereign powers which are not delegated to Federal authority, but the exercise of which likewise is prohibited to the states. By the Tenth Amendment to the Constitution there is distinctly created three repositories of power. With more propriety it can be said that there exists in this Nation a triple sovereignty, than to say that there exists a dual sovereignty. It requires but cursory scrutiny of the Tenth Amendment to demonstrate the conclusive truth of the assertion that our Constitution creates three repositories of power. Amendment Ten reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." In so many words this provision recognizes that there are powers not delegated to the United States, but the exercise of which is prohibited to the States. The people of the United States possess sovereign power. Some of that power 57 has been delegated to the Federal Government. Some has been delegated or reserved to the States; there remains undisposed of power which is reserved "to the people" by the express terms of the Tenth Amendment. That up to this time the people have not created an agency by which to exercise a power which may not now be exercised by either the Federal or the State governments, does not militate against the soundness of our contention. Mr. Justice Brewer, in the case of Kansas vs. Colorado, 206 U. S., recognized the existence of the three repositories of power in the following language (1. c. 90): "But the proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the 10th Amendment. This Amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the national government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if, in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act. It reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The argument of counsel ignores the principal factor in this article, to-wit, 'the people.' Its principal 58 purpose was not the distribution of power between the United States and the States, but a reservation to the people of all powers not granted. The preamble of the Constitution declares who framed it,—'we, the people of the United States,' not the people of one, state, but the people of all the states; and Article X reserves to the people of all the states the powers not delegated to the United States. The powers affecting the internal affairs of the states not granted to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, and all powers of a national character which are not delegated to the national government by the Constitution are reserved to the people of the United States. The people who adopted the Constitution knew that in the nature of things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and, after making provision for an amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. This Article X is not to be shorn of its meaning by any narrow or technical construction, but is to be considered fairly and liberally so as to give effect to its scope and meaning." It may be conceded that it is an attribute of complete sovereignty to make a Migratory Bird Treaty, but it is a power reserved "to the people" and not delegated to the United States. Recent events of the gravest importance furnish illustrations of the correctness of our position. That a full sovereign nation could enter into a treaty obligating itself to send troops on the call of an association of powers cannot be questioned, and yet, it is conceded by the most distinguished advocates of the League of Nations covenant that Article X imposes no legal obligation upon the United States to send 59 troops in such a situation, because such course would be an impingement upon the Constitutional prerogatives of the Congress. The power to make such a treaty, therefore, legally binding is reserved "to the people." The possession of sovereign power by the United States would no doubt enable it to make a treaty with Japan relative to the admission of Japanese children in the schools of California. The recent controversy with Japan over that question may be summarized thus: Japan said to America that she would like to make a treaty admitting Japanese children to the schools of California. The United States replied, "That is a matter beyond national jurisdiction. The State of California alone controls its schools." Whereupon, Japan replied, "We will then make a treaty with California." To this our Government answered, "The Constitution of the United States prohibits California from making any treaty." Where is a sovereign power of this kind lodged? The answer is, "In the people." As Applying the foregoing principle to the subject matter of the case at bar we find that the power to control migratory birds is lodged in the states. Many former decisions of this Court are to that plain effect. This is an exclusion of the exercise of any such power by the Federal Government. the States may not make a treaty with respect to the matter, it follows that the power to make such a treaty is reserved not to the Federal Government, but "to the people," and only by amendment to the Constitution can such "reserved powers be taken from the people and lodged in the Federal Government. IX. The Federal Government is a government not only of enumerated powers, but it is also a government to which certain powers are denied. Powers denied are not to be implied: they are to be obtained, if obtained at all, from, and in the manner provided by, those who originally granted 60 the enumerated powers, but who at the same time denied other powers-the people. Amendments to the Constitution, Arts. I to X, inclusive; Barron v. Baltimore, 7 Pet. 243, 247; Kansas v. Colorado, 206 U. S. 46, 89-90; United States v. Shauver, 214 Fed. 154, 156; Holden v. Joy, 17 Wallace, 243; United States v. Rhodes, 1 Abb. U. S. Rep. 43; Fairbank v. United States, 181 U. S. 283, 288. "But the proposition that there are legislative powers affecting the Nation as a whole which belong to, although not expressed in, the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the 10th amendment. This amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if, in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act." Kansas v. Colorado, 206 U. S. 46, 89-90. "We are not here confronted with a question of the extent of the powers of Congress, but one of the limitations impose by the Constitution on its action, and it seems to us clear that the same rule and spirit of construction must also be recognized. If powers granted are to be taken as broadly |