the recognition of the fact that this Government differs from those of the old world, and that we are here charged with the duty under our system of government of developing the maximum of freedom in thought, in speech, and in action in every citizen consistent with the same right in every other American citizen under a written constitution. Nor must we be led into error by assuming that what can be done by Great Britain or Germany or any of the great powers of the world can and should be done by us. Our Government has no parallel among the nations of the world. Our constitutional form of government, dual in character, recognizing the States and the Federal government as joint instruments in the development of all governmental powers, some of which are committed to the one and some to the other, each supreme in its sphere, cach powerless in that of the other, is difficult of interpretation and unique among the nations of the earth.

By a critical examination of the provisions of the Constitution of the United States; in the interpretation thereof by the early and modern statesmen of the country; in the opinions of judges, State and Federal; and in the adjudicated cases in their bearing upon this question, we shall hope to climinate the prevalent error of the "unlimited" and boundless scope of this power and establish what are the reasonable and constitutional † "limitations on the treaty-making power" under the Constitution of the United States.

CHAPTER I

VIEWS AND OPINIONS Of Authors AND STATESMEN ON THE TREATY POWER OF THE CONSTITUTION FROM OUR EARLY HISTORY TO THE PRESENT TIME

§ 2. As preliminary to our discussion, it will be proper and profitable to present the views of statesmen and public men on different phases of this question, as expressed by them in public speeches, on the floor of Congress, or in works devoted to the discussion of constitutional questions. The true view of any question must exist independently of the convictions of any one man or set of men, but where many, who from their public experience, ability, and study, concur in one judgment as touching a subject, it must be admitted as a strong presumption in favor of the correctness of that view. With this end in view, it is proposed to cite the opinions of statesmen from the foundation of the Government down to the present time, in order to see whether there is a common ground in their expressed views which may be accepted if not as conclusive, at least as strongly persuasive of its correctness.

§ 3. Mr. Calhoun stands primus inter pares among those who have been called upon to construe the Constitution of the United States. His power of analysis, his intense carnestness, and his high personal character, point to him as one of the greatest of American statesmen.

In one place he says:1

Although the treaty-making power is exclusively vested and without enumeration or specification, in the Government

"Discourse on the Constitution and Government of the United States," Vol. I, p. 203.

OPINIONS OF AUTHORS AND STATESMEN

883-4

of the United States, it is, nevertheless, subject to several important limitations. It is, in the first place, strictly limited to questions inter alios; that is, to questions between us and foreign powers which require negotiation to adjust them. All such clearly appertain to it. But to extend it beyond these, be the pretext what it may, would be to extend it beyond the allotted sphere, and thus a palpable violation of the Constitution. It is, in the next place, limited by all the provisions of the Constitution which inhibit certain acts from being done by the Government, or any of its departments; of which description there are many. It is also limited by such provisions of the Constitution as direct certain acts to be done in a particular way, and which prohibit the contrary, of which a striking example is to be found in that which declares that no money shall be drawn from the Treasury but in consequence of appropriations to be made by law.' This not only imposes an important restriction on the power, but gives to Congress as the law making power, and to the House of Representatives as a portion of Congress, the right to withhold appropriations; * and, thereby, an important control over the treaty-making power, whenever money is required to carry a treaty into effect; which is usually the case, especially in reference to those of much importance.

"There still remains another and more important limitation, but of a more general and indefinite character. It can enter into no stipulation calculated to change the character of the Government; or to do that which can only be done by the Constitution-making power; or which is inconsistent with the nature and structure of the Government or the objects for which it was formed. Among which, it seems to be settled that it cannot change or alter the boundary of a State or cede any portion of its territory without its consent. Within these limits all questions which may arise between us and other powers, be the subject matter what it may, fall within the limits of the treaty-making power and may be adjusted by it."

§ 4. Judge St. George Tucker presents his views of the treaty-making power as follows: 1

"In our constitution, there is no restriction as to the subjects of treaties, unless perhaps the guarantee of a republican form of government, and of protection from invasion, contained 1 Tucker's Blackstone, Vol. I, Appendix, 333.

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in the fourth article, may be construed to impose such a restriction, in behalf of the several states, against the disincmberment of the federal republic.' But whether this restriction may extend to prevent the alienation by cession, of the western territory, not being a part of any state, may be somewhat more doubtful. The act of cession from Virginia militates, expressly, against such an alienation of that part of the western territory which was ceded by this state. Nevertheless, it is said to have been in contemplation soon after the establishment of the federal government, to cede the right of pre-emption to the lands in that territory to the Indians, who were then supposed to be in treaty for the same with the crown of Great Britain. The president, who had not authorised any such article, and who is said to have disapproved of it, in submitting the treaty to the consideration of the senate, called their attention particularly to that part of it; in consequence of which it was rejected, though warmly supported in the senate, as has been said. If the power of making such a dismemberment be questionable at any rate, it is much more so, when it is recollected, that the constitution seems to have vested congress collectively, and not any one or two branches of it only, with the power to dispose of that territory. The effect of this extraordinary treaty, if it had been ratified by the senate and the president, may easily be conceived. Great Britain, at that time not a little disposed to enmity towards the United States, would no doubt have insisted upon such an acquisition of territory, made under the faith of a treaty between the United States and the Indians; and thus the United States might either have been deprived of their territory by an unconstitutional treaty, or involved in a war for its preservation, by the proceedings of a body, whose authority does not extend to a final decision upon a question, whether war be necessary and expedient. This shews the collision which may possibly arise between the several branches of the congress, in consequence of this modification of the treaty-making power. For, being entrusted to a branch of the congress only, without the possibility of control or check by the other branch, so far as respects the conclusion and ratification of any treaty whatsoever, it may well happen, at some time or other, that the president and senate may overstep the limits of their just authority,

1 C. U. S. Art. 4, § 4.

L. V. Edi. 1794. C. 40.

C. U. S. Art. 4, § 3.

and the house of representatives be so tenacious of their own constitutional rights, as not to yield to the obligations imposed upon them by a treaty, the terms of which they do not approve."

Ile further says:

"But, to return to the treaty-making-power; it appears to be somewhat extraordinary, that that branch of the federal government, who are by the constitution required to concur, in a declaration of war, before any such declaration can be made, should be wholly precluded from voting at all, upon a question of peace. They are judges of the causes of war; of the existence of those causes; of the resources, and ability of the states to prosecute and support a war; of the expediency of applying those resources to the obtaining redress, or satisfaction for the injury received; in short, of every possible circumstance that can induce the nation to incur the hazard, or expence of a war: and yet, if through timidity, venality, or corruption, the president, and two thirds of a majority of the senate can be prevailed upon to relinquish the prosecution of the war, and conclude a treaty, the house of representatives have not power to prevent, or retard the measure; although it should appear to them, that the object for which the war hath been undertaken, hath not been attained, and that it was neither relinquished from necessity, or inability to prosecute it, with effect.

"These objections are not intended to extend to the agency which the president and senate may have in the formation of a treaty; nor to the principle that treaties with foreign nations should be regarded as a part of the supreme law of the land.

The honour and peace of the nation certainly require that its compacts should be duly observed, and carried into effect with perfect good faith. And though it may be the result of sound discretion to confide the formation of a treaty, in the first instance, to the president and senate, only; yet the safety of the nation seems to require that the final ratification of any compact, which is to form a part of the supreme law of the land, should, as well as other laws of the federal government, depend upon the concurrent approbation of every branch of the congress, before they acquire such a sanction as to become irrevocable, without the consent of a foreign nation; or without hazarding an imputation against the honour and faith of the nation, in the performance of its contracts.

1 Tuckor's Blackstone, Vol. I, Appendix, 338.