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cruelty and torture. The main point decided was that Congress had the right to establish these consular courts, because the legislation was based on stipulations made by a treaty, and that a sentence pronounced by one of those courts was valid, and could not be attacked on the ground that no trial by jury had been provided. This decision is one of the most far reaching in sustaining the treaty-making power, and the right of Congress to legislate in regard to American citizens, in a manner which would undoubtedly be unconstitutional in the absence of such treaty stipulations.

$ 453. Review of chapter.—When the author first outlined this chapter he intended to make only a brief reference to each of the six subjects referred to, for the purpose of showing to what extent the treaty-making power has been exercised. It was not then, nor has it been at any time, his intention to discuss those subjects in detail, or to collect all the authorities bearing upon them. In completing the chapter many points were naturally brought to his attention to which reference was necessary, many of them have received only a brief mention, many others have been omitted altogether. Each of these subjects could easily supply the matter for a separate volume, and the reader must understand that this chapter is essentially a series of summaries, the subjects being referred to, so far as the purpose of this book is concerned, only as they exhibit the extent of the treatymaking power of the United States.

$ 454. No treaty ever declared unconstitutional. The fact which necessarily impresses itself most forcibly on the mind of any one examining the cases cited in the preceding sections of this chapter is that no treaty, or legislation based on, or enacted to carry out, any treaty stipulations has ever been declared void or unconstitutional by any court of competent jurisdiction; notwithstanding the fact that in many cases the matters affected, both as to the treaty and the legislation, are apparently beyond the domain of congressional legislation, and in some instances of Federal jurisdiction. The people of the United States, as represented in Congress and by the Judiciary, have acquiesced in the exercise of this power, and so far as all questions that have as yet arisen, or which are likely to arise in the near future, the treaty-making power is not restricted by any limitations which can be expressly defined at the present time. The question of whether any actual limitations do exist, and if so how they can be ascertained, will be considered in the next chapter in which the author's work on the treaty-making power of the United States will be concluded.



(Note to § 349, p. 38, and § 448, p. 333, ante.) It has been held in New York that State laws relating to the administration of estates of alien decedents must give way in so far as they conflict with treaty stipulations. In re Fattosini's Estate, Surrogate's Court, Westchester Co., N. Y., 1900, 33 Misc. Rep. (N. Y.) 18; 67 New York Supplement, 1119; SILKMAN, Surrogate. In this case the most favored nation and other clauses in the treaties of 1871 and 1878 with Italy were construed in connection with certain clauses in the treaty of 1853 with Argentine Republic and the Surrogate held that “not only by inherent right, but by specific treaty provisions, the consul-general of Italy is entitled to administer in this case, and is preferred to the persons entitled under the State statute.”

See also, In re Tartaglio's Estate, Surrogate's Court, Westchester Co., N. Y., 1893, 12 Misc. (N. Y.) 245; 33 N. Y. Supplement, 1121; SILKMAN, Surrogate; Matter of Logiorato, Surrogate's Court, New York County, 1901, 34 Misc. N. Y. 31; THOMAS, Surrogate.


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SECTION 455—-Power must be limited as

preme Court in the License no unlimited powers exist.

Cases. 456–Degree of sovereignty re- 469_Views in the Passenger tained by the people.

Cases of 1849. 457—Treaty-making power and 470—Both of above opinions obithe States' Rights School.

ter; no specific treaties 458—Plenary power


involved, only by fundamental prin-| 471Justice Swayne's earlier ciples on which govern

views expressed at Circuit. ment is based.

472—Justice Swayne's later views 459—Limitations, if any, so far

expressed in the Supreme undefined and not judicial

Court, Hauenstein vs. Lynly determined.

ham ; the Cherokee TO460—Treaties within the domain

bacco. of the Political Depart- 473—Justice McLean's views in ments of the Government;

Lattimer vs. Poteet. effect of their action on 474-Northeastern boundary conthe Judiciary.

troversy; views of Daniel 461-Discussion interesting, but

Webster and Chancellor necessarily academic; use

Kent. and misuse of power. 475—Professor Woolsey's views on 462-Governmental checks on the

same subject. treaty-making power. 476—Conclusions deduced from 463—Governmental procedure in

the settlement of this conmaking treaties.

troversy. 464Powers of, and checks upon, 477–Argument of strict construcministers plenipotentiary.

tion not applicable to Con465—Necessity of ratification by

stitution, the Senate; procedure in 478–Gibbons vs. Ogden ; Chief Justhe Senate; Amendments.

tice Marshall's views on con466-Congressional power

stitutional construction. operation of treaties. 479—Justice Story's views on con467—Diversity of opinions in re

stitutional construction. gard to limitations on the 480—John Randolph Tucker's treaty-making power.

views on the limitation of 468—Views expressed by the Su

the treaty-making power.



SECTION 481–John C. Calhoun's views on

of nationality of Central the treaty-making power,

Government. and his forced admission' 482-Concluding remarks. $ 455. Power must be limited as no unlimited powers exist.—After perusing the foregoing chapters the reader may think he is justified in presuming that the author does not consider that there are any limitations whatever on the treaty-making power of the United State either as to the extent to, or subject-matter over, which it may be exercised.

Such, however, is not the case; the fact that the United States is a Constitutional Government precludes the idea of any absolutely unlimited power existing. The Supreme Court has declared that it must be admitted as to every power of society over its members that it is not absolute and unlimited ;1 and this rule applies to the exercise of the treatymaking power as it does to every other power vested in the Central Government. The question is not whether the power is limited or unlimited, but at what point do the limitations begin.?

8 456. Degree of sovereignty retained by the people.The provision in the Constitution that all powers not delegated to the United States by the Constitution, and not prohibited by it to the States, are reserved to the States respectively or to the people,' shows that, no matter to what extent sovereign powers may have been delegated to the Government, either Central or State, a certain element of sovereignty was retained by, and reserved to, the people of the United States, themselves. All sovereignty was originally vested in them, and the States and the Central Government alike derived


§ 455.

chap. IX of vol. I are necessarily 1 Murphy vs. Ramsey, U. S. Sup. again referred to in this chapter. Ct. 1883, 114 U. S. 15, MATTHEWS, J., § 456.

Loan Ass'n vs. Topeka, U. S. “The powers not delegated to Sup. Ct. 1874, 20 Wallace, 653, the United States by the ConstituMILLER, J.

tion, nor prohibited by it to the 2 In this chapter the limitations States, are reserved to the States reon the treaty-making power will be spectively, or to the people.” Const. discussed with as little repetition of the U. S., Art. X of Amendments. as possible; some of the cases al- The Constitution is included in ready cited and some of the opin- full in INSULAR CASES APPENDIX, ions of publicists referred to in Vol. I, pp. 519, et seq.

whatever sovereignty they possess from them, and, therefore such residuum of sovereignty as has not yet been delegated to either State, or Central Government must necessarily still reside in the people. In this connection the ratification of the Constitution by the people, and not by legislatures of the States, is an important factor. By such ratification the people exercised their absolute ownership of complete sovereignty to transfer a portion of it from the State governments to the Central Government, and in so doing they vested certain powers in the Central Government, and at the same time expressly prohibited the States from ever exercising them. The Central Government, deriving its powers from the people, obtained them just as broadly, and with as complete power to exercise them, as the State governments obtained from the same source the right to exercise those other sovereign and plenary powers which were lodged in the State governments by the people of each State respectively.

$ 457. Treaty-making power and the States' Rights school.—The anti-Nationalist party has been represented in the legal forum as well as in the political arena; it has made every effort to limit the powers of the Central Government, and to extend those of the States. If, however, there are any limitations upon the treaty-making power, they do not result in extending State powers as the States are absolutely prohibited from exercising the treaty-making power in any respect whatever. The Tenth Amendment to the Constitution which has just been quoted, applies with peculiar force to the treaty-making power; under its terins, as treaty-making is prohibited to the States, all power which is not delegated by the Constitution to the Central Government in regard to the making of treaties is reserved, not to State governments, but to the people. In determining the extent of, and the limitations upon, the treaty-making power of the United States, so far as the power has been delegated by the Constitution, it must be remembered that the power has been delegated

§ 457.

ing States rather than of the power i These remarks apply more par- which the Central Government posticularly to the limitations from sesses as an attribute of sovereignty the standpoint of the delegated and nationality, and which is dispower in regard to matters affect-'cussed in chapter IV of volume I.

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