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to the Central Government in general terms, and the States have been prohibited from exercising it in any manner whatsoever. The Central Government necessarily possesses, therefore, every particle of power which can possibly be delegated in general terms to any Constitutional government, and in its absolute entirety except so far as the people have reserved any part of that power to themselves. The power can, and must, therefore, be exercised by the Central Government to its complete extent, except so far as the fundamental limitations exist which were referred to in Chapter I, as the general elementary rule applies that constitutional governments which derive their power from the people must exercise the plenary powers delegated to it in such manner that the trust reposed by the people in the government, which they have created for their own benefit and protection, is not betrayed or abused.

$ 458. Plenary power restrained only by fundamental principles on which government is based.-In fact the power is, and must be, plenary, that word being used in its general significance, except so far as it has been limited by the rule laid down by the Supreme Court that where plenary powers have been reposed in the Government of the United States they must be exercised in conformity with the fundamental principles of liberty which form the basis of our constitutional government.

The Central Government of the United States possesses absolute power; it may, however, be restrained from improperly exercising it. Just how such restraint can be placed upon it is a problem which would be difficult to solve even if the conditions were stated. It is impossible to solve it before the occasion requiring its solution arises. A similar rule, however, would apply to the improper action of a despotic government; in speaking of the unlimited treatymaking power vested in absolute monarchs, Professor Woolsey says: “Even the most absolute despot may make treaties, which neither his subjects nor third parties ought to regard as binding. Can the house of Romanoff, for instance, resign

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§ 458.

pp. 62, et seq., volume I, and in In1 See the cases on fundamental SULAR CASES APPENDIX at end of limitations collated in note to $ 36, volume I.

No power,

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the throne of Russia to whom it pleased? The true view here is, that the province of absolutism is not to dispose of the national life, but to maintain it without those checks on the exercise of power which exist elsewhere. however uncontrolled, was given to destroy a nation or can lawfully do so."

$ 459. Limitations, if any, so far undefined and not judicially determined.-All discussion as to the existence of limitations upon the treaty-making power of the United States must necessarily be from a purely academic standpoint. While the necessity for such discussion does not exist, every student of constitutional principles, if not every American citizen, naturally considers that limitations upon absolute power not only ought to exist, but that they ought to exist, not in the abstract but in the concrete, and be definable in express terms. If, however, any limitations do exist, they cannot be defined or expressed beyond the staternent made in the preceding section that the power must be exercised in accordance with the fundamental principles of our government, and, to refer again to Professor Woolsey, for the purpose of maintaining national life and not for the purpose of destroying it.' Any discussion on this subject must necessarily be academic, because whatever limitations do exist have never been judicially defined, as no treaty has ever been declared void by any court of the United States. Furthermore it is still an undecided question whether the judicial department of the court has the power either to declare void a treaty made and ratified according to constitutional methods or to declare that the executive and legislative departments of the government exceeded the power vested in them by the people.

$ 460. Treaties within the domain of the Political Departments of the Government; effect of their action on the Judiciary.-It is indeed doubtful whether treaties can be declared void, as any change in, or abrogation of, a treaty is a matter wholly within the legislative department of the government and wholly beyond that of the judiciary. The

Woolsey's International Law, $ 459. § 103, p. 160, 6th Ed.

1 Woolsey's International Law,

§ 103, p. 160, 6th Ed.

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Supreme Court possesses the greatest judicial powers that have ever been vested in any court of any nation. It is not only fully conscious of the great powers which it possesses and of its right to use them, but it is extremely jealous, as it should be, of its rights and powers. One of the few declarations that this court ever made in derogation of its own supreme judicial power was that if the Supreme Court possesses the power to declare a treaty void, it will never exercise it but in a very clear case indeed. That question has never been decided, because such a “clear case” never has been presented to the court as would justify the exercise of the power, if it does exist.

The Government of the United States is divided into three departments: Executive, Legislative, Judicial. These departments each have their separate spheres of action; one department cannot interfere with the functions of the other, or delegate its own powers to the other. The treaty-making

$460.

sions of this act delegated legisla1 Ware vs. Hylton U. S. Sup. Ct. tive and treaty-making powers to 1796, 3 Dall. 199, see p. 237, the President. The court held tuat CHASE, J.

if such powers had been delegated 2 “ All legislative Powers herein the act would certainly, as to such granted shall be vested in a Con- portions, have been unconstitugress of the United States, which tional, but that the powers dele. shall consist of a Senate and House gated were executive and not legisof Representatives.” U. S. Const. lative. The syllabus says: Conart. I, § 1.

gress cannot, under the Constitu“The executive Power shall be tion, delegate its legislative power vested in a President of the United to the President,” and the opinion States of America." Id. art. II, says (p. 692): $1.

“That Congress cannot delegate “The judicial Power of the legislative power to the President United States, shall be vested in is a principle universally recognized one supreme Court, and in such as vital to the integrity and maininferior Courts as the Congress may tenance of the system of governfrom time to time ordain and es- ment ordained by the Constitution. tablish." Id. art. III, $ 1.

The act of October 1, 1890, in the 3 Field vs. Clark, U. S. Sup. Ct. particular under consideration, is 1892, 143 U.S. 649, HARLAN, J. This not inconsistent with that princicase involved the validity of the ple. It does not, in any real sense, Tariff Act of October 1, 1890, (26 invest the President with the power U.S. Stat. at L. pp. 567, et seq); one of legislation. For the purpose of of the points raised was that the securing reciprocal trade with reciprocity and certain other provi- countries producing and exporting

power is a function wholly within the domain of the Executive and Legislative departments, and cannot be exercised

sugar, molasses, coffee, tea and spect to the duration of the sushides, Congress itself determined pension so ordered. But that rethat the provisions of the Act of lated only to the enforcement of October 1, 1890, permitting the free the policy established by Congress. introduction of such articles, should As tlie suspension was absolutely be suspended as to any country required when the President ascėrproducing and exporting them, that tained the existence of a particular imposed exactions and duties on fact, it cannot be said that in asthe agricultural and other products certaining that fact and in issuing of the United States, which the his proclamation, in obedience to President deemed, that is, which the legislative will, he exercised he found to be, reciprocally un- the function of making laws. Legequal and unreasonable. Congress islative power was exercised when itself prescribed, in advance, the Congress declared that the suspenduties to be levied, collected and sion should take effect upon a paid, on sugar, molasses, coffee, tea named contingency. What the or hides, produced by or exported President was required to do was from such designated country, simply in execution of the act of while the suspension lasted. Noth-Congress. It was not the making ing involving the expediency or of law. He was the mere agent of the just operation of such legisla- the law-making department to astion was left to the determination certain and declare the event upon of the President. The words he wbich its expressed will was to take may deem,' in the third section, of effect. It was a part of the law course, implied that the President itself as it left the hands of Conwould examine the commercial gress that the provisions, full and regulations of other countries pro- complete in themselves, permitting ducing and exporting sugar, mo- the free introduction of sugars, molasses, coffee, tea and hides, and lassess, coffee, tea and hides, from from a judgment as to whether particular countries, should be susthey were reciprocally equal and pended, in a given contingency, reasonable, on the contrary, in their and that in case of such suspeneffect upon American products. sions certain duties should be imBut when he ascertained the fact posed. tbat duties and exactions, reci pro- • There are many things upon cally unequal and unreasonable, which wise and useful legislation were imposed upon the agricultural must depend which cannot be or other products of the United known to the law-making power, States by a country producing and and, must, therefore, be a subject exporting sugar, molasses, coffee, of inquiry and deterinination outtea and hides, it became his duty side of the halls of legislation.' to issue a proclamation declaring (Quoting from Locke's Appeal, the suspension, as to that country, Penna. Sup. Ct. 1872, 72 Penn. St. which Congress had determined | 491, 498, AGNEW, J.] should occur. He had no discre- 6. What has been said is equally tion in the premises except in re-l applicable to the objection that the

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by the Judicial department, which has itself declared that it possesses no legislative or treaty-making power. The con

third section of the act invests belongs by the constitution to the President with treaty-making another department of the Governpower.

ment; and to alter, amend, or add to “ The court is of opinion that any treaty, by inserting any clause, the third section of the act of Oc- whether small or great, important tober 1, 1890, is not liable to the or trivial, would be on our part an objection that it transfers legisla- usurpation of power, and not an tive and treaty-making power to exercise of judicial functions. It the President. Even if it were, it would be to make, and not to conwould not, by any means, follow strue a treaty. Neither can tliis that other parts of the act, those court supply a casus omissus in a which directly imposed duties upon treaty, any more than in a law, articles imported, would be inop- We are to find out the intention of erative. But we need not in this the parties by just rules of interconnection enter upon the consid- pretation applied to the subjecteration of that question."

matter; and having found that, 4 The Amiable Isabella, U. S. Sup. our duty is to follow it as far as it Ct. 1821, 6 Wheaton, 1, STORY, J. goes, and to stop where that stopsThe XVIIth article of the treaty whatever may be the imperfections of 1795 with Spain provided that in or difficulties which it leaves becase either party should be en- hind. The parties who formed gaged in war the vessels and sub- this treaty, and they alone, have a jects of the other party must be right to annex the form of the passfurnished with sea letters or pass- port. It is a high act of soverports containing certain informa- eignty, as high as the formation tion; and that the form of passports of any other stipulation of the was to be made out and granted ac- treaty. It is a matter of negotiacording to the form annexed to tion between the Governments. this treaty.

No such form was The treaty does not leave it to the annexed to the treaty. A captured discretion of either party to annex vessel had a document which the the form of passport; it requires it claimants insisted fulfilled the re- to be the joint act of both, and quirements, as it expressed every- that act is to be expressed by both thing that was stated in the article parties in the only manner known anl which was required to be between independent nations-by a shown by the passport; the court, solemn compact through agents however, held that as no form had specially delegated, and by a formal ever been annexed to the treaty, ratification.” the whole section became inopera- Reference was made to the treaty tive and that it was beyond the of Prussia of 1785 and to the Dutch

power of the court to determine treaty of 1782 in regard to the de· whether any passport was suffi- tails and annexation of sea-letters,

cient. On page 71 Justice STORY and the court finally held that says:

(page 76) “It cannot consider the “This Court does not possess any 17th article of this treaty as comtreaty-making power. That power / plete or operative, until the form

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