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Representatives to render the treaty ineffectual by refraining from passing the necessary legislation to carry it into effect. Indeed, if by any revulsion in popular feeling the political complexion of the Senate should be changed, a majority of both houses of Congress (or of two-thirds of both houses in case of veto by the President) can absolutely abrogate the treaty by enacting hostile or conflicting legislation. Such course would, indeed, be inconsistent with good faith and with the long established, and honorable course pursued by the Congress of the United States. The power, however, exists to do so, and could be exercised if Congress saw fit. It can readily be seen, therefore, that while the treaty-making power is apparently absolute and unlimited, these checks and balances practically prevent it from being exercised in any manner detrimental to the best interest of the Government and of the people.

§ 467. Diversity of opinions in regard to limitations on the treaty-making power.—If we continue the examination of the subject-matter of this chapter, we must acknowledge that it can only be in the nature of investigation, and collation, of opinions which have already been expressed by those who have given the matter their consideration, and that it will be impossible to reach any definite conclusion, on account of the many diverse opinions which have been expressed in regard to it, by men whose opinions are entitled to the highest respect, and which have undoubted weight, with legislatures and with courts.

Thomas Jefferson is credited with the statement that the United States could not exercise its treaty-making power in regard to matters wholly within State jurisdiction to any greater extent than Congress could exercise its legislative powers:- in this respect, however, he has certainly been over

§ 466.

vol. II, p. 16. For views of Jeffer1 This subject is so fully treated son and Hamilton as to the power in Chapter XII, in this volume ante, of the Central Government to alienthat no further reference will be ate territory see extracts from opinmade to it at this point. The ion of Justice WHITE in Downes vs. reader is referred to the head- Bidwell (Insular Case), U. S. Sup. lines of that chapter.

Ct. 1901, 182 U. S., 244, see p. 316, $ 467.

quoted at length in INSULAR CASES Wharton's Int. Law Digest, APPENDIX, pp. 486, 487, volume I.

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ruled by the Supreme Court, for that tribunal on numerous occasions bas distinctly held that the treaty-making power could, and did, regulate the descent of property, as well as other matters under State jurisdiction, and that in doing so it can supersede all conflicting State laws, which Congress in the absence of treaty stipulations could not possibly đo by ordinary legislation.?

$ 468. Views expressed by the Supreme Court in the License Cases.--In the preceding chapters on the effect of treaties on State legislation, cases were cited in which the Supreme Court of California expressed some doubt as to the extent of the treaty-making power,' referring to the decisions of the Supreme Court of the United States in the License 2 and Passengers Cases. Mr. Justice Daniel in his concurring opinion in the License cases refers to the extent of the treaty-making power as follows: “By the 6th article and 2d clause of the constitution it is thus declared :-'That this constitution and the laws of the United States made in pursuance thereof, and treaties made under the authority of the United States, shall be the supreme law of the land.'

“This provision of the constitution, it is to be feared, is sometimes applied or expounded without those qualifications which the character of the parties to that instrument, and its adaptation to the purposes for which it was created, necessarily imply. Every power delegated to the federal government must be expounded in coincidence with a perfect right in the States to all that they have not delegated; coincidence, too, with the possession of every power and right necessary for their existence and preservation; for it is impossible to believe that these ever were, in intention or in fact, ceded to the general government. Laws of the United States, in order to be binding, must be within the legitimate powers vested by the constitution. Treaties, to be valid, must be made within the scope of the same powers;

? Chapter XI of this volume ante, Ct. 1847, 5 Howard, 504–633, TAis devoted to the relative effect of NEY, Ch. J., MCLEAN, CATRON, State laws and treaty stipulations. DANIEL WOODBURY, GRIER, JJ. § 468.

The remarks quoted appear at 18 358, p. 59, ante. 2 The License Cases, U. $. Sup. 8 See note to $ 469.

p. 613.

for there can be no authority of the United States,' save wbat is derived mediately or immediately, and regularly and legitimately, from the constitution. A treaty, no more than an ordinary statute, can arbitrarily cede away any one right of a State or of any citizen of a State. In cases of alleged conflict between a law of the United States and the constitution, or between the law of a State and the constitution or a statute of the United States, this court must pronounce upon the validity of either law with reference to the constitution; but whether the decision of the court in such cases be itself binding or otherwise must depend upon its conformity with, or its warrant from, the constitution. It cannot be correctly held, that a decision, merely because it be by the Supreme Court, is to override alike the constitution and the laws both of the States and of the United States."

$ 469. Views in the Passenger Cases of 1849.-In the Passenger Cases the opinion of Chief Justice Taney in respect to the treaty power is as follows:(“The first inquiry is, whether, under the Constitution of the United States, the federal government has the power to compel the several States to receive, and suffer to remain in association with its citizens, every person or class of persons whom it

may be the policy or pleasure of the United States to admit. In my judgment, this question lies at the foundation of the controversy in this case. I do not mean to say that the general government have, by treaty or act of Congress, required the State of Massachusetts to permit the aliens in question to land. I think there is no treaty or act of Congress which can justly be so construed. But it is not necessary to examine that question until we have first inquired whether Congress can lawfully exercise such a power, and whether the States are bound to submit to it. For if the people of the several States of this Union reserved to themselves the power of expelling from their borders any

§ 469.

Justices wrote opinions. The 1 The Passenger Cases, U. S. court being equally divided there Sup. Ct. 1849, 7 Howard, 283, TA- was no opinion of the court. See NEY, Ch. J., MCLEAN, WAYNE, Syllabus. The extract quoted from CATRON, McKINLEY, GRIER, DAN- the Chief Justices' opinion is on IEL, WOODBURY, JJ. All of the I p. 465.

person, or class of persons, whom it might deem dangerous to its peace, or likely to produce a physical or moral evil among its citizens, then any treaty or law of Congress invading this right, and authorizing the introduction of

any person or description of persons against the consent of the State, would be an usurpation of power which this court could neither recognize nor enforce. I had supposed this question not now open to dispute.” 2

$ 470. Both of above opinions obiter; no specific treaties involved.-No particular treaty was under consideration in either of these cases; in both cases the question was whether or not general treaty relations of the United States with foreign powers, granting to their respective citizens reciprocal privileges of immigration, travel and right to carry on business in the territory of the other, prevented the States from imposing restrictions in the way of passenger taxes and license fees which would interfere with the treaty rights of aliens. The court held, as expressed in the above quoted opinions, that no treaty stipulation existed wbich would be a bar to the action. As the cases were decided on entirely different points, the remarks are to a great extent obiter, and as no particular treaty was involved, and no treaty was declared void, they cannot be considered as expressing the opinion of the court to any further extent than as a general declaration that there must be some limitation to the proper exercise of the treaty-making power, but that such limitations cannot be defined until the occasion arises for doing so in regard to some specified treaty which has overstepped those limitations.

$ 471. Justice Swayne's earlier views expressed at Circuit. - An opinion rendered by Mr. Justice Swayne in 1866,' while sitting as a Circuit Justice, has been cited on the limitation side of the question; in this he said that(“a treaty is declared by the Constitution to be the law of the land,” but

2 The Chief Justice then cites: Sup. Ct. 1842, 16 Peters, 539, Sto

Holmes vs. Jennison, U. S. Sup. RY, J. Ct. 1840, 14 Peters, 510.

$ 471. Groves vs. Slaughter, U. S. Sup. 1 United States vs. Rhodes, U. S. Ct. 1841, 15 Peters, 449, MCLEAN, J. Cir. Ct. 1866, 1 Abb. U. S. Rep. 28, Prigg vs. Pennsylvania, U. S. at p. 43, SWAYNE, J.

adds, “ What is unwarranted or forbidden by the Constitution can no more be done in one way than in another. The authority of the National Government is limited, though supreme in its sphere of operation. As compared with the State governments, the subjects upon which it operates are few in number. Its objects are all national. It is one wholly of delegated powers. The States possess all which they have not surrendered; the government of the Union only such as the Constitution has given it, expressly or incidentally, and by reasonable intendment. Whenever an act of that government is challenged, a grant of power must be shown or the act is void.” A number of treaty instances are then referred to in which Indians, colored persons and inhabitants of other countries are made citizens of the United States. All of these remarks, however, are preceded by the sentence: "These powers are not involved in the question before us, and it is not necessary, particularly to consider them”—thus showing that the whole matter was purely obiter so far as that case was concerned.

$ 472. Justice Swayne's later views expressed in the Supreme Court; Hauenstein vs. Lynham; The Cherokee Tobacco.—Mr. Justice Swayne's thoroughly considered and authoritative opinion in regard to the treaty-making power, when the matter was squarely before the court has been particularly referred to in a previous chapter, in which his decision in the case of Ilauenstein vs. Lynham, decided in 1879 is discussed at length. Mr. Justice Swayne also elsewhere expressed his views on this question a declaring that “it need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument." Undoubtedly there are cases in which it has been held that treaties could not provide for anything to be done which would be in direct violation of the Constitution. In the case last cited, however, the question involved was the relative weight of treaties and acts of Congress, and which of the two

$ 472.

2 The Cherokee Tobacco, U. S. 1 Hauenstein vs. Lynham, U. S. Sup. Ct. 1870, 11 Wallace, 616, Sup. Ct. 1879, 100 U. S. 483, SWAYNE, SWAYNE, J., and see § 378, p. 84, J., and see extracts from opinion ante. in $ 334 of chap. XI, p. 20, ante.

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