Court has always left the Executive and Legislative departments free to act, practically without limitation, in regard to the matters which are wholly within their respective spheres.

Furthermore the limitations, if any, can never be defined until a treaty has actually been declared void; because the Supreme Court has always adhered to the rule that no opinion in constitutional controversies can be inferentially extended beyond the points directly involved and expressly determined." So long, therefore, as treaties are declared valid, any reference of any kind, or any opinion expressed as to J., (aff'd U. S. Sup. Ct. 1862, 2 payments under a treaty and disreBlack, 481, CLIFFORD, J.). gard any writs of injunction which the judiciary might allow.

United States vs. Holliday, U. S. Sup. Ct. 1865, 3 Wallace, 407, MILLER, J.

11 Cheong Ah Moy vs. United States, U. S. Sup. Ct. 1885, 113 U. S. 216, United States vs. Johnston, U. S. MILLER, J. This was a case arisSup Ct. 1888, 124 U. S. 236, HAR-ing under the Chinese exclusion LAN, J.

United States vs. Palmer, U. S. Sup. Ct. 1818, 3 Wheaton, 610, MARSHALL, Ch. J.

United States vs. Rauscher, U. S. Sup. Ct. 1886, 119 U. S. 407, MILLER, J.

United States vs. Reynes, U. S. Sup. Ct. 1850, 9 Howard, 127 (cited as 50 U. S.), DANIEL, J.

United States vs. Yorba, U. S. Sup. Ct. 1863, 1 Wallace, 412, FIELD, J.

Whitney vs. Roberston, U. S. Sup. Ct. 1888, 124 U. S. 190, FIELD, J.

Whiton vs. Albany County Ins. Co., Sup. Ct. Mass. 1871, 109 Mass. 24, GRAY, J.

Williams vs. Suffolk Ins. Co., U. S. Sup. Ct. 1839, 13 Peters, 415, MCLEAN, J.

Other cases bearing on this point are cited in note 5 to this section, see pp. 357, et seq., ante; see also The Peggy, U. S. Sup. Ct. 1801, 1 Cranch, 103, MARSHALL, Ch. J. See 3 Atty Gen'l Opinion (Felix Grundy) p. 371, advising the Seccretary of War that the President could make

and deportation acts; before the case reached the Supreme Court the mandate had been completely carried out, and the court refused to entertain the case.

After reciting the condition of matters involved and holding it to be a moot question, the court said at the close of a brief opinion, (p. 218):

"The question, therefore, which we are asked to decide is a moot question as to plaintiff in error, and if she was permitted to give bail, it could be of no value to her, as the order by which she was remanded has been executed, and she is no longer in the custody of the marshal or in prison.

"This court does not sit here to decide questions arising in cases which no longer exist, in regard to rights which it cannot enforce."

See also United States vs. Weld, U. S. Sup. Ct. 1888, 127 U. S. 51 (p. 57), LAMAR, J., in which the court refused to determine generally the jurisdiction of the Court of Claims.

other, or supposed, conditions under which the treaty might have been declared invalid would be merely speculative, purely obiter, and not binding upon the conscience of the court whenever such conditions should come before the court in fact and not in theory.

It has also been held that although the Judicial department has no treaty-making or legislative power, it is the peculiar province of that department to construe treaties and statutes.12

§ 461. Discussion interesting, but necessarily academic; use and misuse of power.-Discussion in regard to the extent of the treaty-making power, and as to whether or not the United States Government may not at some time exceed its power, may be very interesting, but it is practically of little value. The question is not likely to arise, as, in the natural course of events, it is hardly possible, for two reasons, that any treaty will be made which the Supreme Court would be justified in declaring void: first, because the mere possession of power does not necessarily imply its misuse,' and the executive department of this government, as a general rule, acts in accordance with American policy and American principles; secondly, because the governmental checks upon the exercise of the power, and upon the carrying out of treaty stipulations practically prevent such misuse.

The people of the United States control the executive and legislative departments of the Government. They can change the Executive every four years, the lower House of Congress every two years, and the entire Congress every

12 Ogden vs. Blackledge, U. S. Sup. | States cannot question the power Ct. 1884, 2 Cranch, 272, CUSHING, J. of the other party to a treaty to do In a foot-note to the fourteenth certain acts when he has been treatedition of Kent's Commentaries, ed as having the power by the Presipage 350 (*287), the following oc- dent and Senate. Doe vs. Braden, 16 How. 635; Fellows vs. Blacksmith, 19 How. 366; see p. 330, n. 1." $461.

curs:

"But Congress has no power, it is said, to settle the rights under treaties, except in cases purely political. The construction of them is the peculiar province of the judiciary, when a case shall arise between individuals. Wilson vs. Wall, 6 Wall. 83, 89. On the other hand, the courts of the United

1 Story's Commentaries on the Constitution, vol. I, § 425, p. 324, 5th ed., see also extract in text of § 479, post; see also Anderson vs. Dunn, U. S. Sup. Ct. 1821, 6 Wheat. 204 p. 226, JOHNSON, J., cited by Story.

four years, or at the outside every six years. The people, therefore, always have it in their power, by forcing a change of executive administration, or of congressional majority, or both, to punish the improper exercise and misuse of power in the past, and to prevent it in the future. The residuum of power in the people of the United States, while it is an undefined quantity, is still the most powerful factor in the government of this country. It is the one power that is superior to all the departments of the government, separately and combined. If it cannot be exactly defined and located, it can be, and on many occasions has been, felt by every department of the government, executive, legislative, and judicial. In fact, the residuum of power reserved to the people by the Tenth Amendment to the Constitution is what is known in this country as public opinion, and as such it is respected by all worthy public officers, and feared by all who are unworthy.

§ 462. Governmental checks on the treaty-making power. -Another check upon the improper exercise of the treatymaking power is the procedure involved in the negotiation 2 In speaking of the sovereignty | laws,-carries them along or stops of the people as manifested by opin- their operation, -which makes it ion, Bliss in his treatise on Sover- possible to have any written laws, eignty (Of Sovereignty, by Phile- and without which any the wisest mon Bliss, LL. D., Boston, 1885), law might be made to mean nonsays (p. 57): "Sovereignty manifests sense. . . It is that mighty itself, according to Mr. Lieber, power which abrogates the most (1) by public opinion; (2) by gen- positive laws, and gives vast exeration of law; and (3) by power. tent to the apparently narrow limits Without these there is no sover- of others; according to which a eignty. monarch, ever so absolute in theory, cannot do a thousand things; which renders innocent what was most obnoxious, and at times makes useless the best intended measures, protecting sometimes even crime.'

It

"Public opinion is 'the sense and sentiment of the community, necessarily irresistible, showing its sovereign power everywhere. is this public opinion which gives sense to the letter and life to the law; without it the written law is a mere husk.' In further considering its power, he says:

"I have spoken of the limitation upon sovereignty created by opinion; and in any description of con

"Public opinion is not only an stitutional restraints, this power opinion pronounced upon some

assumes a commanding import

subject, but it is likewise that ance." which daily and hourly interprets |

of treaties and their ratification, and also in the enactment of legislation to carry them into effect. No treaty can, to use well understood expressions, be "railroaded," or "rushed" through the various stages necessary for its complete consummation. If there is anything wrong about it, ample opportunities are afforded for time, reflection and deliberate action, before it becomes the supreme law of the land.

The Constitution provides that the President shall make treaties by and with the consent of the Senate. This was construed by some, in the earlier days of our Government, as meaning that the advice of the Senate should be taken by the Executive before the treaty was negotiated; the consent to be given after it had been made. The impossibility, however, of obtaining an expression of opinion in advance of the negotiation of the treaty has caused that plan to be abandoned. Treaties are now concluded either by the Secretary of State, who acts for the Executive in regard to all foreign relations, or through commissioners appointed by, and representing, the President, but generally receiving their

§ 462.

1 United States Constitution, article I, sec. 10, paragraph 1: "No State shall enter into any Treaty, Alliance or Confedera

tion."

Article II, sec. 2, paragraph 2: "He (the President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law."

isters; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States."

Article III, sec. 2, paragraph 1: "The Judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls."

Article VI, paragraph 2: "This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or (the President) shall receive Am- Laws of any State to the Contrary bassadors and other public Min- notwithstanding."

Article II, sec. 3: "

he

instructions through the State Department. Commissioners are sometimes appointed by the President and confirmed by the Senate, and sometimes are appointed and act without such confirmation.

In these negotiations, while there is no obligation to consult the Senate, that body has frequently been taken into the confidence of the Executive prior to the conclusion of the treaty. This is done sometimes by the appointment of senators as commissioners; at other times the Committee on Foreign Relations, to which the treaty when completed is always immediately referred after it has been transmitted to the Senate, is consulted through its chairman 3 or through the members in sympathy with the administration. The opin ions of members of this Committee are undoubtedly of aid and assistance to the President, or to his representatives, in foreshadowing what the action of that Committee will be when the treaty shall come before it for consideration.

§ 463. Governmental procedure in making treaties.While the provisions of the Constitution, therefore, are strictly adhered to, and the President makes the treaty, the State department always, and the Senate generally, is fully apprised of the subject-matter of the negotiations and the method in which it is proposed to deal with it, before any treaty is concluded, and before the faith of the nation is even

2 During the past few years the propriety of appointing Senators to act as commissioners to negotiate treaties has been discussed in Congress on several occasions. It has been suggested that Senators should not act in such capacity as they are eventually to pass upon the treaty itself; it has been urged, on the other hand, that it is advisable to have Senators act as such commissioners so that all the circumstances surrounding the negotiation can be reported by them to the Senate, and thus fully acquaint that body with all the details involved.

3 A notable instance in this respect was when Secretary Seward

submitted the Russian treaty of 1865, ceding Alaska, to Senator Charles Sumner, then chairman of the Committee on Foreign Relations.

In the recent negotiations of several treaties, notably those in relation to reciprocity, and with Great Britain in regard to the control of trans-isthmian communication, members of the Foreign Relations Committee have been consulted by the Administration.

4 See documents recently pub lished of Compilation of Reports of this Committee referred to in note 9 to § 444, p. 312, ante.