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rectly controverted by Justice Field in his opinion in Geofroy vs. Riggs, which has already been cited, and which evidently referred to the Chancellor's opinion. Justice Field declared, that while the treaty-making power of the United States extended to all proper subjects of negotiation, and is in terms unlimited, except by those restraints which are found in the instrument itself against the action of the government, or of its departments, or from those arising from the nature of the government itself, and that of the States, it would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter without its consent; the learned Justice continued, however, "with

serve, the right of treating and contracting with other states, it is considered as having invested it with all the power necessary to make a valid contract. That department is the organ of the nation, and the alienations by it are valid, because they are done by the reputed will of the nation. The fundamental laws of a state may withhold from the executive department the power of transferring what belongs to the state; but if there be no express provision of that kind, the inference is, that it has confided to the department charged with the power of making treaties a discretion commensurate with all the great interests and wants and necessities of the nations.

A power to make treaties of peace necessarily implies a power to decide the terms on which they shall be made, and foreign states could not deal safely with the government upon any other presumption. The power that is intrusted generally and largely with authority to make valid treaties of peace can, of course, bind the nation by alienation of part of its territory;

and this is equally the case whether that territory be already in the occupation of the enemy or remains in the possession of the nation, and whether the property be public or private. In the case of the Schooner Peggy, the Supreme Court of the United States admitted that individual rights, acquired by war, and vested rights of the citizens, might be sacrificed by treaty for national purposes. So, in the case of Ware vs. Hylton, it was said to be a clear principle of national law that private rights might be sacrificed by treaty to secure the public safety, though the government would be bound to make compensation and indemnity to the individuals whose rights had thus been surrendered. The power to alienate, and the duty to make compensation, are both laid down by Grotius in equally explicit terms."

4 Geofroy vs. Riggs, U. S. Sup. Ct. 1890, 133 U. S. 258, FIELD, J., and see other references to this statemenu of Justice FIELD in § 335, p. 31, ante, and § 435, page 238, ante.

these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country." In one of the Insular cases recently decided, Mr. Justice White in an opinion in which three other judges concurred, expressed some views in regard to the power of the United States to cede territory. The discussion was to some extent if not entirely obiter as there was no question of cession of territory by the United States involved in those cases. $475. Professor Woolsey's views on same subject. In his work on international law Mr. Woolsey quotes Chancellor Kent's opinion as to cessions of the territory of a State and after referring to the possibilities of such a far-reaching power, says: "But it might be asked whether the treatymaking power is not necessarily limited by the existence of states, parties to the confederation, having control for most purposes over their own territory. Could the treaty-making power blot out the existence of a State which helped to create the Union, by ceding away all its domain? Such fearful power was never lodged in the general government by the Constitution and could never be lawfully exercised in the ordinary contingencies of the confederation. Only in extreme cases, where the treaty-making power is called upon to accept the fact of conquest, or to save the whole body from ruin by surrendering a part, could such an exercise of power be justified.”1

Mr. Woolsey strikes the nail on the head when he says that the power might be exercised "in order to save the whole body from ruin;" it is only in such a case that the power would be exercised to its full extent; certainly if it became necessary to save the balance of the Union by surrendering a portion of it, the power exists so that it can be exercised and the safety of the Union thus insured.

§ 476. Conclusions deduced from the settlement of this 5 Downes VS. Bidwell (Insular | regard to cession of territory, see Cases), U. S. Sup. Ct. 1901, 182 pp. 315, et seq. See also extracts U. S. 244, BROWN, J. For concur- from this opinion in INSULAR CASES ring opinion of WHITE, J., in which APPENDIX at end of volume I. SHIRAS and MCKENNA, JJ., united, $ 475. and GRAY, J., concurred in substance see p. 287, and for views in

1 Woolsey's International Law, 6th ed. p. 161.

controversy.-The relations between this country and Great Britain had become so greatly strained owing to the disputes as to the Northeastern boundary that the only way to prevent war was to absolutely relinquish all title to the northeastern corner of Maine; even if any interested State had refused to grant its consent to the cession, and even if opposition had been interposed, as fortunately was not the case, the Central Government of the United States could certainly have ceded to Great Britain all that it did cede by the treaty of 1842, and thereby perform an act inuring to the benefit of every State of the Union, including the States affected by the new boundary line.

If it be said only a part of a State was involved in that case, and that although the power might possibly be exercised as to a part of a State, an entire State could not have been ceded away, the answer can only be that if the salvation of every other State in the Union depended upon the boundary line being so fixed that an entire State should be included in British possessions, and in default thereof the Union might have been plunged into a war resulting in its destruction, undoubtedly the treaty-making power in the Central Government would have been able to accomplish that result, and it might have been just as necessary to exercise it, as at times it has been necessary to amputate a limb in order to save the life itself; in such extreme cases (and it is to be hoped they will never occur) the full extent of the power would have to be exercised-regretfully indeed but nevertheless effectually.

§ 477. Argument of strict construction not applicable to Constitution.-There is an argument which has many times been brought forward in regard to the treaty-making power, as it has been in regard to the other powers delegated to the Central Government by the Constitution, which is that all provisions in the Constitution delegating power to the Central Government must be strictly construed; the Constitution, however, has not yet been, and it is hoped never will be, construed as a penal statute; the principle of broad construction, and extension of power, rather than of narrow construction and contraction of power, is one of the doctrines of the Supreme Court which was formulated by its greatest spokes

man, Chief Justice Marshall, and pronounced in one of the most elaborately argued and reported cases which was ever decided by the Supreme Court, and one which has probably been cited as an authority as often, if not oftener, than any other decision of that Court.1

§ 478. Gibbons vs. Ogden; Chief Justice Marshall's views on constitutional construction.-In Gibbons vs. Ogden in which the claim of the State of New York to grant exclusive licenses for steamboat navigation within its own waters was overthrown, and the supremacy of the Federal Government sustained-the Chief Justice used these words in opening his opinion: "This instrument [the Constitution] contains an enumeration of powers expressly granted by the people to their government. It has been said, that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress is authorized to make all laws which shall be necessary and proper' for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the Constitution, which has been pointed out by the gentlemen of the Bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it."

The Chief Justice then continues: "What do gentlemen mean, by a strict construction? If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects

§ 477.

1 Gibbons vs. Ogden, U. S. Sup. Ct. 1824, 9 Wheaton, 1,-(the opin

ion commences on p. 186. See pp. 187 et seq.), MARSHALL, Ch. J.

of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the constitution is to be expounded. As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor, if retained by himself, or which can enure solely to the benefit of the granteee; but is an investment of power for the general advantage, in the hands of agents selected for that purpose; which power can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant. We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred."

§ 479. Justice Story's views on constitutional construction. Mr. Justice Story in his Commentaries on the Constitution cited the words just quoted, and fully endorsed them as containing the proper rule of construction for the Constitution.1 He also cited one of his own opinions 2 and replied to the argument of strict construction as follows: "A power, given in general terms, is not to be restricted to particular

$479.

1 Commentaries on the Constitution of the United States, by Joseph Story, vol. I, § 425, p. 324.

2 Martin vs. Hunter, U. S. Sup. Ct. 1816, 1 Wheaton, 304, STORY, J., and see § 331, p. 13, ante, for other opinions of Justice STORY.

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