over the ceded territory, and the effect thereof on laws, persons and property.

XIV. The treaty-making power as it has been exercised with Indian tribes, and the relative effect of statutes, State and Federal, and Indian treaties, with some reference to the status of the Indian tribes in the United States, and the rights which the Indians originally possessed, and which they have since acquired under treaties.

XV. Special instances in which the treaty-making power has been exercised by the United States, showing that in the instances referred to, both as to the treaties themselves, and the subsequent legislation of Congress based thereon, the United States has exercised the power to the widest extent, and far beyond the domain of Congressional legislation in the absence of treaties.

XVI. Limitations on the treaty-making power of the United States as the same have been suggested by publicists, and in the opinions of the Supreme Court, and the conclusions which can be deduced therefrom.

§ 10. This work confined to United States law and decisions; other work contemplated by author.—In discussing the subject-matter of this work only authorities of Federal and State Courts of the United States will be cited and relied upon. The question of the extent of the power to be exercised by the United States Government in making and enforcing treaties, is one wholly within our own municipal law, and is not one of international law, or even the subject of diplomatic correspondence; in fact, it is not the intention of the author in this volume to discuss treaties in any aspect except as to the power of the United States Government to make them with foreign powers, and their effect when so made upon State and Federal legislation. As to all foreign countries the United States must be considered as possessing plenary powers, otherwise foreign nations would not negotiate, or conclude treaties with it; how our treaties shall be enforced within the United States-the subjectmatter of this work-is wholly within the jurisdiction of the Federal courts. To exceed these limits would be to extend the work to other fields which are sufficiently extensive to require individual consideration.

There are more than a thousand statutes, and a far greater number of judicial decisions which affect the treaty and foreign relations of the United States, and which must be examined and classified in order to fully cover the entire domain of what may properly be called "treaty law."

The author hopes to publish at a not far future date a third volume which is now in course of preparation, and to some extent cover treaty law of the United States, including rules as to construction of treaties, and the rights of States and individuals, created and affected thereby. For the present, however, the attention of the reader will be confined to the questions referred to in the previous section, especially those relating to the power and capacity of the Central Government of the United States to negotiate and conclude those agreements with foreign nations, which are so essential to the prosperity and happiness of our neighbors and ourselves, and which, in view of the far-reaching extent of American commerce and enterprise, are daily becoming of more and more importance.

14

PART I.

THE UNITED STATES IS A NATION.

CHAPTER I.

THE NATIONALITY AND SOVEREIGNTY OF THE UNITED STATES.

§ 11. Definition of Terms used in Title of Chapter.— The terms used in the title of this chapter would, in themselves, afford sufficient matter for an entire volume; if the author desired to wander from the main course of his subject

he could, at the very outset, find an intersecting pathway which would lead him far from the ultimate goal.

In this discussion, however, all of the terms are used in their broadest signification, and the subtle distinctions which can be drawn between the various uses of the terms do not form a part of the general subject-matter of this volume; the author has, however, expressed his own views and collated some of the views of authors and jurists in regard to these terms in the footnote to this section.1

NOTE BY THE AUTHOR ON DEFINITIONS OF TERMS USED. § 11.

1 The definition of the three terms used in the title of this chapter, to-wit: nationality, sovereignty and United States, are more within the domain of a work on political science than of one on the legal principles under consideration; the author does not intend, therefore, to enter into any elaborate dissertation upon the exact meaning of the terms, which are simply used in their generally accepted sense. It may not be out of place, however, to give in these notes the author's conceptions of those terms, as of course differences of opinion exist as to their meaning.

Nationality.-Nationality is used in the sense that the people of the United States constitute one nation, as stated in the decisions of Chief Justice Marshall in Cohens vs. Virginia, and Mr. Justice Gray in the Legal Tender and Chinese Exclusion cases, referred to hereafter, as distinguished from the federal element of citizenship; there is no nationality of New York, Pennsylvania or California, although those States in many respects are sovereign States; since the Civil War there is no doubt that, while there is an allegiance growing out of State citizenship, the allegiance owed by the people of the United States to the United States is paramount to every other tie of citizenship or allegiance. Nor is the word "nationality" used to distinguish the people of the United States as a people rather than as a race; the people of the United States forming, as they do, a nation, are necessarily composed of many races -Christian and Mohammedan-Anglo-Saxon, Teutonic and Latin-Jew and Gentile-all of these, as well as other racial elements, unite in forming one people as a nation; in this sense, therefore, "nationality” signifies as to the people, the element of homogeneity by which all these people are united, regardless of internal and sectional differences, into one great nation owing allegiance to a common government as against all of the other governments of the world; and that such government and the various departments composing it, is the only medium through which this great nation, and all of those elements composing it, can deal with any external government, influence or power.

Sovereignty. This is a word which has generally been discussed more

§ 12. The United States is a Nation. It is impossible to appreciate the scope of the treaty-making power of the Gov

from the standpoint of political science than of legal application. The various theories as to the existence of sovereignty, its nature, and how it is exercised and controlled, are numerous and diverse; some of them, in fact, are diametrically opposite to each other, although they are supported respectively by eminent authorities on the subjects of political science and jurisprudence; these theories, however, can be divided in two great classes, one of which, based on the divine right of kings, places sovereignty in the rulers and permits them to exercise over their subjects authority which they possess inherently, owing to the fact that they are rulers, and have so become, by the principles recognized in the country over which they rule; under this theory the great residuum of power or sovereignty remains in the ruler, and any limitations must be construed adversely to the people ruled over and favorably to the ruling power. The other class includes what may be called the AngloSaxon theory, which is that complete sovereignty originally exists in its entirety in the people, and that only such portion of sovereignty has been vested in the rulers as the people themselves have expressly delegated to the ruling power, the residuum remaining in the people.

There can be no doubt that the American principle is that complete sovereignty is vested in the people of a nation, and that the people of the United States possess sovereignty in its entirety. In adopting, as we have, a dual system of government, the sovereignty of the people has been partly delegated to the State governments, and partly to the Central Government, and the people retain only that portion of sovereignty which has not been vested in the ruling power of the States respectively, or of the United States in its national capacity. This sovereignty of the people is a part of the heritage of the Anglo-Saxon race; as such it naturally exists in all nations composed of Anglo-Saxons; it does not, however, necessarily exist naturally in people of other races; it may be that the sovereignty exercised by governmental powers of the nations of the Latin races over their people, and especially their colonies, has been, by long usage and prescription, recognized by those people and colonists as proceeding from the ruling class downward, instead of from the ruled classes upwards; in this way an apparent difficulty in handling our recently acquired possessions may be completely overcome. By the Treaty of Paris of 1898, the sovereignty over Spanish possessions was transferred to the United States; the United States succeeds to the sovereignty, as it was recognized by the subjects of Spain; it remains for the United States to clothe the people of the ceded possessions, as it has done in many respects as to the people of Porto Rico, with the same degree of autonomy as other portions of our people possess; although the change may be made gradually the people of the new possessions will finally succeed to all of the rights possessed by other people of the United States. There is no inconsistency with historical precedents in thus gradually admitting those people to privileges which they have never had before; a rule of international law which has been uni