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the treaty-making power is a necessary accompaniment to the exercise of complete sovereignty and nationality; furthermore it cannot, without the greatest injury to both the central and constituent governments, ever be exercised by any power which does not possess every element of sovereignty. Treaty stipulations can only be maintained and enforced by a governing power which possesses every such element of sovereignty. This applies not only to the en

§ 133.

1 The effect of negotiating treaties with Indian tribes was so disastrous that the United States finally stopped it by act of Congress. This will be referred to at greater length in chapter XIV which is devoted exclusively to Indian treaties (see § 403 et seq. Vol. II). The compilation of Indian treaties (U. S. Government Printing Office, 1873), shows that all sorts of contracts, deeds and agreements, not only with dependent Indian nations, but also with subordinate tribes, and even with chiefs of Indians bands, were dignified with the title of treaties, and that an endless amount of confusion and litigation arose from this improper use of the treaty-making power. It must be noted, however, that the United States never permitted any foreign nation to make treaties with Indians; the general principle, as stated in this section, therefore, was not violated by the fact that contractual relations were entered into by the United States with dependent Indian nations, tribes and bands, and that the contracts evidencing the same were called

additional quotations will be given to close the chapter.

LAWRENCE: "Every independent member of the family of nations possesses to the full the right of sending diplomatic ministers to other states; but it belongs to part-sovereign communities only in a limited form, the exact restrictions upon the diplomatic activity of each being determined by the instrument which defines its international position. Egypt, for instance, under the Sultan's Firmans of 1866 and 1867 may negotiate commercial and postal conventions with foreign powers, provided they do not contain political arrangements; and to this condition the Firman of 1879 added the further obligation of communicating them to the Porte before they are published. In the case of the looser sort of Confederations the treaty-making and negotiating power of the states which comprise them is limited by the federal act. Thus each member of the German Confederation which existed from 1815 to 1866 was bound not to do anything in its alliances with foreign powers against the security of the Confederation or any mem2 Several eminent publicists have ber of it, and when war was deexpressed themselves on this sub-clared by the Confederation no ject; some of these opinions are member of it could negotiate referred to at an earlier point in separately with the enemy. Perthis chapter (pp. 197, et seq.); two manently neutralized states can

treaties.

forcement of treaty stipulations as to the other contracting power, but also to the maintenance, in good faith, of those stipulations by every individual and government, local or constituent, under the control, or protection, of the sovereign power which has entered into, and is bound by, the treaties. In the succeeding chapters of this volume the author hopes to demonstrate that the treaty-making power of the Central Government of the United States is not only one of the greatest powers which has been confided to it, but that it is also one which it possesses in its fullest strength, and which it is able to exert over every person and State in the Union; that this power is in conformity with international law, as well as with the constitutional and municipal law of the United States, and of every State composing the Union, and that its existence in, and its exercise by, the Central Government inures alike to the benefit of every State individually, and to the Union as a whole.

make no diplomatic agreements | tence is possessed by all independwhich may lead them into hostili- ent kingdoms. ties for any other purpose than the defence of their own frontiers. Belgium, for instance, though she took part in the Conference of London of 1867, which decreed and guaranteed the neutralization of Luxemburg did not sign the Treaty of Guarantee because it bound the signatory powers to defend the Duchy from wanton attack." Lawrence's Principles of International Law, pp. 263–264.

PHILLIMORE.

"A protected State may, if it has retained its sovereignty, make Treaties and Alliances, unless the power has been expressly renounced, or cannot be exercised consistently with the conditions of its protection. We have seen that States under a Federal Union may or may not, according to the terms of their confederation, be competent to enter into Treaties with foreign nations.

"No subordinate corporations in a State can be contracting parties "XLVIII. The first point to be to a Treaty with a Foreign State." considered is, who are competent Phillimore Int. Law, 3d edition, to contract a Treaty? This compe- | vol. II, pp. 73–75.

234

CHAPTER V.

TREATIES, AND THE TREATY-MAKING POWER OF THE UNITED STATES AS EXERCISED PRIOR TO AND UNDER THE CONFEDERA

TION.

SECTION

134-Treaty making and sover

eignty as to colonies by central governments. 135-Colonies as the subject of treaties between European powers.

136-Nature of allegiance of American colonies to mother country. 137-Birth of United States; Declaration of Independence. 138-Chisholm vs. Georgia; views

of Chief Justice Jay. 139-Extent of sovereignty in the Continental Congress. 140-States' Rights School contention.

141-Broader views of Marshall and others.

142-Views of Calhoun and Tuck

er.

143-Views of Calhoun and

Tucker refuted by Justice Story and others. 144-Views of Justice Miller and Mr. Davis.

145-The Continental Congress a revolutionary government. 146-Nature of Congress prior to Constitution. 147-Independence, preservation

of States' Rights, National unity-all united in original and subsequent governments, of United States. 148-Adoption of Articles of Confederation.

SECTION

149-National unity and State independence.

150-Treaty-making power as-
sumed by Congress as an
attribute of sovereignty.
151-Treaties with France made
with States by name.
152-Principles established by
treaties with France.
153-Advantages derived by all

States under treaties with
France.

154 Treaties with France concluded prior to final ratification of Articles of Confederation.

155-Great extent of treaty-making power of Congress fully appreciated by

States.

156-Other treaties made by Con

gress.

157-Names of States recited in preambles of treaties. 158-Treaty of peace with Great Britain.

159-Special provisions of Article V.

160-Other treaties made by Congress under Confederation again referred to.

161-Other sovereign and national powers exercised by earlier Congresses. 162-Views of Justice Story.

$134. Treaty making and sovereignty as to colonies by central governments.—It has been shown in the preceding chapters that the treaty-making power is necessarily an attribute of complete sovereignty; it has also been shown that the United States government possesses such complete sovereignty and, therefore, possesses every attribute thereof; it is necessary, however, to refer to the period between the time when the original States of the Union were colonies, possessed of no self-government which was capable of exercising the treaty-making power, and the formation and adoption of the Federal Constitution, when, as States they finally prohibited all exercise of that power except through the medium of the Central Government. The thirteen years which elapsed from 1774 to 1787 was, so to speak, a period of transition, during part of which a purely revolutionary government existed, and during the balance of which the Articles of Confederation formed the basis of the Federal Government, except so far as certain broad functions of sovereignty were exercised by Congress, the basis of which was not any written articles, but the necessities of the occasion, and the fact that the colonies had become a unit as to national matters coevally with the first expression of their intention to become independent.

§ 135. Colonies as the subject of treaties between European powers.-Prior to the revolution, and the forming and adoption of the Articles of Confederation, or even the first meeting of the Colonial Congress, the American colonies had been, on more than one occasion, the subject-matter of treaties made by and between European nations without any intervention on their part, or even their expression of approval or protest being asked or permitted. Vital interests both as to intercolonial and trans-Atlantic affairs had been seriously affected without allowing the inhabitants of the great colonies in America any voice whatever.1 Under such a training, the representatives of the colonies who met in Philadelphia, as well as all thinking men in the separate colonies who took any part whatever in the local government, fully understood, and fully appreciated, the extent and § 135.

1 See collation of treaties in note under § 119, p. 204, ante.

far-reaching effects of the treaty-making power, and of the treaties concluded between sovereign powers, not only directly upon the contracting governments, but also upon all the people, whatever their local government might be, over whom the sovereignty and jurisdiction of the contracting powers extended. They were also fully aware of the fact that, as colonies, they were powerless to enter into any treaties or negotiations with each other, or with foreign powers, in regard to any matter whatever, even though their own interests might be vitally and individually affected thereby. They were obliged, therefore, to understand that if, as constituent states of a confederation, they either delegated to a central government, or conceded that a central government possessed, the treaty-making power, such power could be exercised by that central or federal government in the same far-reaching manner as it had always been exercised by the previously dominant power of Great Britain, until its jurisdiction was completely thrown off by the colonies, when they made their first move to resist the royal orders, which was equivalent to an unwritten declaration of independence.

$136. Nature of allegiance of American colonies to mother country.-By the expression "prior to the confederation" in the caption of this chapter, the only period that can be comprehended is the brief space of time that elapsed between the throwing off of the allegiance of the colonies and the adoption of the Articles of Confederation.

There is, of course, no doubt whatever as to the fact that, prior to the Revolution, the people of the colonies owed allegiance to the Crown of Great Britain. Exactly what that allegiance was, i. e., whether it was in any way connected with the colonies as separate entities, or with them as a whole, is still a matter of discussion, as is also the exact time when the colonies and colonists became free from all allegiance to the mother country. These points will always be difficult to determine, as the people of the colonies were, for a long period, prior to July 4, 1776, engaged in actual rebellion, which finally resulted in the recognition of their independence. The Continental Congress in fact had been, and was, exercising the functions of a revolutionary government, for

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