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CHAPTER XXXII.

FOREIGN RELATIONS: THE TREATY POWER.

In the discussion of the constitutional power of the United States to extend its sovereignty over new territories and to govern such territories when acquired, the fact has been adverted to and relied upon, that the control of the relations of the United States with foreign nations is exclusively vested in the General Government. We have now to examine in detail the consequences which flow from this fact, and to examine into the manner in which the Constitution has provided that the federal powers thus vested are to be exercised.

$ 189. The Federal Power Exclusive.

The exclusiveness of the federal jurisdiction in all that concerns foreign affairs is deducible both from the national character of the General Government, and from the express provisions of the Constitution,

The States are expressly forbidden to "enter into any treaty, alliance, or confederation," "to grant letters of marque and reprisal," or, unless Congress consents, to "lay any duty of tonnage, keep troops or ships of war, in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will admit of no delay."

Upon the other hand, the General Government is expressly empowered "to provide for the common defence and general welfare of the United States;" "to regulate commerce with foreign na tions;"" to make treaties;"" to establish an uniform rule of naturalization;""to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;" "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land or water;"" to raise and support armies;"" to provide and maintain a navy;" "to make rules

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for the government and regulation of the land and naval forces;" "to provide for the calling forth the militia to repel invasions;"" to appoint ambassadors and other public ministers and consuls;" to adjudicate causes arising under treaties, and all cases affecting ambassadors, other public ministers and consuls, cases of admiralty and maritime jurisdiction, and cases between a State, or the citizens thereof, and foreign States, citizens and subjects. Finally, it is declared that: "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, anything in the Constitution or the laws of any State to the contrary notwithstanding."

From these express grants of power to the General Government, and prohibitions of treaty powers to the States, the intention of the framers of the Constitution to invest the Federal Government with the exclusive control of foreign affairs is readily deducible.

§ 190. The Federal Power All-Comprehensive.

The control of international relations vested in the General Government is not only exclusive, but all-comprehensive. That is to say, the authority of the United States in its dealings with foreign powers includes not only those powers which the Constitution specifically grants it, but all those powers which sovereign States in general possess with regard to matters of international concern. This general authority in the United States is fairly deducible from the fact that in its dealings with other States the United States appear as the sole representative of the American people; that upon it rests, therefore, the obligation to perform all the duties which International Law imposed upon a sovereign State; and that, therefore, having these duties to perform it is to be presumed to have commensurate powers. "That would appear to be a most unreasonable construction of the Constitution," say the coin the Legal Tender Cases, "which denies to the governm created by it the right to employ freely every means, not

prohibited, necessary for its preservation, and for the fulfilment of its acknowledged duties." The court then go on to declare: "And here it is to be observed it is not indispensable to the existence of any power claimed for the Federal Government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and infer from them all that the power claimed has been conferred.

And it is of importance to observe that Congress has often exercised, without question, powers that are not expressly given nor ancillary to any single enumerated power. Powers thus exercised are what are called by Judge Story, in his Commentaries on the Constitution, resulting powers, arising from the aggregate powers of the government. He instances the right to sue and make contracts. Many others might be given."1

This doctrine thus asserted in the Legal Tender Cases has been especially emphasized by the Supreme Court in passing upon the constitutional power of the United States to exclude or expel undesirable aliens. In the Chinese Exclusion Cases2 the court say: "While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory. . . . The control of local matters being left to local authorities, and national matters being intrusted to the Government of the Union, the problem of free institutions existing over a widely extended country, having different climates and varied interests, has been happily solved. For local interests the several States of the Union exist, but for the national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power."

112 Wall. 457; 20 L. ed. 287.

2 130 U. S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 1068.

And in Ekiu v. United States the court declare: "It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to selfpreservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such case and upon such conditions as it may see fit to prescribe. Vattel, lib. 2, 94, 100; 1 Phillimore (3d. ed.), chap. 10, § 220. In the United States this power is vested in the national government, to which the Constitution has committed the entire control of international relations, in peace as well as in war.”

Again in Fong Yue Ting v. United States, the following language is used: "The right to exclude or expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, being an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare, the question now before the court is whether the manner in which Congress has exercised this right in scetiens 6 and 7 of the Act of 1892 is consistent with the Constitution. The United States are a sovereign and independent nation, and are vested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and make it effective. The only government of this country, which other nations recognize or treat with, is the Government of the Union; and the only American flag known throughout the world is the flag of the United States."

In an earlier chapter we have seen that the power of the United States to annex territory is deducible not merely from such express grants of power, as to enter into treaties, to declare war, etc., but from the national sovereignty of the United States in its international relations.

The reasoning of the court in maintenance of the principle that in all that concerns foreign relations the United States has the same plenitude of constitutional power as that possessed by 3 142 U. S. 651; 12 Sup. Ct. Rep 336; 35 L. ed. 1146. 4 149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905.

other sovereign States is sound. This appeal, however, to the fact of "national sovereignty" as a source of federal power is not a valid one outside of the international field. It cannot properly be resorted to when recognition of an international obligation on the part of the United States is not involved, and when, therefore, the matter is purely one relating to the reserved powers of the States or to the private rights of the individuals. To permit the doctrine to apply within these fields would at once render the Federal Government one of unlimited powers.5

5 The Supreme Court has, however, upon several occasions employed language which would imply the acceptance of the doctrine in this improper manner, or, at least, has appealed to it in support of conclusions reached upon other grounds. Thus in the Legal Tender Cases (12 Wall. 457; 20 L. ed. 287) Justice Bradley says: "The United States is not only a government, but it is a national government, and the only government in this country that has the character of nationality. It is vested with power over all foreign relations of the country, war, peace, and negotiations and intercourse with other nations; all which are forbidden to the state governments. It has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike, and which require uniformity of regulation and laws. . . . Such being the character of the General Government, it seems to be a self-evident proposition that it is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally conceded to belong to every government as such, and as being essential to the exercise of its functions."

And in Juillard v. Greenman (110 U. S. 421; 4 Sup. Ct. Rep. 122; 28 L. ed. 204) the court derive additional support for its position upholding the constitutionality of the Legal Tender laws, from the doctrine that sovereign nations generally have the power. The court, in its opinion, say: "The power, as incident to the power of borrowing money and issuing bills or notes of the Government for money borrowed, of impressing upon those bills or notes the quality of being a legal tender for the payment of private debts, was a power universally understood to belong to sovereignty, in Europe and America, at the time of the framing and adoption of the Constitution of the United States. The governments of Europe, acting through the monarch or the legislature, according to the distribution of powers under their respective constitutions, had and have as sovereign a power of issuing paper money as of stamping coin. . . . The exercise of this power not being prohibited to Congress by the Constitution, it is included in the power expressly granted to borrow money on the credit of the United States, Congress as the legislature of a sovereign nation, being expressly empowered by the Constitution to lay and collect taxes, etc.... and the power to make the notes of the government a legal tender in the payment of private debts being one of the powers belonging to sovereignty in other civilized

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