lated and laws of revenue be passed. The Constitution, in terms, communicates the power to regulate commerce and to impose duties to that department. It communicates it, in terms, to no other. Without engaging at all in examination of the extent. limits, and objects of the power to make treaties, the committee believes that the general rule of our system is indisputably that the control of trade and the functions of taxing belong, without abridgement or participation, to Congress. They infer this from the language of the Constitution, from the nature and principles of our Government, from the theory of republican liberty itself, from the unvaried practice, evidencing the universal belief of all, in all periods and all parties and opinions. They think, too, that, as the general rule, the representatives of the people, sitting in their legislative capacity, with open doors, under the eye of the country, communicating freely with their constituents, may exercise this power more intelligently, more discreetly, may acquire more accurate and more minute information concerning the employments and the interests on which this description of measures will press, and may better discern what true policy prescribes and rejects than is within the competence of the executive department of the Government. To follow, not to lead; to fulfil, not to ordain, the law; to carry into effect, by negotiation and compact with foreign governments, the legislative will, when it has been announced, upon the great subjects of trade and revenue; not to interpose with controlling influence; not to go forward with too ambitious enterprise- these seem to the committee to be the appropriate functions of the Executive." 16

16 Compilation of Reports of the Committee on Foreign Relations, VIII, 36. With reference to this report, Mr. Calhoun, then Secretary of State, wrote to Mr. Wheaton, "If this be the true view of the treaty-making power it may be truly said that its exercise has been one continual series of habitual and uninterrupted infringements of the Constitution." He then continued: "From the beginning and throughout the whole existence of the Federal Government, it [the treaty-making power] has been exercised constantly on commerce, navigation, and other delegated powers, to the almost entire exclusion of the reserved, which, from their nature, rarely ever come into question between us and other nations. The treaty-making power has, indeed, been regarded to be so comprehensive as to embrace, with few exceptions, all questions

In the reply of Secretary Calhoun to the report of the Senate committee, Calhoun asserted that from the beginning of the government it had been the practice of the treaty-making power to compact regarding matters within the legislative powers of Congress. It will be observed, however, that neither the report, nor the reply of Calhoun bear upon the point we are now considering, namely, whether, when a treaty is entered into providing for the regulation of a matter within the ordinary legislative control of Congress, that treaty before it may be given full force and effect in this country as law, requires congressional approval.

After an account of the practice of the government and of discussions of the subject in Congress, Mr. Crandall, writing in 1904, says: "From this historical review it appears that, whatever may be the ipso facto effect of the treaty stipulations, entered into by the President and Senate, upon prior inconsistent revenue laws, not only has the House uniformly insisted upon, but the Senate has acquiesced in, their execution by Congress; that in case of proposed extensive modifications a clause has been inserted in the treaty by which its operation is expressly made dependent upon the action of Congress; and that in the recent Cuban treaty such a clause was inserted on the initiative of the Senate."17

It is to be observed, before leaving this subject, that in no case has the treaty-making power, whatever its actual concessions, ever admitted in full terms its inability to fix as law matters which that can possibly arise between us and other nations, and which can only be adjusted by their mutual consent, whether the subject-matter be comprised among the delegated or the reserved powers. So far, indeed, is it from being true, as the report supposes, that the mere fact of a power being delegated to Congress excludes it from being the subject of the treaty stipulations, that even its exclusive delegation, if we may judge from the habitual practice of the government, does not of which the power of appropriating money affords a striking example. It is expressly and exclusively delegated to Congress, and yet scarcely a treaty has been made of any importance which does not stipulate for the payment of money. No objection has ever been made on this account. The only question ever raised in reference to it is, whether Congress has not unlimited discretion to grant or withhold the appropriation." Moore's Digest of International Law, V, 164.

17 Treaties and Treaty Making, p. 145.

are within the legislative powers of Congress. Thus in 1902, Senator Cullom emphatically asserted that only with reference to the appropriation of money is legislative assistance needed in order that treaties may receive acceptance as law in our courts.'

It is to be remarked, however, that in Bertram v. Robertson' and Whitney v. Robertson,20 though the point is not expressly discussed, it would seem that the court impliedly held that a treaty might modify revenue laws, for in these cases the effect of treaties upon existing tariff laws is considered without a suggestion that the inquiry is an unnecessary one because of the inability of the treaty power to modify such statutes.

18 Cf. Butler, I, 457.

13 122 U. S. 116; 7 Sup. Ct. Rep. 1115; 30 L. ed. 1118.

20 124 U. S. 190; 8 Sup. Ct. Rep. 456; 21 L. ed. 386.

CHAPTER XXXV.

THE CONSTITUTIONAL EXTENT OF THE TREATY-MAKING POWER.

§ 210. Treaty-Making Power Granted Without Express Limita

tions.

The treaty-making power is granted in the Constitution without any express limitations as to the subjects to which it may relate. And all treaties, without qualification, are declared to be the supreme law of the land, "anything in the Constitution or laws of any State to the contrary notwithstanding." If, then, there are any limitations to its extent, they must be found inherent in the nature of the treaties themselves, or implied in other clauses of the Constitution or in the very nature of the polity which that instrument is designed to create and maintain.

§ 211. Implied Limitations.

No treaty has ever been held unconstitutional in any court, federal or state, in the United States. That there are, however, limits, despite the fact that in no case has there arisen the necessity for applying them in a court of law, would appear beyond question. From the early years of the present Government to the decision of the Insular Cases in 1901, the Supreme Court has, upon frequent occasions, stated, not only in general terms, but with reference to specific matters, that there are limits to the subjects that may, by treaty, be made the supreme law of the land. In New Orleans v. United States' speaking with reference to the succession of the United States Government to the French Government in Louisiana, the court said: "This succession did not authorize the United States to exercise prerogatives of sovereignty not consistent with the Constitution of the United States." In Pollard's Lessee v. Hagan2 the court

110 Pet. 662; 9 L. ed. 573. 23 How. 212; 11 L. ed. 565.

said: "It cannot be admitted that the King of Spain could by treaty or otherwise impart to the United States any of his royal prerogatives, and much less can it be admitted that they have capacity to receive or power to exercise them." And, later on in the same opinion: "The court denies the faculty of the Federal Government to add to its powers by treaty." In the Cherokee Tobacco Case3 the opinion declares: "It need hardly be said that a treaty cannot change the Constitution, or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government."

In De Geofroy v. Riggs Justice Field declares: "The treaty power, as expressed in the Constitution, is in terms unlimited. except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government and of 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. (Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. Rep. 995; 29 L. ed. 264.) But with 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. (Ware v. Hylton, 3 Dall. 199; 1 L. ed. 568; Chirac v. Chirac, 2 Wheat. 259; 4 L. ed. 234; Hauenstein v. Lynham, 100 U. S. 483; 25 L. ed. 628; 8 Opinions Attys. Gen. 417; The People v. Gerke, 5 California 381.)"

In Downes v. Bidwell5 four of the majority justices in their opinion deny the authority of the treaty-making power to “incorporate" annexed territory into the United States. And the minority declare that "a treaty which undertook to take away

311 Wall. 616; 20 L. ed. 227.

4 133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642. 182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088.