86 rected to be done in a given mode, and all other modes prohibited." Differing in verbiage only, Mr. Justice Field, in Geofroy vs. Riggs, 133 U. S. 266-7, laid down a similar rule: "That the treaty power of the United States extends to all proper subjects of negotiation between our Government and the government of other nations is clear. 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 itself 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 that territory of the latter, without its consent. Railroad Co. vs. Lowe, 114 U. S. 523, 541. But with these exceptions, it it 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." XII. The cases usually cited by those who advocate the supremacy of a treaty do not in any instance hold that the reserved powers of a state or a trust which the state holds for the benefit of all its people are subject to and may be annulled by a treaty having for its subject the regulation of a matter which is reserved to the states respectively or to the people by the Tenth Amendment. The case most often cited and quoted by those who claim that a treaty is the supreme law of the land is Ware v. Hylton, 3 Dallas 199. Five judges sat in the case, but only four took any part in its decision. Each rendered a separate opinion. There was no opinion by the court. Three of the 87 four judges "held either that the state law was invalid, or, if valid, that it did not actually attempt to confiscate debt." In either case there could have been no conflict between the law and the treaty, according to the majority of the court, since either there was no law, because invalid, or it did not attempt to do anything contrary to the terms of the treaty. Mr. Justice Chase did hold that Virginia had a right to confiscate debts, and by the law of 1777 did confiscate debts, but this was no defense in the face of the Treaty of Peace. This was not the opinion of the court, nor the opinion of a majority of those who decided the case. (See Tucker, Limitations on Treaty-making Power, Chap. 7, p. 173 et seq.) The case of Chirac v. Chirac, 2 Wheat. 259, and the case of Geofroy v. Riggs, 133 U. S. 266, do not hold that the treaty annuls the laws of inheritance passed by the states, but that the badge of alicnage which prevented their taking under the laws of the states, was removed. The laws of the state were in full force and effect, but only the Federal Government could declare who was an alien. Mr. Justice Field, who wrote the opinion in Geofroy v. Riggs, wrote the opinion in Fox v. United States, 94 U. S. 320, in which he said: "The power of the State to regulate the tenure of real property within her limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which testamentary disposition of it may be exercised by its owners, is undoubted. It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated." If it be held that Geofroy v. Riggs holds that a state law relating to inheritance is annulled by the treaty, it is in direct conflict with the case of Fox v. United States. The cases should be held to harmonize rather than to conflict, particularly as both were written by the same judge and no reference is made in the former to the latter. 88 The cases of Orr v. Hodgson, 4 Wheat. 453, and Fairfax v. Hunter, 7 Cranch 603, were both decided by Justice Storey upon the same principle; namely, that the badge of alienage was removed and the law of the state remained intact, and all who inherited in the state took under the terms of that law. The principle of the above cases is thus stated in the case of People v. Gerke, 5 Cal. 381, 384: "One of the arguments at bar against the extent of this power of treaty is that it permits the Federal Government to control the internal policy of the states, and in the present case, to alter materially the statute of distribution. "I think, however, that no such consequence follows as is insisted. The statutes of distribution are not altered or affected. Alienage is the subject of the treaty. This disability results from political reasons which arose at an early period of the history of civilization, and which the enlightened advancement of modern time and changes in the political and social condition of nations have rendered without force or consequence. The disability to succeed to property is alone removed. The character of the person is made politically to undergo a change, and then the statute of distribution is left to its full effect unaltered and unimpaired in word or sense." "If my conclusions about these cases be not correct, this anomaly is presented that the Supreme Court from Ware v. Hylton to Geofroy v. Riggs has decided uniformly that a treaty annulled state laws in conflict with it and yet has recently decided the cases of Compagnie Francaise v. The Board of Health, Rocca v. Thompson, Patsone v. Pennsylvania, and Heim v. McCall, sustaining the laws of States which conflicted with existing treaties between the United States and foreign countries. To adopt such a conclusion is to hold that the Supreme Court has reversed its position on this question. This I do not believe, but more rationally these later 89 decisions serve to interpret the earlier ones, making Henry St. George Tucker, Address before Georgia See also Tucker, Limitations on Treaty-making The case of Haunenstein v. Lynham, 100 U. S. 483, involves a treaty and a state law of Virginia. The Virginia law provided that an alien who, by treaty, had a right to sell real property in that state, might do so within the time prescribed by such treaty. No time was prescribed in the treaty, and the Virginia court held that the land escheated to the state. The Supreme Court of the United States held that a reasonable time was presumed, though no time was specified in the treaty. This does not present a case of conflict in any sense. The lower court, in deciding this case at bar and in holding that the treaty-making power could annul a trust held by the State for the benefit of all its people, and its reserved powers, cites the case of Hoke v. United States, 227 U. S. 321-322. That case in no manner involves a treaty and is a discussion of the powers of Congress over interstate commerce. Instead of being an authority in support of the contention of the lower court, its "foreshadowing" is in our favor to this extent: "It may be that Congress could not prohibit the manufacture of the article in a state. It may be that Congress could not prohibit in all of its conditions its sale within a state." Hoke v. United States, 227 U. S. 1. c. 322. The real basis of the opinion of the lower court holding that while the law would be unconstitutional if it stood alone, but was constitutional in that it was made in aid of a treaty, seems to be an opinion of a former Attorney-General of the United States, Mr. John W. Griggs (Vol. 22, Opinions of Attorney-General, p. 215 et seq.). 90 We do not doubt the power of the United States to make a treaty with Great Britain concerning regulations for the taking of fish or scals within waters or territory over which Great Britain and the United States under their Constitutions have power to make such regulations. That is a very different proposition from the one here involved; namely, the power of Congress to acquire by treaty the right to make rules and regulations for the taking of wild game within territory within which, under our Constitution, Congress has no right to regulate the taking of such game. In the language of United States v. DeWitt, 9 Wall. 41: "As a police regulation, relating exclusively to the internal trade of the states, it can only have effect where the legislative authority of Congress excludes, territorially, all state legislation, as, for example, in the District of Columbia. Within state limits, it can have no constitutional operation." When the Federal Government acts through its power to control commerce, its action is limited by the extent of its power under the Constitution. When the Federal Government acts under its treaty-making power, the binding effect of the things which it agrees to do is limited by its power under the Constitution to do those things. The power of the Federal Government to make treaties is exclusive and plenary, but the things which it can bind itself to do under a treaty are limited by the powers which it possesses under the Constitution and by any and all exceptions to its power specified in the Constitution. There is a difference between exclusive and full power to make treaties and the power to insert in the treaty terms and conditions which shall bind the United States to do any and every thing. The Government of the United States is one government, but that government does not possess the power to do any and every thing. There are some things which remain at the pleasure and will of the source of all power-the people. There are some things which the people never intended that the Federal Government should have the power to do. To give the Federal Government the power to do those things, by treaty, is to enlarge the jurisdiction of |