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the recognition of the fact that this Government differs from thosc of the old world, and that we are here charged with the duty under our system of government of developing the maximum of freedom in thought, in speech, and in action in every citizen consistent with thc same right in every other American citizen under a written constitution. Nor must we be led into error by assuming that what can be done by Great Britain or Germany or any of the great powers of the world can and should bc dunc by us. Our Government has no parallel among the nations of the world. Our constitutional form of governincnt, dual in character, recognizing the States and the Federal government as joint instruments in the development of all governmental powers, some of which are coinmitted to thic one and some to the other, each supreme in its sphere, cach powerless in that of the other, is difficult of interpretation and uniquc among the nations of the earth.

By a critical cxamination of the provisions of the Constitution of the United States; in the interpretation thereof by the early and modern statesmen of the country; in the opinions of judges, State and Federal; and in the adjudicated cases in their bearing upon this question, we shall hope to climinate the prevalent error of the “unlimited" and boundless scope of this power and establish what are the reasonable and constitutionnl * “limitations on the treaty-pnking power" under the Constitution of the United States.

CHAPTER I

Views AND OPINIONS OF AUTHORS AND STATESMEN ON THE

TREATY POWER OF THE CONSTITUTION FROM OUR EARLY
IlISTORY TO TUE PRESENT TIME

§ 2. As preliininary to our discussion, it will be proper and profitable to present the vicws of statesmen and public mcn on discrcnt phases of this question, as expressed by them in public speeches, on the floor of Congress, or in works devoted to the discussion of constitutional questions. The true vicw of any question must exist independently of the convictions of any one man or sct of men, but where many, who from their public experience, ability, and study, concur in one judgment as touching a subject, it must be admitted as a strong prestumption in favor of the correctness of that view. With this end in vicw, it is proposed to cite the opinions of statesinen from the foundation of the Government down to the present time, in order to see whether there is n common ground in their expressed views which may be accepted if not as conclusive, nt least as strongly persuasive of its correctness.

$ 3. Mr. Calhoun stands primus inter parcs among thosc who have been called upon to construe the Constitution of the United States. Jlis power of analysis, his intense carnestness, and his bighi personal character, point to him as one of the greatest of American statesınen.

In one placc hic says:

“Although the trenty-making power is exclusively vested and without cnumeration or specification, in the Governinent

I "Discourso on the Constitution and Govornmont of tbo United States," Vol. I, p. 203.

OPINIONS OF AUTHORS AND STATESMEN

$$ 3-4

of the United States, it is, nevertheless, subject to several iinportant limitations. It is, in the first place, strictly limited to questions inter alios; that is, to questions between us and forcign powers which require negotiation to adjust them. All such clcarly appcrtain to it. But to cxtend it beyond these, be the pretext what it inay, would be to extend it beyond tlie allotted sphere, nnd thus a palpable violation of the Constitution. It is, in the next placc, limited by all the provisions of the Constitution which inhibit certain acts from being donc by the Government, or any of its departments; of which description there are many. It is also limited by such provisions of the Constitution as direct certain acts to be donc įn a particular way, and which prohibit the contrary, of which a striking cxainplc is to be found in that which declares that no money shall be drawn from thc l'rcasury but in conscqucnce of appropriations to be made by law.' This not only imposcs an important restriction on the power, but gives to Congress as the law making power, and to the Ilouse of Representatives as n portion of Congress, thic right to withhold appropriations; * and, thereby, an important control over the trcaty-making power, whenever money is rcquirce to carry a treaty into effect; which is usually the case, especially in reference to those of much importance.

"There still remains another and more important limitation, but of n more general and indefinite character. It can enter into no stipulation calculated to change the character of the Government; or to do that which can only be done by the Constitution-making power; or which is inconsistent with thc nature and structurc of the Governinent or the objects for which it was formcı. Among which, it sccins to be settire that it cannot change or alter the boundary of a State or ccde any portion of its territory without its conscnt. Within tliesc limits al questions which inny nrisc between us and other powers, be the subject matter what it may, fall within the limits of the treaty-making power and may be adjusted by it."

§ 4. Judge St. George Tucker presents his views of the trcaty-making power as follows: 1

"In our constitution, there is no restriction as to the subjects of treaties, unless perhaps the guarantec of a republican form of government, and of protection from invasion, containcd

1 Tuoker's Blackstono, Vol. I, Appendix, 333.

LIMITATIONS ON TIIE TREATY-MAKING POWER

in the fourth article, mny bc construed to imposc such a rcstriction, in behalf of the several states, against the disincinberment of the federal republic. But whether this restriction may extend to prevent the alienation by cession, of the western territory, not being a part of any state, may be somewhat morc doubtsul. The act of cession from Virginia militates, expressly, against such an alienation of that part of the western territory which was ccler by this state. Nevertheless, it is said to have been in contemplation soon after the establishment of the falcral government, to code the right of pre-emption to the lands in that territory to the Indians, who were then supposed to be in treaty for the same with the crown of Great Britain. The president, who had not authorised any such article, and who is said to have disapproved of it, in submitting the treaty to the consideration of the scuinte, called their attention particularly to that part of it; in consequence of which it was rejected, though warmly supported in the senate, as has been said. If the power of making such a dismemberment be questionable at any rate, it is much more so, when it is recollcrted, thnt the constitution seems to have vested congress collectively, and not any one or two branches of it only, with the power to dispose of that territory: The effect of this extraordinary treaty, if it had been ratified by the senate and the president, may casily bc conceived. Great Britain, at that time not a little disposed to enmity towards the Uniterl Statcs, would no doubt havc insisted upon such an acquisition of territory, made under the faith of a trcaty between the Unital States and the Indinns; and thus the United Stntes might cither have been deprived of thcir territory by an unconstitutional treaty, or involved in a war for its preservation, by the proceedings of a boily, whose authority does not extend to a final decision upon a question, whether war bc ncccssary and experient. This shews the collision which may possibly urise between the several branches of the congress, in conscquence of this modification of the treaty-making power. For, lacing ontrusted to a branch of the congress only, without the possibility of control or check by the other branch, so far als respects the conclusion and ratification of any treaty whatsoever, it may well happeni, nt some time or other, thint the president and scratc mny overstop the limits of their just authority,

IC. U. S. Art. 1, $ 1.

· L. V. Edi. 1704. C. 40. *C. U. S. Art. 4, 83.

OPINIONS OF AUTIONS AND STATESMEN

and the house of representatives bc so tenacious of their own constitutional rights, as not to yield to the obligations imposcul upon them by a treaty, the terms of which they do not approve."

Ilc further says:

“But, to return to the treaty-making-power; it appears to be somewhat extraordinary, that that branch of the federal government, who are by the constitution required to concur, in a lcclaration of war, before any such dcclaration can be made, should be wholly precluded from voting at all, upon a question of peace. ... They are judges of the causes of war; of the existence of those causes; of the resources, and ability of the states to prosecute and support a war; of the expediency of applying those resources to the obtnining redress, or satisfaction for the injury reccive; in short, of cvery possible circumstance that can induce the nation to incur thc hazard, or expence of a war: and yet, if through timidity, venality, or corruption, the president, and two thirds of n majority of thc scnatc can be prevailed upou to relinquislı the prosecution of the war, and conclude a treaty, thic house of representatives have not power to prcvcnt, or retard the measure; although it should appear to them, that thc object for which the war hath been undertaken, hath not been attained, and that it was neither rclinquished from necessity, or inability to prosccutc it, with cscct.

“These objections are not intendeel to extend to the agency which the president and senate may have in the formation of a treaty; nor to the principle that treatics with foreign nations should be regarded as a part of the supreme Inw of the land.

The honour and peace of the nation certainly require that its compacts should be duly obscrvod, and carried into cffect with perfect good faith. And though it may be the result of sound discretion to confide thic forination of a treaty, in the first instance, to the president and seninte, only; vrt the safety of the nation seems to require that the final ratification of any compact, which is to form a part of the supreme law of thic land, shoulel, as well as other Inws of the fecleral government, depend upon the concurrent opprobation of cvery branch of the congress, before they acquire such a sanction as to become irrevocable, without the consent of a forcign nation; or without hazarding an imputation ngninst the honour and faith of the nation, in the performance of its contracts. 1 Tuckor's Blackstone, Vol. I, Appondix, 338.

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