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LIMITATIONS ON TUE TREATY-MAKING TOWER
content myself with simply giving a reference to the authorities in a note on this subject.'
$ 376. V. “l'ersonal and property rights of every kind and description may be the subject of treaties. Whenever the control or protection of such rights is, under the Constitution, confided to any department of the government or to a State, such department or State, as the constitutional repository of such rights, cannot be ousted of their jurisdiction by having tlic same transferred to the treaty-inaking power.” Rights confided to certain departments of the Government have been considered under 111, $ 373, so that this division relates to the police power and the reserved rights of the States, and has been heretoforc considered fully.?
$ 377. VI. "That the treaty power cannot confer greater rights upon foreigners than are accorded citizens of the United States under the Constitution.” This proposition would secm to be self-evident from the very nature and object of governments, and therefore, needs no discussion.
$ 378. If it be urged that these limitations upon the treaty power, though admitted to be in accordance with a correct constitutional interpretation of that power, so restrict the power ns to render it valueless as a ne.rus between the United States and foreign powers in the adjustincnt of international rights, the answer is simple. Constitutions are madc to mect the demands and requirements of the people who makc them and live under thein, and whenever a constitution is inadequate to mcet such nccols, it is only proper that it be changed or amended. Yct, in proposing amendments to our Constitution that has
· Story, "Constitution," $ 1508.
Willoughby, "Constitution," p. 193.
proven itself cqual to all emergencies in our history, care should be had that no fundamental granitic principle upon wliich the Government has rcstcd securely since its foundation, should be disturbed. But, if it be found that some stone of the superstructure was originally improperly placed, or, if properly laid, has become worn by abuse or corrorled by occult processes, unforeseen by the student of governmental architecture in its building, surcly the hand will not be deemed impious that is listed to arljust thc misplaced stonc, or that sccks with loving touch to apply some life-giving lotion to the wasted portion of this "Ark of the Covenant" of our hopes and aspirations. The Constitution has proven adequate for the development of an infant republic, as well as for the progress of a matured nation; it has weathered the storm of Civil War and its attendant cvils, and we should be careful, therefore, that the changes suggested should not be organic, but functional; not fundamental, but structural. If the limitations suggested are cvils, and they are upheld by the Constitution, then the Constitution should be changed unless, indeed, such changes should result in the organic and fundamental change of our whole government. We can well asford to follow President Washington on this subject when he says:
“If, in the opinion of the people, the distribution of the constitutional powers be in any particular wrong, Ict it be corrected in the wny which the Constitution designates. But Ict there be no change by usurpation, for this, though it may in one instance be the instrument of gooi, is the ordinary weapon by which free governments are destroyed.”
No less suggestive is the language of l’resident Lincoln:
“It is my duty and my onth to muintnin inviolnte the right of the States to order and control, under the Constitution, thcir own Affairs by their own judgment exclusively. Such maintenance is essential for the preservation of that balance of power on which our institutions rest."
$ 379. Let us not, therefore, be guilty of committing wrong that good may come of it. If it be argued that no restriction
LIMITATIONS ON TIIE TREATY-MAKING POWER
of this power is compatible with national existence and national obligntions, in the criscs which arise in the history of every country, I would answer in the impressive language of Justice David Davis spoken at a inost critical period of our country's existence, when, coinbating the claim that the exigencies of the times following the Civil War demanded a broader construction of the Constitution, he said:
"No doctrine involving more pernicious consequences was ever invented by the wit of man, than that any of its provisions can be suspended during any of the great cxigencics of government. Such a doctrine leads directly to anarchy or despotism ; but the thcory of necessity on which it is based is false; for the government within the Constitution has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the results of the great effort to throw off its just authority.”
The settlement of America was for the avowed purpose of developing the two great principles of civil and religious liberty under republican institutions, freed from the restraint of inonarchical ideas. Our fathers brought with them the Christian rcligion as thcir religion, which has spread its benign influence from ocean to occan in its teachings of high idcals and in the diffusion of the soundest principles of morality and virtuc. Under thcsc teachings "might” docs not make "right,” but governmental action must be sanctioned by moral principles, Iluman laws and constitutions should be controlled by them, for these are made and ratificd as the security for human lih erty. To disregard the Constitution under the plea of supposed necessity, is to adopt the specious plca of tyrants in all ages. To abandon our Constitutional Government and supplant it with the flceting suggestion of some supposed temporary necessity, is to deny that this is a government of Inw, and to accept tho fallacy that it is a government of men. Should we be guilty of such folly there will most surely arise in the ncar future some
· Er Parlc Milligan, 4 Wall. 109, 18 L. od. 281.
Poct-statesman who will depict the moral delinquency of our generation in flowing versc similar in sentiment to that recorded by the ancient Latin poct, who, in describing thc cthics of the Eternal City in his day, in the advice of a father to his son, said: Rem facias, rem, si possis recte; si non, quocunque modo rem.”