person, or class of persons, whom it might deem dangerous to its peace, or likely to produce a physical or moral evil among its citizens, then any treaty or law of Congress invading this right, and authorizing the introduction of any person or description of persons against the consent of the State, would be an usurpation of power which this court could neither recognize nor enforce. I had supposed this question not now open to dispute." 2 § 470. Both of above opinions obiter; no specific treaties involved. No particular treaty was under consideration in either of these cases; in both cases the question was whether or not general treaty relations of the United States with foreign powers, granting to their respective citizens reciprocal privileges of immigration, travel and right to carry on business in the territory of the other, prevented the States from imposing restrictions in the way of passenger taxes and license fees which would interfere with the treaty rights of aliens. The court held, as expressed in the above quoted opinions, that no treaty stipulation existed which would be a bar to the action. As the cases were decided on entirely different points, the remarks are to a great extent obiter, and as no particular treaty was involved, and no treaty was declared void, they cannot be considered as expressing the opinion of the court to any further extent than as a general declaration that there must be some limitation to the proper exercise of the treaty-making power, but that such limitations cannot be defined until the occasion arises for doing so in regard to some specified treaty which has overstepped those limitations. § 471. Justice Swayne's earlier views expressed at Circuit. -An opinion rendered by Mr. Justice Swayne in 1866,1 while sitting as a Circuit Justice, has been cited on the limitation side of the question; in this he said that "a treaty is declared by the Constitution to be the law of the land," but 2 The Chief Justice then cites: Holmes vs. Jennison, U. S. Sup. Ct. 1840, 14 Peters, 540. Groves vs. Slaughter, U. S. Sup. Ct. 1841, 15 Peters, 449, MCLEAN, J. Prigg vs. Pennsylvania, U. S. Sup. Ct. 1842, 16 Peters, 539, STO- § 471. 1 United States vs. Rhodes, U. S. Cir. Ct. 1866, 1 Abb. U. S. Rep. 28, at p. 43, Swayne, J. adds, "What is unwarranted or forbidden by the Constitution can no more be done in one way than in another. The authority of the National Government is limited, though supreme in its sphere of operation. As compared with the State governments, the subjects upon which it operates are few in number. Its objects are all national. It is one wholly of delegated powers. The States possess all which they have not surrendered; the government of the Union only such as the Constitution has given it, expressly or incidentally, and by reasonable intendment. Whenever an act of that government is challenged, a grant of power must be shown or the act is void." A number of treaty instances are then referred to in which Indians, colored persons and inhabitants of other countries are made citizens of the United States. All of these remarks, however, are preceded by the sentence: "These powers are not involved in the question before us, and it is not necessary, particularly to consider them "—thus showing that the whole matter was purely obiter so far as that case was concerned. M § 472. Justice Swayne's later views expressed in the Supreme Court; Hauenstein vs. Lynham; The Cherokee Tobacco. Mr. Justice Swayne's thoroughly considered and authoritative opinion in regard to the treaty-making power, when the matter was squarely before the court has been particularly referred to in a previous chapter, in which his decision in the case of Hauenstein vs. Lynham, decided in 1879 is discussed at length. Mr. Justice Swayne also elsewhere expressed his views on this question 2 declaring that "it need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument." Undoubtedly there are cases in which it has been held that treaties could not provide for anything to be done which would be in direct violation of the Constitution. In the case last cited, however, the question involved was the relative weight of treaties and acts of Congress, and which of the two § 472. 1 Hauenstein vs. Lynham, U. S. Sup. Ct. 1879, 100 U. S. 483, SWAYNE, J., and see extracts from opinion in § 334 of chap. XI, p. 20, ante. 2 The Cherokee Tobacco, U. S. Sup. Ct. 1870, 11 Wallace, 616, SWAYNE, J., and see § 378, p. 84, ante. should supersede the other in case of conflict; no questions were raised on the record as to the right of the United States to make the treaty under consideration. § 473. Justice McLean's views in Lattimer vs. Poteet.Mr. Justice McLean, in construing a certain clause in a treaty made with the Cherokee Indians relating to territory entirely within the domain of one of the States, said that the case involved the power of the United States to vary private rights by treaty. He declared that it could not be denied "that the parties to a treaty are competent to determine any disputes respecting its limits." Continuing he said: "It is a sound principle of national law, and applies to the treatymaking power of this government, whether exercised with a foreign nation or an Indian tribe, that all questions of disputed boundaries may be settled by the parties to the treaty. And to the exercise of these high functions by the government within its constitutional powers, neither the rights of a state nor those of an individual can be interposed."1 The views of Chancellor Kent 2 and Justice Field have already been referred to.3 § 474. Northeastern boundary controversy; views of Daniel Webster and Chancellor Kent.-In 1842 the dispute1 § 473. 1 Lattimer vs. Poteet, U. S. Sup. Ct. 1840, 14 Peters, 4, MCLEAN, J. 2§ 272, p. 411, vol. I. Ct. 1890, 133 U. S. 258, FIELD, J., and extracts from opinions in § 335, p. 23, ante. For a comparison of views of Chancellor Kent and Jus See Geofroy vs. Riggs, U. S. Sup. tice Field see § 426, p. 239, ante. § 474. 1 NOTE ON SETTLEMENT OF BOUNDARY DISPUTES WITH GREAT RRITAIN. The entire northern boundary of the United States has been the subject of controversy between this country and Great Britain, since 1783. This was the natural result of the boundaries having been fixed originally without actual survey. There have been several arbitrations, numerous boundary commissions, and not less than eleven treaties amongst them (exclusive of those relating to Alaska boundary): the Provisional Articles of 1782 (U. S. Tr. and Con. 1889, p. 370); Definitive Treaty of Peace, 1783 (Id., p. 375); Jay Treaty of 1794 (Id., p. 379, and see p. 382, as to St. Croix River); Explanatory Articles, 1798, as to River St. Croix (Id., p. 396); Treaty of Ghent, 1814 (Id., p. 399); (for Declarations of Commissioners thereunder as to the boundaries, see Id., pp. 405, et seq.); Fisheries and Boundaries, 1818 (Id., p. 415, for art. II, relating to Northwest boundary of Lake of Woods to Stony [Rocky] between this country and Great Britain over the northeastern boundary reached a very acute condition. Both counMountains, see p. 416, and for art. III as to joint occupation of disputed territory west of Mountains to Pacific, see pp. 416-417); Continuing joint occupation west of Rocky Mountains, 1827 (Id., p. 426); Submitting Northeastern boundary to arbitration, 1827 (Id., p. 429); WebsterAshburton treaty of 1842, settling Northeastern boundary (Id., p. 432); Buchanan-Pakenham treaty of 1846, adjusting northwestern boundary (Id., p. 438); Treaty of Washington, 1871, referring disputed points in last mentioned treaty to arbitration (Id., p. 478). See Wharton's Int. Law Digest, Vol. II, §§ 150, et seq. It will thus be seen that from 1782 to 1842 efforts had been made to properly delimitate the northeastern boundary. The arbitration of 1827 had been unsatisfactory to both countries and matters reached a crisis in 1842. Lord Ashburton then came to the United States and a treaty was prepared which has ever since been known as the WebsterAshburton treaty. Articles I and II fixed a line which has ever since been recognized as the boundary between this country and Great Britain from the Atlantic ocean to the Rocky Mountains. No cession was actually made as the territory through which the northeastern boundary ran was described as "disputed territory." Articles IV and V of the treaty (U. S. Tr. and Con. 1889, p. 435, U. S. Treaties in Force, 1889, p. 228), are as follows: ARTICLE IV. All grants of land heretofore made by either party, within the limits Grants of land, &c., of the territory which by this treaty falls within the within the territory. dominions of the other party, shall be held valid, ratified, and confirmed to the persons in possession under such grants, to the same extent as if such territory had by this treaty fallen within the dominions of the party by whom such grants were made; and all equitable possessory claims, arising from a possession and improvement of any lot or parcel of land by the person actually in possession, or by those under whom such person claims, for more than six years before the date of this treaty, shall, in like manner, be deemed valid, and be confirmed and quieted by a release to the person entitled thereto, of the title to such lot or parcel of land, so described as best to include the improvements made thereon; and in all other respects the two contracting parties agree to deal upon the most liberal principles of equity with the settlers actually dwelling upon the territory falling to them, respectively, which has heretofore been in dispute between them. ARTICLE V. Whereas in the course of the controversy respecting the disputed territory on the northeastern boundary, some moneys Distribution of the have been received by the authorities of Her Britan- "disputed territory fund." nic Majesty's province of New Brunswick, with the intention of preventing depredations on the forests of the said territory, tries made claims to a large extent of territory and some adjustment had to be arrived at in order to prevent actual which moneys were to be carried to a fund called the 'disputed territory fund,' the proceeds whereof it was agreed should be hereafter paid over to the parties interested, in the proportions to be determined by a final settlement of boundaries, it is hereby agreed that a correct account of all receipts and payments on the said fund shall be delivered to the Government of the United States within six months after the ratification of this treaty; and the proportion of the amount due thereon to the State of Maine and Massachusetts, and any bonds or securities appertaining thereto shall be paid and delivered over to the Government of the United States; and the Government of the United States agrees to receive for the use of, and pay over to, the States of Maine and Massachusetts, their respective portions of said fund, and further, to pay and satisfy said States, respectively, for all claims for expenses incurred by them in protecting the said heretofore disputed territory and making a survey thereof in 1838; the Government of the United States agreeing with the States of Maine and Massachusetts to pay them the further sum of three hundred thousand dollars, in equal moieties, on account of their assent to the line of boundary described in this treaty, and in consideration of the conditions and equivalents received therefor from the Government of Her Britannic Majesty." The Northeastern boundary dispute was the subject of a great deal of Congressional, and other, debate, and many reports and books were published thereon, amongst them (taken from Poor's Index of Documents): Message on Relations with Great Britain. President Martin Van Buren. Feb. 9, 1839, Ex. Docs., No. 181, 25th Cong., 3d sess., Vol. IV. 136 pp., 8vo. Transmitting report of the Secretary of State, and accompanying correspondence, on the subject of the territorial relations of the United States and Great Britain, questions as to boundaries, neutrality, etc. Report on Northeastern Boundary. Foreign Relations Committee. Feb. 28, 1839, Senate Docs., No. 272, 25th Cong., 3d sess., Vol. IV., 2 pp., 8vo. Recommends adoption of resolutions denying the existence of any agreement that the territory in dispute on the northeastern boundary shall be placed under the jurisdiction of the British Government until the final settlement of the boundary question, and asserting that if the British Government shall attempt by military force to assume jurisdiction over this territory the exigency will have occurred rendering it the duty of the President to call forth the militia for the purpose of repelling such an invasion. The Northeastern Boundary. Albert Gallatin, 1840. Published by Samuel Adams, New York, 179 pp., with 8 maps. The right of the United States to the northeastern boundary claimed by them under the treaty of 1783. Message on the Northeastern Boundary. President Martin Van |