premacy of treaties solely, however, as a result of the nature of the relations between the federal government and those of the several States and their respective constitutions and laws, and wholly without regard to any of those elements of nationality and sovereignty with which Chief Justice Marshall and Justice Story clothed the United States Government. His views as to the supremacy of treaties are expressed as follows: Where two or more States form a common constitution and government, the authority of these, within the limits of the delegated powers, must, of necessity, be supreme, in reference to their respective separate constitutions and governments. Without this, there would be neither a common constitution and government, nor even a confederacy. The whole would be, in fact, a mere nullity. But this supremacy is not an absolute supremacy. It is limited in extent and degree. It does not extend beyond the delegated powers; -all others being reserved to the States and the people of the States. Beyond these the constitution is as destitute of authority, and as powerless as a blank piece of paper; and the measures of the government mere acts of assumption. And, hence, the supremacy of laws and treaties is expressly restricted to such as are made in pursuance of the constitution, or under the authority of the United States; which can, in no case, extend beyond the delegated powers. There is, indeed, no power of the government without restriction, not even that, which is called the discretionary power of Congress. I refer to the grant which authorizes it to pass laws to carry into effect the powers expressly vested in it, -or in the government of the United States, or in any of its departments, or officers. This power, comprehensive as it is, is, nevertheless, subject to two important restrictions; one, that the law must be necessary,—and the other, that it must be proper."

But even Mr. Calhoun was obliged to admit that an element of nationality resided in the United States, for although he declared that "the theory of nationality of the government is in fact founded on fiction," he was obliged in his argument to make this concession: "If the States are national $ 481. edited by Richard K. Cralle, New

1 Works of John C. Calhoun, York, 1888, vol. I, p. 252.

at all-or to express it more definitely-if they form a nation at all, it must be in reference to the delegated and not the reserved powers."

He then attempts to argue against this proposition on the ground that the two conditions of Federal and National Government cannot jointly exist, but we have seen that the whole basis of the Government of the United States is of a dual character, which makes it a federation as to internal matters and a nation as to external affairs. It is not necessary to go further into that element of this argument, as it has already been covered in the first chapter of this volume. § 482. Concluding remarks.-A point has been reached in the discussion of the treaty-making power of the United States, its extent and limitations, when this work must either be closed or new branches of the subject taken up, the treatment of which would materially extend these volumes in bulk, and indefinitely delay their publication. It has, therefore, been determined to postpone any further investigation until a later period and to offer to those who are interested in this subject, the result of the work which has occupied "a time and times and half a time" as the apocalyptic writers would have expressed the period of forty-two months which have been spent in preparing this work for publication, and which is now submited to the public with a sense of its many shortcomings and incompleteness, but with the hope that it may receive a favorable reception and be of some service to those who are interested in this subject. Since the summer of 1898, when the idea was first conceived of writing this book, many things have occurred; much history has been written. The questions whether or not, and on what terms, the United States could acquire and govern territory not only became practical questions, but were in many of their phases practically answered by the negotiation, conclusion and ratification of the treaty of Paris, and by the decisions of the Supreme Court in the Insular cases. The status of Cuba and its relations to this country have in many ways been established by the Platt amendment and the adoption of the Constitution in that country and the decision of the Supreme Court in Neely v. Henkel. Questions regarding the rights and duties of this country

in regard to the Clayton-Bulwer treaty were rendered obsolete by the conclusion and ratification of the Hay-Pauncefote treaty by which it has been satisfactorily abrogated and superseded.

Many other changes have occurred. This book owed its inception largely to kindly inspiration of a man for whom the author can only faintly express the high feeling and regard which he always entertained for him as citizen, legislator and President-William McKinley of whom it may indeed be said that the country is greater for the way in which he lived and better for the way in which he died. And surely it was not by mere chance that on the day before the assassin's bullet ended his career, Mr. McKinley delivered the Buffalo speech in which he outlined the policy, the execution of which his able successor accepted as a sacred trust and which the people know that he will adhere to.

Not only in this country has the hand of death changed the personalty of the executive. As England mourned with us for the untimely death of our noble President, so we but little more than half a year previous thereto mourned with her for the loss of her Queen, who had reigned for more than sixty years, and of whom the highest praise must be condensed into the few words that she was not only a good queen but a good woman in the highest sense of both of those words.

President McKinley well knew the great extent of the treaty-making power and its importance to the welfare of this country, and it was in earnest truth that he declared that "God and man have linked the nations together," and that "The period of exclusiveness is past. The expansion of our trade and commerce is the pressing problem. Commercial wars are unprofitable. A policy of good will and friendly trade relations will prevent reprisals. Reciprocity treaties are in harmony with the spirit of the times; measures of retaliation are not." It is only through the treatymaking power that the greatest results for our foreign trade have been and can be attained. It is due to the far-seeing ability of those few men who met in 1787 in Philadelphia and framed our Constitution that the treaty-making power has been so securely and exclusively vested in the Central

Government that the greatest benefits to the entire country can be secured through it, and this volume cannot be more fittingly closed than by again referring to the words of Joseph Story, that had the framers of the Constitution done nothing else than to securely vest the treaty-making power in the Central Government, they would been entitled to immortality, and to the unending gratitude of the American people.

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ADDITIONAL EXTRADITION CASES.

In re Dugan, U. S. Dist. Ct. Mass. 1874, 2 Lowell, 367, Fed. Cas. 4120, LOWELL, J. Person extradited under treaty with Great Britain, 1842, need not be confronted with witnesses; prisoner remanded.

In re Heilbronn, U. S. Dist. Ct. S. D. N. Y. 1854, Fed. Cas. 6323, INGERSOLL, J. Sufficiency of evidence; prisoner remanded.

In re Peter Kelley, U. S. Dist. Ct. Mass. 1874, 2 Lowell, 339, Fed. Cas. 7655, LOWELL, J. Power of judiciary to issue warrant without application to executive. What crimes covered by treaty; prisoner discharged.

Lascelles vs. Georgia, U. S. Sup. Ct. 1893, 148 U. S. 537, JACKSON, J. Affects state rendition; authorities and laws cited.

ADDITIONAL FRENCH SPOLIATION CASES.

Blagge vs. Balch, (also Brooks vs. Codman and Foote vs. Woman's Board of Missions decided at same time) U. S. Sup. Ct. 1896, 162 U. S. 439, FULLER, J. Payments to next of kin of bankrupts and not to assignees under act of March 3, 1891 (26 Stat. 908) brought the French Spoliation payments in the "category of payment by way of gratuity and grace, and not as of right and against the government."

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