cases merely because it may be susceptible to abuse, and if abused may lead to mischievous consequences. This argument is often used in popular debate, and in its common aspect addresses itself so much to popular fears and prejudices that it insensibly acquires a weight in the public mind to which it is in no wise entitled. The argument ab inconvi enti is sufficiently open to question from the laxity of application as well as the opinion principle to which it leads. But the argument from a possible abuse of a power against its existence or use is in its nature not only perilous, but in respect to governments would shake their very foundation. Every power, however limited, as well as broad, is in its own nature susceptible of abuse. No Constitution can provide perfect guards against it. Confidence must be reposed somewhere, and in free governments the ordinary securities against abuse are found in the responsibility of rulers to the people, and in the just exercise of their elective franchise, and ultimately in the sovereign power of change belonging to them in cases requiring extraordinary remedies."

§ 480. John Randolph Tucker's views on the limitation of the treaty-making power.-Views have, however, been expressed sustaining a narrower construction of the Constitution, and closer limitations on the treaty-making power. The author quotes, but does not endorse them. Some of John Randolph Tucker's views on the limitations of the treaty-making power have already been quoted;1 one further quotation from his recently published work on the Constitution will be given at this point. He declares a great question has arisen whether the exclusive power of treatymaking vested in the President and Senate is unlimited in its operation upon all the objects for which a treaty may provide. Continuing he says: "Can a treaty by compact with a foreign nation bind all of the departments of our own government as to matters fully confided to them; can it surrender or by agreement nullify the securities for personal liberty engrafted upon the Constitution itself; can it § 480. the United States, vol. II, § 354, pp. 723 et seq.

1 See § 16, p. 32, Vol. I.

2 Tucker on the Constitution of

cede to a foreign power a State of the Union or any part of its territory without its consent; can it regulate commerce with foreign nations in spite of the power of Congress to regulate commerce with them; can it provide for the rates of duty to be imposed upon certain articles imported from foreign nations, or admit them free of duty, in the face of the power given to Congress to lay and collect taxes and duties; can a treaty appropriate money from the public treasury and withdraw it without the action of Congress; can a treaty dispose of any part of the territory of the United States, or any of their property, without the consent of Congress, which alone has power to dispose of and make rules and regulations concerning the territory and other property of the United States? These important questions have several times arisen for discussion in our history, and upon them authoritative decisions have been made by other departments of the government, which are based upon solid reason and sound principles of constitutional construction.

"It cannot be denied that very many of these questions must be answered in the negative, or the consequence would be that, under the treaty-making power, the President and Senate might absorb all the powers of the government. In favor of the extreme claim of power for the President and Senate, it has been urged that a contract between the United States and a foreign nation must be conclusive against all departments of the government, because it is a contract; but the answer to this contention is obvious and conclusive. It involves the petitio principii, by assuming that the contract is complete though it trenches upon the power of the other departments of the government, without their consent. And if it be further urged that foreign nations know no party in the contract on the part of the United States except the President and Senate, the answer is equally conclusive that if our Constitution requires the consent of the departments to a treaty of the nature referred to, the foreign nation is bound to take notice of that fact, and cannot claim a completed obligation, in the absence of the consent of the other departments. The maxim upon this subject is familiar: qui cum alia contrahit vel est, vel debet esse, non ignarus conditionis ejus. And if it be further urged that this is too refined

a doctrine to regulate our delicate relations with foreign powers, the answer is that the treaty-making power of the Crown of Great Britain, where it involves a concession of the clear and absolute power of Parliament, has never been recognized as valid by the English Government, and has never been enforced. The Queen may make a treaty to pay ten millions of dollars to the French government, but unless Parliament appropriates the money the treaty will be ineffectual. It is from the fundamental laws of each State that we must learn where resides the authority that is capable of contracting with validity in the name of a State.'4

"A treaty, therefore, cannot take away essential liberties secured by the Constitution to the people. A treaty cannot bind the United States to do what their Constitution forbids them to do. We may suggest a further limitation: a treaty cannot compel any department of the government to do what the Constitution submits to its exclusive and absolute will."

§ 481. John C. Calhoun's views on the treaty-making power, and his forced admission of nationality of Central Government. Mr. Tucker's views were largely based on the views held and expressed by his distinguished ancestors and by Mr. John C. Calhoun, the acknowledged eminent leader of the State's Rights School and of the narrow constructionists of the Constitution during the ante-bellum period. In bis Discourse on the Constitution and Government of the United States, Mr. Calhoun says, in regard to Article VI of the Constitution making laws and treaties of the United States the supreme law of the land, that while the clause was declaratory it vested no new powers whatever in the Government or in any one of its departments; that without that clause the Constitution and the laws made in pursuance of it, and the treaties made under its authority, would have been the supreme law of the land as fully as they now are, and the judges in every State would have been bound thereby, anything in the Constitution or the laws of the State to the contrary notwithstanding. He bases the su8 Citing Wharton's Int. Law Di- Citing Vattel, Bk. II, S. 154. gest, 457, also 1 Mahon's History of England, p. 20.

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