47 right of the State to regulate the ownership, transmission and inheritance of property within its limits. An historical view of the many cases bearing upon this point shows that in the days of Marshall 48 and since the Civil War 19 the Supreme Court has uniformly and in no uncertain voice sustained the treaty power as against alleged States "residual" powers. Only during the period preceding the Civil War was there a wavering, even then confined to dicta.50 Statesmen and text writers with few exceptions have taken a similar attitude in support of a broad treaty power.51 47 Ware v. Hylton, 3 Dall. 199 (1796); Prevost v. Greenaux, 10 How. 1 (1856); Fredrickson v. La., 23 How. 443 (1860); Hauenstein v. Lynham, 100 U. S. 483 (1870); Wynans, Petitioner, 191 Mass. 276; People v. Gerke, 5 Cal. 381 (1885). 48 Fairfax v. Hunter, 7 Cr. 603 (1813); Chirac v. Chirac, 2 Wheat. 259 (1817). 49 Hauenstein v. Lynham, 100 U. S. 483 (1879); Geofroy v. Riggs, 133 U. S. 258 (1890). 50 Supra, note 43. 51 For supremacy of treaty power over State powers: Anderson, C. P., this JOURNAL, 1: 636. Burr, The Treaty Making Power of the United States, 1912; Proc. Am. Phil. Butler, The Treaty Making Power of the United States, 1902. Calhoun, Discourse, Works, ed., 1853, 1: 202; Elliot's Debates, 4: 463. Corwin, National Supremacy, 1913. Crandall, Treaties, their Making and Enforcement, 1916; 1st ed. Columbia Devlin, The Treaty Power under the Constitution of the United States, Elliot, E. C., "The Treaty Making Power, with Reference to the Reserved Hall, J. P., State Interference with the Enforcement of Treaties, Proc. Livingston, Sec. of State, Wharton, 2: 67. Moore, J. B., Pol. Sci. Quar. 32: 320. Pomeroy, An Introduction to the Constitutional Law of the United States, 10th ed., 1888, sec. 674. Root, this JOURNAL, 1: 273. Story, Commentaries on the Constitution, sec. 1841. Willoughby, W. W., The Constitutional Law of the United States, vol. 2, 1910, sec. 210, 215. As a principle. of constitutional interpretation, the argument from the Tenth Amendment for a limitation of the treaty power by the "residual," or by the "reserved," rights of the States can not be admitted. This provision does not limit the treaty-making power, because the Constitution has "delegated" the treaty power in its entirety to the "United States" in the words 52 (The President) shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." Hence no specific delegation of the subject-matter is needed. If the subject is one appropriate for international negotiation, it is within the "authority of the United States" to conclude a treaty thereon. In this connection, it should be emphasized that treaty making is specifically prohibited by the Constitution to the States.58 Hence, if a field appropriate for treaty making is denied the national treaty-making power, an important governmental power is lacking in the American state.54 An analogy between the national treaty power and the national legislative power can not be assumed, because with the latter State legislative power covers the residuum not given the national government, but there is no State treaty power.55 The national treaty power, both in practice 56 and theory,57 covers a wider range of subjects than the power of Congress. Against supremacy of treaty power over State powers: Hayden, Am. Hist. Rev., 22: 566, takes a historical view showing that the political check has sometimes preserved States' rights from adverse treaties. Jefferson, Manual of Parliamentary Practice, sec. 52. Mikell, University of Pa. Law. Rev., 57: 435, 528. Tucker, H. St. G., Limitations on the Treaty Making Power under the Constitution of the United States, Boston, 1915. 52 Art. II, sec. 2, cl. 2. 53 Art. I, sec. 10, cl. 1. In reference to Art. 1, sec. 10, cl. 3, see supra, note 22. 54 Cushing, Att. Gen., 8 Op. 411; Anderson, this JOURNAL, 1: 665; Corwin, op. cit., p. 163. 55 As there is in Germany and Switzerland. 56 Treaty guarantees of property rights of aliens within the States have been common since the first treaty of the United States in 1778 (Art. ix), though the matter is beyond the competence of Congress. Trade mark protection is within the treaty power (Moore, 2: 36-42), though not within the independent power of Congress. (The Trade Mark Cases, 100 U. S. 82, 1879.) 57 Secretary Root emphasized this when he suggested that there is a differ The immunity from treaty interference of certain State powers can only be sustained by showing that they cover a subject-matter inherently inappropriate for treaty negotiation. That there are matters within State legislative competence thus excluded from treaty making is doubtless true. If a treaty were used as a subterfuge for tampering with the political or territorial autonomy of a State, or for wresting from it that control over its natural resources, public services, and the social and economic environment of its people, necessary to insure internal order and progress, undoubtedly the courts could declare it void as not really a treaty at all.58 As a matter of political expediency, an even wider respect for State autonomy may be appropriate, and it was thus to safeguard the interests of the States that the Senate was made such an important element in treaty making.59 This function the Senate has recognized, and, especially in the period before the Civil War, frequently exercised a veto upon treaties thought to violate States' rights, or redrafted them so as to permit of State consent before the treaty became effective within its territory.60 It thus appears that States' reserved and residual powers oppose no legal bar to negotiation and contraction of obligations on any subject appropriate for treaty making, though the treaty-making power itself may regard it as advisable to consider the susceptibilities ence between the treaty-power and the legislative powers of the national government, with reference to State power, on account of the fact that the States have no treaty power. (This JOURNAL, 1:278.) Mr. Corwin has strangely misunderstood this remark, saying, "This, of course, is error. There are no reserved powers of the States' against any power of the United States." Secretary Root referred to the subject-matter covered respectively by the two powers. Mr. Corwin interprets him as referring to the nature of the limitation. Neither are limited by any "reserved States rights," it is true, but there is a wide subjectmatter, as, for instance, the property and personal rights of aliens within the States, which the treaty power can handle and Congress can not unless it be to render existing treaties effective. See Corwin, op. cit., p. 226; Anderson, this JOURNAL, 1: 667. 58 Geofroy v. Riggs, 133 U. S. 258; Story, op. cit., sec. 1508; Cooley, Constitutional Limitations, p. 103; Thayer, Cases 1: 373; Willoughby, op. cit., p. 247; Root, this JOURNAL, 1: 273; Corwin, op. cit., p. 19. 59 Supra, note 17. 60 Hayden, op. cit., Am. Hist. Rev., 22: 56. See example, supra, note 33. and interests of States before ratifying treaties. The courts could hardly refuse to apply a treaty on the grounds of a conflict with State powers so long as its subject-matter was bona fide appropriate for international contract. 61 (2) CONSTITUTIONAL GUARANTEES There are a considerable number of express prohibitions upon the power of the national government, and these undoubtedly limit the treaty-making power, as they do all other departments of the national government. Some of the prohibitions apply only to Congress, some only to the judiciary,62 and some only to the States,63 but those expressed in general terms apply to all organs and agencies of the national government.65 Consequently, a treaty in conflict with such a provision would not be made "under the authority of the United States" and would not be law in the sense of Article VI, section 2. The Constitution guarantees to a person accused of crime compulsory process for obtaining witnesses in his favor." 66 Article II of the treaty with France of 1853 provided that consuls of the contractuaries should "never be compelled to appear as witnesses before the courts." A conflict was thus presented to the United States district court of California when subpoena was issued against a French consul. The court upheld the treaty by interpreting the Constitution as guaranteeing to the accused only the same rights of compelling testimony as to the prosecution."7 France had made a diplomatic protest, claiming that the original arrest of the consul was in violation of the treaty, whereupon Secretary of State Marcy 61 Art. I, sec. 9, cl. 1; Amendment I. 62 Amendment XI. 63 Art. I, sec. 10, Amendment XIV, sec. 1. 64 Art. I, sec. 9, cl. 2-8; Amendments II-VIII, XIII, XV, XVIII. Probably Amendment I should be regarded as in the same class, though in terms applying only to Congress. 65 That they do not apply to the States, see Barron v. Baltimore, 7 Pet. 243 (1833). 66 Amendment VI. 67 In re Dillon, Fed. Cas. 3914 (1854). upheld the authority of the Constitution, taking a reverse attitude from that of the court. He said: 68 This principle, the President directs me to say, he cannot disavow, nor would it be candid in him to withhold an expression of his belief that if a case should arise presenting a direct conflict between the Constitution of the United States and a treaty made by authority thereof, and be brought before our highest tribunal for adjudication, the court would act upon the principle that the Constitution was paramount law. It appears that Secretary Marcy's view has been adhered to since this occurrence, because such immunities have not been granted in later consular conventions.69 Undoubtedly the more fundamental guarantees, such as that of "due process of law," can not be abridged by the treaty-making power. Thus, in the cases involving the Spanish cessions of 1898, the court held that, while treaty acquisitions of territory did not automatically extend all of the constitutional guarantees to the acquired territory, neither the treaty power nor Congress could deprive the inhabitants of those guarantees which might be called "natural rights.'' 70 A treaty may, however, provide for depriving persons of liberty in certain circumstances without violating the "due process of law" guaranty. Certain Mexican revolutionists, who crossed the American border and were interned in accord with Article II of the Vth Hague Convention of 1907, sought to show that the treaty provision was void as in violation of the Fourth, Fifth and Sixth Amendments. The Circuit Court of Appeals upheld the treaty," holding that Amendments Four and Six had no relation to the case, and that the "due process of law" required by the Fifth Amendment had been observed by complying with the terms of the treaty, which by the Constitution was itself law. 68 Mr. Marcy, Secretary of State, to Mr. Mason, Jan. 18, 1855, Moore, 5: 167. 69 Treaties, United States and Greece, 1902; United States and Spain, 1902, Malloy, Treaties, pp. 855, 1701; Sen. Doc., No. 357, 61st Cong., 2nd Sess.; Corwin, op. cit., p. 15. 70 Dicta of Justice Brown in Downes v. Bidwell, 182 U. S. 244, 282; Dorr v. U. S., 195 U. S. 138. 71 Ex parte Toscano, 208 Fed. Rep. 938. |