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had an enlarged ideal of the duty to keep peace in America and to prevent European powers from setting up colonies or protectorates.

This general theory was extended to the Pacific, where the United States claimed a share in the Samoan Islands. It was shown in Cuba, where the United States compelled Spain to make peace after a ten years' civil war, in 1878; and twenty years later sent an armed force, which compelled the Spaniards to give up the island. By the annexation of the Philippines and other small Pacific islands and of the Hawaiian islands in 1898 and 1899, by sharing in the expedition of 1902 against the Chinese Boxers, the United States asserted an interest and a duty in Asia. The possession of the Philippines aroused new interest in the Panama Canal as a connection between the opposite coasts of North America and a highway from the North Atlantic to the far Pacific. When, in 1903, the United States came into possession of the canal strip by a treaty with the infant republic of Panama, there could no longer be any claim that the United States was simply an American power. From Manila to Maine, from Alaska to Porto Rico, the influence and the majesty of the United States is felt.

A result of this swift and eventful diplomatic experience is that Americans hold to an ideal of open and almost public diplomacy. Tocqueville, in 1835, thought democracy unfavorable to a strong foreign policy. Yet nothing upon which the people of the United States have set their hearts has been denied them: when they wanted unrestricted trade with other people's colonies, eventually they got it; when they wanted reciprocity with Canada, they had it; when they wanted to limit international trade by protective tariffs, all the European countries except Great Britain fell in with that notion. Democratic simplicity, backed up by the force of ninety million people, is sometimes brutally frank and explicit, but it carries its points, as when, in 1898, the Spaniards discovered that the American envoys in Paris had not the smallest intention of conceding any hairsbreadth of what they had been instructed to urge.

Americans are little accustomed to consider the feeling of weaker neighbors. From 1789 to 1898 our diplomacy with Spain was a succession of ultimata, coming up to the abandonment of Cuba; hence people seem to suppose that the absorption of Canada can be

brought about simply by talking about it; that we can annex Mexico and Central America whenever we feel like it; that the British West Indies are held by our sufferance. Americans think diplomacy, especially with weak powers, a kind of solitaire.

As to colonial trade, the United States has seen a great light since it has acquired dependencies; and we are now applying to the Philippines much the same limitations as to coasting trade and the movements of commerce as those which caused such resentment when continued by Great Britain in the West Indies after the Revolution. We stand for the open door in China, and for the closed door in our own dependencies.

Americans have an ideal of influence in Asia, already strong both in trade and in diplomatic influence in Japan. They have already exercised almost an authority in the adjustments between western powers in general and the Chinese government, standing in general for fair dealing and the integrity of the empire; yet on the other hand willing to offend four hundred million people by petty squabbles on a steamer dock, as to whether a particular Chinaman is a merchant or a mechanic.

Americans are prone to think that a nation with so many people, so many millions of money, and so many ships of war, must have always sound views on contested questions of diplomacy; what is desirable for their comfort and the peace of their neighborhood seems to them international law. In 1895 Secretary Olney, in his dispatches on the Venezuela question, declared that the Monroe Doctrine was American public law firmly established. today the United States is practically sovereign on this continent, and its fiat is law upon, the subjects to which it confines its interposition.



The very term international law means something that is a fiat because of international agreement and general acceptance. The true spirit of the country is better expressed in its warm interest in the development through The Hague Tribunal of a method of settling international questions outside the fiat of a particular country. If there be an American ideal of the relations of this country with the outer world it is one of peace founded on mutual understanding and mutual respect.




The power to make treaties with other nations is an inherent attribute of the sovereign power of an independent nation.

Where the treaty-making power is exercised by the sovereign power of a nation, the right to treat with other nations rests wholly in sovereignty and extends to every question pertaining to international relations.

Where, however, the treaty-making power is not exercised by the sovereign power of the nation as a whole, but has been delegated to a branch of the government by which it is exercised in a representative capacity, the treaty-making power there, although it arises from sovereignty, rests in grant, and can be exercised only to the extent of and in accordance with the terms fixed by the grant.

So in the United States, where the people, as the sovereign power, have delegated through the medium of their State conventions or State legislatures the treaty-making power to a designated section of the Federal Government under the Constitution, such power rests in grant and is to be measured and exercised under the terms of such grant. The people, as the sovereign power of the nation, may by amendment to the Constitution enlarge or curtail the power delegated, or change the method of exercising such power, or the branch of the government authorized to exercise it; but subject to such changes, the provisions of the Constitution must always determine where the treaty-making power is lodged and the extent of such power and the manner of exercising it. The Federal Government is one of delegated and enumerated powers, and whatever inherent right that government may have to exercise the treaty-making power for the nation, such right is subject to the organic or fundamental law of the nation.

The adoption of the 14th Amendment to the Constitution defining United States citizenship, as distinct from and independent of State citizenship, and prohibiting the abridgement by any State of

the privileges and immunities of citizens of the United States, has materially enlarged the jurisdiction of the Federal Government, but has not effected any change in the character of that government. It is an emphatic recognition that the Federal Government is national as befits the central government of a nation, but it does not remove the constitutional limitations imposed upon the Federal Government in its relations to the States.

The United States Supreme Court has held in the Slaughter-House cases (16 Wall. 36) that the citizenship of the United States, as defined by the 14th Amendment, is the primary citizenship, and that State citizenship is secondary and dependent upon it, nevertheless the Supreme Court has also held in Hodges v. United States (203 U. S. 1), as stated in the language of Mr. Justice Brewer, that notwithstanding the adoption of these three amendments [13th, 14th, and 15th] the national government still remains one of enumerated powers, and the 10th Amendment which reads, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," is not shorn of its vitality.


The question, therefore, of the extent and scope of the treatymaking power resolves itself into one of constitutional construction and interpretation.

By Section 2 of Article II. of the Constitution the power to make treaties is granted to the President, by and with the advice and consent of the Senate, provided two-thirds of the Senators present


This power is granted in general terms and without the reservation of any part of it to the States or to the people; neither is there any such reservation elsewhere in the Constitution. On the contrary, in Section 10 of Article I. of the Constitution, the power to make any treaty is expressly forbidden to the States. It is true that one of the following paragraphs of the same section provides that

no State shall, without the consent of Congress, * * * enter into any agreement or compact with another State, or with a foreign power

But so far as this provision applies to interstate relations it does not concern the treaty-making power of the nation, and, as applied to

the relations between a State and a foreign power, it is impossible to construe this provision as a reservation of any part of the treatymaking power to the States. Strictly speaking it is the denial of the right of any State to make even a contract of lesser importance than a treaty with a foreign government, without the consent of Congress. In a broader sense it suggests a method, if Congress is so disposed, of dealing with questions in which the nation at large is not interested, if any such questions there are, between a State and a foreign government, provided, however, that the agreement thereon does not rise to the dignity of a treaty in the sense in which that term is used in the Constitution. The meaning of the term treaty is considered more particularly later. For the present it is sufficient to note that a distinction was intended to be drawn between the terms "treaties and " agreement and compact as used here. This is evident from the separate classification made, and it is not to be assumed that there was a confusion of terms. (Holmes v. Jennison, 14 Peters 571.)

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In the case of Virginia v. Tennessee (148 U. S. 503), Mr. Justice Field, delivering the opinion of the Court, discusses the meaning of these terms as follows:

Looking at the clause in which the terms "compact" or "agreement" appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the States which may encroach upon or interfere with the just supremacy of the United States. Story, in his Commentaries (§ 1403), referring to a previous part of the same section of the Constitution in which the clause in question appears, observes that its language "may be more plausibly interpreted from the terms used, treaty, alliance, or confederation,' and upon the ground that the sense of each is best known by its association (noscitur a sociis) to apply to treaties of a political character; such as treaties of alliance for purposes of peace and war; and treaties of confederation, in which the parties are leagued for mutual government, political co-operation, and the exercise of political sovereignty, and treaties of cession of sovereignty, or conferring internal political jurisdiction, or external political dependence, or general commercial privileges;" and that "the latter clause, 'compacts and agreements,' might then very properly apply to such as regarded what might be deemed mere private rights of sovereignty; such as questions of boundary, interests in land situate in the territory of each other, and other internal regulations for the mutual comfort and convenience of States `bordering on each other." And he adds: "In such cases the consent of Congress may be properly required in order to check any infringement of the rights of the

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