congress in respect to making laws we shall find are laid under several restrictions. There are none in respect to treaties. Although the acts of public ministers, less immediately delegated by the people than the house of representatives; the president constitutionally and the senate, both constitutionally and practically, two removes from the people, are by the treaty making power, invested with the high and sole control over all those subjects which properly arise from intercourse with foreign nations, and may eventually effect important interests at home. To define them. in the Constitution would have been impossible, and therefore a general term could alone be made use of, which is, however, to be scrupulously confined to its legitimate interpretation. Whatever is wanting in an authority expressed, must be sought for in principle, and to ascertain whether the execution of the treaty making power can be supported, we must carefully apply to it the principles of the Constitution from which alone the power proceeds.

"In its general sense, we can be at no loss to understand the meaning of the word treaty. It is a compact entered into with a foreign power, and it extends to all those matters which are generally the subjects of compact between independent nations. Such subjects are peace, alliance, commerce, neutrality, and others of a similar nature. To make treaties is an essential attribute of a nation. One which disabled itself from the power of making, and the capacity of observing and enforcing them when made, would exclude itself from the international equality which its own interests require it to preserve, and thus in many respects commit an injury on itself. In modern times and among civilized nations, we have no instances of such absurdity. The power must then reside somewhere. Under the articles of confederation it was given with some restrictions, proceeding from the nature of that imperfect compact, to congress, which then nominally exercised both the legislative and executive powers of general government. In our present Constitution no limitations were held necessary. The only question was where to deposit it. Now this must be either in congress generally, in the two houses exclusive of the president, in the president

conjunctly with them or one of them, or in the president alone.

"There is a variance in the words descriptive of laws and those of treaties-in the former it is said those which shall be made in pursuance of the Constitution, but treaties are described as having been made, or which shall be made under the authority of the United States.

"The explanation is, that at the time of adopting the Constitution, certain treaties existed, which had been made by congress under the confederation, the continuing obligations of which it was proper to declare. The words 'under the authority of the United States,' were considered as extending equally to those previously made, and to those which should subsequently be effected. But although the former could not be considered as made pursuant to a Constitution which was not then in existence, the latter would not be unless they are conformable to its Constitution.

Having felt the necessity of the treaty-making power, and having fixed on the department in which it shall be vested, the people of course excluded from all interference with it, those parts of the government which are not described as partaking of it. The representation held out by our Constitution to foreign powers, was, that the president with the advice and consent of the senate, could bind the nation in all legitimate compacts: but if pre-existent acts, contrary to the treaty, could only be removed by Congress, this representation would be fallacious; it would be a just subject of reproach, and would destroy all future confidence in our public stipulations. The immediate operation of the treaty must therefore be to overrule all existing legislative acts inconsistent with its provisions."?

§ 262. Mr. Rawle's acquaintance with members of Constitutional Convention. Mr. Rawle had the advantage of personal acquaintance with members of the Constitutional Convention, and with the Judges of the Supreme Court who had been called upon to construe it, and he was well able to write upon the subject, having full knowledge of the circumstances under which the instrument itself was framed and ratified. In another part of his work, in which he discussed

2 Idem, p. 57-61, 1st edition; pp. 64-67, 2d edition.

the effect of Article VI upon the State constitutions and legislation, he recognized the necessity of central action without any reference whatever to the States; in this respect he says: "The effect of a treaty on state constitutions and state laws cannot be questioned. Without considering whether it operates directly as a repeal of them, we are warranted in saying that an act done under a state law, in opposition to a treaty, cannot be set up as a legal bar to a proceeding founded on a treaty.

"The inability of the Confederation to enforce the treaties made by them was severely felt. Many state laws which had been passed, during, or shortly after the war of the revolution, were inconsistent with some of the articles of the treaty of peace with Great Britain, and that power, complaining of injuries sustained in consequence thereof, postponed the fulfillment of the treaty in some points on their part. The inadequacy of the powers of congress to enforce it were then sensibly felt, and a serious declaration that a treaty, in virtue of the confederation, was part of the law of the land and obligatory on the several legislatures, was transmitted to all the states, with an urgent recommendation that the states themselves would repeal all those acts and parts of acts that were repugnant to the treaty. In this respect the want of a judicial power was strongly perceived.

"After the adoption of the Constitution, its retrospective effect upon the opposing laws of a state, passed even before the treaty, was speedily and fully established by the Supreme Court of the United States."1

$263. Views of William A. Duer; 1833.-Another of the early commentators of the Constitution was William A. Duer who as early as 1833, published his first text book on the Constitution, which was afterwards followed by his Constitutional Jurisprudence2 in which he declared that "the powers § 262.

1 A view of the Constitution of the United States, by William Rawle, Philadephia, 1825 and 1829, 1st edition p. 68; 2d edition, p. 74. § 263.

1 Outlines of the Constitutional Jurisprudence of the United States,

by William Alexander Duer, LL. D. New York, 1833.

2 A course of Lectures on the Constitutional Jurisprudence of the United States by William Alexander Duer, 2d edition, Boston, 1856.

to make treaties, and to send and receive ambassadors and other public ministers and consuls, are essential attributes of national sovereignty, and of that international equality which the interests of every sovereignty require it to preserve." 3

The opening pages of his seventh Lecture, which are quoted at length in the notes show how thoroughly he had examined this point and how consistent it is with the nationality and sovereignty of the United States."

3 Idem, p. 227.

4 Lecture VIII, p. 227, idem, continues:

"The powers vested in the General Government for regulating foreign intercourse, consist,

"First. Of the powers to make treaties, and to send and receive Ambassadors, and other public Ministers, and Consuls.

"Secondly. Of the power to define and punish piracies and felonies committed on the high seas, and other offences against the law of nations; and,

66

Thirdly. Of the power of regulating foreign commerce; including a power to prohibit, after a certain period, now elapsed, the importation of slaves.

"This class of powers forms an obvious and essential branch of Federal administration; for if the United States are one nation in any respect, they are most clearly so in respect to other nations.

"1. The powers to make treaties, and to send and receive Ambassadors and other public Ministers, and Consuls, are essential attributes of national sovereignty, and of that international equality which the interests of every sovereignty require it to preserve. Both powers were possessed by Congress under the Confederation, but not to the extent to which they are now en

joyed; for then the former power was embarrassed by an exception, under which treaties might be substantially frustrated by regulations of the States, and the latter did not comprehend 'other public ministers and consuls.'

"As treaties with France and Holland, and especially the treaty of peace with Great Britain, existed when the Constitution was adopted, it became necessary to vary its terms in regard to treaties, from those relative to the laws of the United States; the declaration it contains in respect to the supremacy of the latter operating only in future, while in reference to the former the terms are, All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.' These terms were intended to apply equally to previously existing treaties, as well as to those made subsequently to the Constitution; and it has, accordingly, been adjudged, by the Supreme Court, that they effectually repeal so much of the State laws and Constitutions as are repugnant to them.

"More general and extensive terms, also, are used in vesting the power with respect to treaties, than in conferring that relative to laws; and, while the latter is laid

264. George Ticknor Curtis' Constitutional History of the United States.-The Constitutional History of the Uniunder several restrictions, there is a compact entered into with a are none imposed on the exercise of the former, notwithstanding it is committed to the President and Senate, in exclusion of the House of Representatives, and is executed through the instrumentality of agents delegated for the purpose. And although the President and Senate are thus invested with this high and exclusive control over all those subjects of negotiation with foreign powers, which, in their consequences, may affect important domestic interests, yet it would have been impossible to have defined a power of this nature, and, therefore, general terms only were used. These general expressions, however, ought strictly to be confined to their legitimate signification; and in order to ascertain whether the execution of the treatymaking power can be supported in any given case, those principles of the Constitution, from which the power proceeds, should carefully be applied to it. The power must, indeed, be construed in subordination to the Constitution; and how ever, in its operation, it may qualify, it cannot supersede or interfere with, any other of its fundamental provisions, nor can it ever be so interpreted as to destroy other powers granted by that instrument. A treaty to change the organization of the Government, or annihilate its sovereignty, or overturn its Republican form, or to deprive it of any of its constitutional powers, would be void; because it would defeat the will of the people, which it was designed to fulfill.

foreign power, and extends to all matters which are usually the subject of compact between independent nations. It is, in its nature, a contract, and not a Legislative act; and does not, according to general usage, effect of itself the objects intended to be accomplished by it, but requires to be carried into execution by some subsequent act of sovereign power by the contracting parties, especially in cases where it is meant to operate within the territories of either of them. With us, however, a different principle is established, in certain cases. It has been settled by the Supreme Court, that, inasmuch as the Constitution declares a treaty to be the law of the land, it is to be regarded in Courts of Justice as equivalent to an act of Legislature, whenever it operates of itself without requiring the aid of any legislative provision. But when the terms of any treaty stipulation import an executory contract, it addresses itself to the political, and not to the Judicial department for execution, and Congress must pass a law in execution of the compact, before it becomes a rule for the Courts. The Constitution does not expressly declare whether treaties are to be held superior to the Acts of Congress, or whether the laws are to be deemed coequal with, or superior to treaties; but the representation it holds forth to foreign powers, is that the President, by and with the advice and consent of the Senate, may bind the nation in all legitimate contracts; and if pre-existing laws, contrary to a treaty, could only be "A treaty, in its general sense, abrogated by Congress, this repre