a fertile field for academic investigation and discussion. It has also afforded the Supreme Court of the United States, the creation of which was the crowning evidence of the practical, as well as the theoretical, genius of the men who framed the Constitution, the occasions for rendering some of its ablest decisions in the delimitation of the boundary line between State and Federal jurisdiction, upon which have been placed the monuments bearing the warning to Federal aggression-"Thus far shalt thou go and no farther." 4" The establishment of the Supreme Court of the United States was the crowning marvel of the wonders wrought by the statesmanship of America. In truth the creation of the Supreme Court with its appellate powers was the greatest conception of the Constitution. It embodied the loftiest ideas of moral and legal power, and although its prototype existed in the Superior Courts established in the various States, yet the majestic proportions to which the structure was carried became sublime. No product of government, either here or elsewhere, has ever approached it in grandeur. Within its appropriate sphere it is absolute in authority. From its mandates there is no appeal. Its decree is law. In dignity and moral influence it outranks all other judicial tribunals of the world. No court of either ancient or modern times was ever invested with such high prerogatives. Its jurisdiction extends over Sovereign States as well as over the humblest individual. It is armed with the right as well as the power to annul in effect the statutes of a State whenever they are directed against the civil rights, the contracts, the currency or the intercourse of the people. It restricts Congressional action to Constitutional bounds. Secure in the tenure of its Judges from the influence of politics, and the violence of prejudice and passion, it presents an example of judicial independence unattainable in any of the States and far beyond that of the highest Court in England. Yet its powers are limited and strictly defined. Its decrees are not arbitrary, tyrannical or capricious, but are governed by the most scrupulous regard for the sanctity of law. It cannot encroach upon the reserved rights of the States or abridge the sacred privileges of local self-government. Its power is never exercised for the purpose of giving effect to the will of the Judge, but always for the purpose of giving effect to the will of the legislature, or, in other words, to the will of the law. Its administration is a practical expression of the workings of our system of liberty according to law. Its Judges are the sworn ministers of the Constitution, and are the High Priests of Justice. Acknowledging no superior, and responsible to their cousciences alone, they owe allegiance to the Constitution and to their own exalted sense of duty. Instructed and upheld by a highly educated bar, their judg ments are the ripest fruits of judicial wisdom. Amenable to public opinion, they can be reached, in § 2. Exceptions to general rule of limitations of power. -There are, however, some exceptions to this general rule; there are certain instances in which the Federal Government not only possesses, and exercises, powers which have been delegated to it by the people, and which are portions of the delegated sovereignty as enumerated in the Constitution, but in which it also possesses, and exercises certain other powers, \as inherent attributes of the sovereignty with which it is clothed, in the same manner as all other fully sovereign states possess and exercise such powers; one of the most notable instances of these inherent attributes of sovereignty is the treaty-making power, the basis of discussion in this work; it is undoubtedly one of the most far-reaching and important prerogatives possessed by the National Government, because through it not only the internal affairs of every State in the Union are affected, but relations are established between this nation and all the people composing it, with all the other nations and peoples of the world. Although the National Government possesses this power under the Constitution, as one of the powers expressly enumerated there、in, the exercise thereof is controlled not only by constitutional limitations but also by the general rules of law applicable to all sovereign powers and to their exercise of this prerogative.1 § 3. Author's general views as to extent of treatymaking power. The author fully appreciates that any attempt to extend Federal jurisdiction to matters which are case of necessity, by impeachment | sent, take and hold actual, continby the Senate of the United States. uous and useful possession, (alNo institution of purely human contrivance presents so many features calculated to inspire both veneration and awe." Carson's History of the Supreme Court of the United States, pp. 6-8. § 2. 66 though only for the purpose of carrying on a particular business, such as catching and curing fish, or working mines), of territory unoccupied by any other government or its citizens, the nation to which they belong may exercise such jurisdiction and for such period as it sees fit over territory so acquired. This principle affords ample warrant for the legislation of Congress concerning Guano Islands. Vattel, lib. 1, c. 18; on International Law §§ 161, 165, 176, note 1" By the law of nations, recognized by all civilized States, dominion of new territory may be acquired by discovery and occupa tion, as well as by cession or conquest; and when citizens or subjects of one nation, in its name, Wheaton and by its authority or with its as-(8th ed.), not clearly expressed in the Constitution carries with it the onus probandi to its fullest extent. He is, however, so firmly convinced that the government of the United States is completely endowed with all the essential attributes of nationality and sovereignty in regard to National affairs that he feels fully justified in expressing the following opinion: First: That the treaty-making power of the United States, as vested in the Central Government, is derived not only from the powers expressly conferred by the Constitution, but that it is also possessed by that Government as an attribute of sovereignty, and that it extends to every subject which can be the basis of negotiation and contract between any of the sovereign powers of the world, or in regard to which the several States of the Union themselves could have negotiated and contracted if the Constitution had not expressly prohibited the States from exercising the treaty-making power in any manner whatever and vested that power exclusively in, and expressly delegated it to, the Federal Government. Second: That this power exists in, and can be exercised by, the National Government, whenever foreign relations of any kind are established with any other sovereign power, in regulating by treaty the use of property belonging to States or the citizens thereof, such as canals, railroads, fisheries, public lands, mining claims, etc. ; in regulating the descent or possession of property within the otherwise exclusive jurisdiction of States; in surrendering citizens and inhabitants of States to foreign powers for punishment of crimes committed outside of the jurisdiction of the United States or of any State or territory thereof; in fact, that the power of the United States to enter into treaty stipulations in regard to all matters, which can properly be the subject of negotiation between sovereign states, is practically unlimited, and that in no case is the sanction, aid or consent of any State necessary to validate the treaty or to enforce its provisions. Third: That the power to legislate in regard to all mat 104; Halleck on International Law, | 300; Whiton vs. Albany Ins. Co., c. 6, §§ 7, 15; 1 Phillimore on In- 109 Mass. 24, 31." ternational Law (3d ed.), §§ 227, Jones vs. United States, U. S. · 229, 230, 232, 242; 1 Calvo Droit Sup. Ct. 1890, 137 U. S. 202, p. 212, International (4th ed.), §§ 266, 277, | GRAY, J. ters affected by treaty stipulations and relations is co-extensive with the treaty-making power, and that acts of Congress enforcing such stipulations which, in the absence of treaty stipulations, would be unconstitutional as infringing upon the powers reserved to the States, are constitutional, and can be enforced, even though they may conflict with State laws or provisions of State constitutions. Fourth: That all provisions in State statutes or constitutions which in any way conflict with any treaty stipulations, whether they have been made prior or subsequent thereto, must give way to the provisions of the treaty, or act of Congress based on and enforcing the same, even if such provisions relate to matters wholly within State jurisdiction. § 4. State legislation not necessary to carry out treaty stipulations. So far-reaching is this treaty-making power, that the author unhesitatingly condemns the policy, which has occasionally been adopted by the United States, of avoiding absolute treaty stipulations as to matters within the jurisdiction of the several States, but at the same time stipulating to urge the States to enact legislation necessary to obtain the desired results; such method is not only unnecessary, but is also undignified; in many cases the results are not only unsatisfactory, as no distinct obligations are created, but they are frequently productive of injustice, as general concessions for the benefit of the entire Union and all of the inhabitants thereof may be lost by the refusal of the legislature or people of a single State to adopt the necessary legislation; in fact, history shows that Article VI of the Constitution which makes treaties the supreme law of the land was undoubtedly framed and inserted in the Constitution for the special purpose of preventing exactly that class of treaty stipulations which, under the Confederation, had been tried on several occasions and found wanting in every instance.1 § 5. Treaties made by United States Government binding on all States.-The authorities bearing upon this subject also show that the United States Government, when it exercises the treaty-making power in regard to matters which § 4. 1See sec. 159, chap. V; sec. 211, chap. VII; secs. 266-72, chap. IX, and cases cited, and opinions referred to, in those sections. are otherwise within the exclusive jurisdiction of one or more States, does so as the agent, as it were, for and on behalf of the people of the State or States affected by the treaty, and as such agent is clothed with full power to represent and bind them. As the States are absolutely deprived of all treaty-making power by express Constitutional limitations, it is only through the intervention of the Federal Government, thus exercised on their behalf, that the rights of the States and their citizens, in their relations with foreign nations can be protected and conserved. § 6. Treaties the Supreme law of the land. The decisions of the Supreme Court show that whenever this power has been exercised, even to its fullest extent in regulating by international agreement matters which otherwise are exclusively within the control of any State, those provisions of the treaty itself, as well as all Congressional legislation subsequently enacted to carry them into effect, have been sustained by that court of highest power and of last resort as being within the sense and meaning of Article VI. of the Constitution which declares that "this Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made or which shall be made, under the Authority of the United States shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." § 7. Sources of author's information and grounds of his § 6. ercise. The supreme power must 1" This brief and comprehensive reside somewhere, and the basis of declaration proposed in the con- the American constitutional suvention on July 17, 1787, by Luther premacy is nowhere better deMartin, of Maryland, and passed scribed than in Washington's terse unanimously, stands in the Consti- phrase, in his letter as President of tution as the Bill of Rights of the the Convention, commending the Federal Judiciary. It is a nail work to the approval of the States, fastened in a sure place. It would as the 'giving up a share of liberty have been wholly in vain to grant to preserve the rest.'" Address of the supreme judicial power to the Mr. William Allen Butler on "The Federal Courts without this solemn Origin of the Supreme Court of the guaranty against any remaining United States and its place in the power in the State Courts, or Constitution," delivered at the Judges, to nullify or impede its ex- Centennial Celebration of the or |