munity. It is most safe, therefore, to leave it to be exercised as contingencies may arise." 71 $134. General terms used.-The Constitution uses general terms in speaking of treaties. In his lectures on the Constitutional Jurisprudence of the United States Mr. Duer states: "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 under several restrictions, there 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 treaty-making power can be supported in any given case, those principles of the Constitution, from which the power proceeds, should carefully be 3 Elliott's Debates, 514. It was said by Attorney General Wirt: "The people seemed to have contemplated the National Government as the sole organ of intercourse with foreign nations. It ought to be armed with power to satisfy the fulfillment of all moral obligations, perfect and imperfect, which the law devolves upon us as a nation.'' 1 Op. Atty. Gen. 392. Richard Henry Lee, who strenuously opposed the adoption of the Constitution, speaking of the clause making treaties the supreme law of the land, said: "By the article before recited, treaties also made under the authority of the United States, shall be the supreme law. It is not said that these treaties shall be made in pursuance of the constitution-nor Treaties-9 are there any constitutional bounds set to those who shall make them. The president and two thirds of the senate will be empowered to make treaties indefinitely, and when these treaties shall be made, they will also abolish all laws and state constitutions incompatible with them. This power in the president and senate is absolute, and the judges will be bound to allow full force to whatever rule, article or thing the president and senate shall establish by treaty, whether it is practicable to set any bounds to those who make treaties, I am not able to say; if not, it proves that this power ought to be more safely lodged." Ford's Pamphlets on the Constitution, 311. applied to it. The power must, indeed, be construed in subordination to the Constitution; and however, 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.” 72 Constitutional 72 Lectures on the Jurisprudence of the United States, 2d ed., 228. Judge Story, speaking of the construction that should be placed upon general terms used in the Constitution, says: "Where the power is granted in general terms, the power is to be construed, as co-extensive with the terms, unless some clear restriction upon it is deducible from the context. We do not mean to assert, that it is necessary, that such restriction should be expressly found in the context. It will be sufficient, if it arise by necessary implication. But it is not sufficient to show that there was, or might have been, a sound or probable motive to restrict it. A restriction founded on conjecture is wholly inadmissible. The reason is obvious; the test was adopted by the people in its obvious and general sense. We have no means of knowing, that any particular gloss, short of this sense, was either contemplated, or approved by the people; and such a gloss might, though satisfactory in one state, have been the very ground of objection in another. It might have formed a motive to reject it in one, and to adopt it in another. The sense of a part of the people has no title to be deemed the sense of the whole. Motives of state policy, or state interest, may properly have in fluence in the question of ratifying it; but the constitution itself must be expounded, as it stands; and not as that policy, or that interest may seem now to dictate. We are to construe, and not to frame the instrument. "A power, given in general terms, is not to be restricted to particular cases, merely because it may be susceptible of abuse, and, if abused, may lead to mischievous consequences. This argument is often used in public debate; and in its common aspect addressed itself so much to popular fears and prejudices, that it insensibly acquires a weight in the public mind, to which it is nowise entitled. The argument ab inconvenienti is sufficiently open to question, from the laxity of application, as well as of opinion, 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 form of government unavoidably includes a grant of some discretionary powers. It would be wholly imbecile without them. It is impossible to foresee all the exigencies, which may arise in the progress of events, connected with the rights, duties, and operations of a government. If they could be foreseen, it would be impossible ab ante § 135. Comments. While general terms are used in the Constitution in conferring the treaty-making power, and no express restrictions are placed upon its exercise, it is recognized that restrictions upon the power may be necessarily implied; but such restrictions must not rest on conjecture. They cannot be implied because there might have been a sound motive for such restrictions, but the Constitution must be construed by its own language. The power of taxation may also be an unlimited power, but its existence cannot be denied or its operation limited, because it might be employed to such an extent as virtually to produce confiscation. Likewise it is no argument against the treatymaking power, conferred in general terms, that it might be exercised imprudently or so as to produce mischief. $136. Chancellor Kent's views.-Chancellor Kent declared that treaties of peace are obligatory upon the whole nation. "The department of the government that is entrusted by the Constitution with the treaty-making power is competent to bind to provide for them. The means must be subject to perpetual modification and change; they must be adapted to the existing manners, habits, and institutions of society, which are never stationary; to the pressure of dangers, or necessities; to the ends in view; to general and permanent operations, as well as to fugitive and extraordinary emergencies. In short, if the whole society is not to be revolutionized at every critical period, and remodelled in every generation, there must be left to those, who administer the government, a very large mass of discretionary powers, capable of greater or less actual expansion according to circumstances, and sufficiently flexible not to involve the nation in utter destruction from the rigid limitations imposed upon it by an improvident jealousy. 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. Few cases are to be supposed, in which a power, however, general, will be exerted for the permanent oppression of the people. And yet, cases may easily be put, in which a limitation upon such a power might be found in practice to work mischief; to incite foreign aggression; or encourage domestic disorder. The power of taxation, for instance, may be carried to a ruinous excess; and yet, a limitation upon that power might, in a given case, involve the destruction of the independence of the country.'' 1 Story on Constitution, secs. 424, 425. the national faith in its discretion, for the power to make treaties of peace must be co-extensive with all the exigencies of the nation, and necessarily involves in it that portion of the national sovereignty which has the exclusive direction of diplomatic negotiations and contracts with foreign powers. All treaties made by that power become of absolute efficacy because they are the supreme law of the land. There can be no doubt that the power competent to bind the nation by treaty may alienate the public domain and property by treaty. If a nation has conferred upon its executive department without reserve the right of treating and contracting with other States, it is considered as having invested it with all the power necessary to make a valid treaty. That department is the organ of the nation, and alienations by it are valid because they are done by the deputed will of the nation. The fundamental laws of a State may withhold from the executive department the power of transferring what belongs to the States, but if there be no express provision of that kind, the inference is that it has confided to the department charged with the power of making treaties a discretion commensurate with all the great interests and wants and necessities of the nation.” 73 Mr. Cooley says: "The President has power by and with the consent of the Senate, to make treaties, provided two-thirds of the Senators concur. The Constitution imposes no restriction. upon this power, but it is subject to the implied restriction that nothing can be done under it which changes the Constitution of the country or robs a Department of the Government or any of the States of its constitutional authority."74 § 137. Other expressions.-William Pinkney, in a speech in the House of Representatives, speaking of the power conferred to enter into treaties with foreign powers, said: "Upon the extent of the power or the subjects upon which it may not, there is as little room for controversy. The power is to make treaties. The word 'treaties' is nomen generalissimum and will comprehend commercial treaties, unless there be a limit upon it by which they are executed. It is the appellative, which will take in the 73 1 Kent's Commentaries, 161, 162, cited with approval in Holden v. Joy, 17 Wall. 211, 21 L. ed. 523. To the same effect, see Duer's Outlines of Constitutional Jurisprudence of the 74 Constitutional Law, 3d ed., p. 117. whole species, if there be nothing to limit its scope. There is no such limit. There is not a syllable in the context of the clause to restrict the natural import of its phraseology. The power is left to the force of the generic term and is therefore as wide as a treaty-making power can be. It embraces all the varieties of treaties which it could be supposed this government could find it necessary or proper to make, or it embraces none. It covers the whole treaty-making ground which this government could be expected to occupy, or not an inch of it. "It is a just presumption, that it was designed to be coextensive with all the exigencies of our affairs. Usage sanctions that presumption-expediency does the same. The omission of any exception to the power, the omission of the designation of a mode by which a treaty not intended to be included within it might otherwise be made, confirms it." 75. $138. Difference between delegation of treaty-making power and legislative power.-Mr. Calhoun declared that there was a striking difference between the manner of conferring the delegation of the treaty-making and that of the law-making power. The legislative powers vested in Congress are enumerated and specified, while the language relative to the treaty-making power is general. "The reason, he says, "is to be found in the fact that the treaty-making power is vested exclusively in the government of the United States; and, therefore, nothing more was necessary in delegating it than to specify, as is done, the portion or department of the government in which it is vested. It was, then, not only necessary, but it would have been absurd to enumerate, specially, the powers embraced in the grant. Very different is the case in regard to legislative powers. They are divided between the Federal Government and State Governments; which made it absolutely necessary, in order to draw the line between the delegated and reserved powers, that the one or the other should be carefully enumerated and specified; and, as the former was intended to be but supplemental to the latter, and to embrace the comparatively few powers which 13 Wheaton's Life of Pinkney, 523, 525, 526, cited approvingly by supreme court of United States in Hauenstein v. Lynham, 100 U. S. 483, 25 L. ed. 628. |