States induced the revival at this time of some of the powers respecting national vessels in foreign ports, and respecting disputes between the officers and crews of such vessels, and concerning deserters, which had been conferred upon consuls by Jefferson's convention with France in 1788. These important provisions were now inserted in the treaties of commerce, and continued to be so until the revival of the practice of concluding exclusively consular conventions, which had lain dormant from the time of Jefferson's mission in Paris. "Many commercial treaties were concluded during the administrations of President Jackson and President Van Buren, through which the principles, which had become part of the policy of the United States, were extended in every quarter of the globe. By the former administration also, long-pending differences with France were set at rest by a convention signed July 4, 1831; and a treaty was concluded with the Ottoman Porte, under which, for nearly forty years, it was not doubted that the citizens of the United States within the dominions of the Porte enjoyed certain rights of exterritoriality. “President Polk carried out with assiduity the policy of the nation by extending the number of its treaties for the regulation of commerce and navigation, for the abolition of unjust taxes, and for the regulation of international postal relations, and he added to the national domain by the treaty of peace with Mexico, and concluded a treaty with Great Britain, which was intended on the part of the United States to be a final settlement of the disputed northwestern boundary. He also caused the United States to enter into a treaty with New Granada, whereby they agree to guarantee positively and efficaciously to New Granada the perfect neutrality of the be fore-mentioned Isthmus' (Panama) and the rights of sovereignty and property which New Granada has and possesses over the said territory,' the first international obligation of this nature incurred since 1778. "During President Taylor's short administration several treaties of commerce were entered into with other powers. "President Buchanan released the commerce of the United States from the Danish dues at the Sound and Belts, made wider and broader the friendly relations with Japan, and he added to the number of the treaties for the regulation respectively of commerce, of extradition, and of international postage. "William H. Seward was the Secretary of State during the administrations of President Lincoln and of President Johnson. Under his direction of the Department of State, the treaties of commerce and the consular and extradition conventions were widely extended. The commerce of the United States was relieved from the Brünshausen dues, the navigation of the Dardanelles and of the Bosphorus was regulated, and the Scheldt dues were extinguished. A treaty was entered into for the suppression of the African slave trade, in which, for the first time since the adoption of the Constitution, it was agreed that an alien might sit as a judge in a court holding its sessions within the territories of the United States. Several treaties were made securing the recognition of the right of expatriation and naturalization, and the protection of trade-marks was also made the subject of a treaty. The relations with China, too, were essentially modified." Davis, Notes, Treaty Volume (1776–1887), 1224. "From the beginning and throughout the whole existence of the Federal government, it | the treaty-making power] has been exercised constantly on commerce, navigation, and other delegated powers, to the almost entire exclusion of the reserved, which, from their nature, rarely ever come in question between us and other nations. The treaty-making power has, indeed, been regarded to be so comprehensive as to embrace, with few exceptions, all questions that can possibly arise between us and other nations, and which can only be adjusted by their mutual consent, whether the subject-matter be comprised among the delegated or the reserved powers. So far, indeed, is it from being true, as the report supposes, that the mere fact of a power being delegated to Congress excludes it from being the subject. of treaty stipulations, that even its exclusive delegation, if we may judge from the habitual practice of the government, does not-of which the power of appropriating money affords a striking example. It is expressly and exclusively delegated to Congress, and yet scarcely a treaty has been made of any importance which does not stipulate for the payment of money. No objection has ever been made on this account. The only question ever raised in reference to it is, whether Congress has not unlimited discretion to grant or withhold the appropriation.” Mr. Calhoun, Sec. of State, to Mr. Wheaton, June 28, 1844, MS. Inst. This instruction related to a reciprocity treaty which Mr. Wheaton had For the report of the Senate committee, made by Mr. Choate June 14, 1844, see Compilation of Reports of the Com. on For. Rel., VIII. 36. July 19, 1899, the Department of State declined a proposal of the British Government to negotiate a treaty to prevent discrimina tory legislation by the several States of the United States, subjecting foreign fire-insurance companies to higher taxes than domestic companies. The reason given for the declination was that the negotiation of such a treaty would probably be futile on account of the indisposition of the people to permit any encroachment upon the exercise of powers of the local legislation. Mr. Hay, Sec. of State, to Mr. Tower, British chargé, July 19, 1899, For. Mr. Gallatin, in his speech in the House of Representatives on March 10, 1796, on Jay's treaty, said that "if the treaty-making power is not limited by existing laws, or if it repeals laws that clash with it, or if the Legislature is obliged to repeal the laws so clashing, then the legislative power in fact resides in the President and Senate, and they can, by employing an Indian tribe, pass any law under the color of treaty." "The argument," says Mr. Adams in his Life of Gallatin," is irresistible; it has never been answered; and indeed the mere statement is enough to leave only a sense of surprise that the Federalists should have hazarded themselves on such preposterous ground." Adams's Life of Gallatin, 161. The Constitution of the United States confers absolutely on the government of the United States the power of making war and of making treaties, from which it follows that that government possesses the power of acquiring territory either by conquest or by treaty. American Insurance Co. v. Canter, 1 Pet. 542. See, also, supra, § 94. It is a sound principle of national law, and applies to the treatymaking power of this government, whether exercised with a foreign nation or an Indian tribe, that all questions of disputed boundaries may be settled by the parties to the treaty. Lattimer r. Poteet, 14 Pet. 14. "There is no secret treaty of the kind you describe between the United States and Russia, and I may well add that there are no effective secret engagements of any kind between the United States and other sovereignties, all concluded treaties becoming effective only upon the ratification and public proclamation by the President." Mr. Bayard, Sec. of State, to Mr. Samuels, May 5, 1885, 155 MS. Dom. 3. QUESTION OF CONSTITUTIONAL LIMITATIONS. § 736. That a treaty is no more the supreme law of the land than is an act of Congress is shown by the fact that an act of Congress vacates pro tanto a prior inconsistent treaty. Whenever, therefore, an act of Congress would be unconstitutional, as invading the reserved rights of the States, a treaty to the same effect would be unconstitutional. Prevost r. Greneaux, 19 How. 7. "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government and of that of the States. It woud not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 100 U. S. 483; 8 Opinions Attys. Gen. 417; The People v. - Gerke, 5 California, 381." Geofroy r. Riggs (1890), 133 U. S. 258, 267. 6 "It [the treaty-making power] is limited by all the provisions of the Constitution which inhibit certain acts from being done by the government, or any of its departments; of which description there are many. It is also limited by such provisions of the Constitution as direct certain acts to be done in a particular way, and which prohibit the contrary, of which a striking example is to be found in that which declares that no money shall be drawn from the Treasury but in consequence of appropriations to be made by law.' This not only imposes an important restriction on the power, but gives to Congress as the law-making power, and to the House of Representatives as a portion of Congress, the right to withhold appropriations; and, thereby, an important control over the treaty-making power, whenever money is required to carry a treaty into effect; which is usually the case, especially in reference to those of much importance. There still remains another, and more important limitation, but of a more general and indefinite character. It can enter into no stipu lation calculated to change the character of the government; or to do that which can only be done by the constitution-making power; or which is inconsistent with the nature and structure of the government." Calhoun's Discourse on the Constitution and Government of the United "The Constitution is to prevail over a treaty where the provisions of the one come in conflict with the other. It would be difficult to find a reputable lawyer in this country who would not yield a ready assent to this proposition. Mr. Dillon's counsel admitted it in his argument for the consul's privilege before the court in California. The sixth amendment to the United States Constitution gives, in general and comprehensive language, the right to a defendant in criminal prosecutions to have compulsory process to procure the attendance of witnesses in his favor. Neither Congress nor the treaty-making power are competent to put any restriction on this constitutional provision. There was, however, at the time of its adoption, some limit to the range of its operation. It did not give to such a defendant the right to have compulsory process against all persons whatever, but only against such as were subject to subpoena process at that time, such as might by existing law be witnesses. There were then persons and classes of persons who were not thus subject to that process, who, by privileges and mental disqualifications, could not be made witnesses, and this constitutional provision did not confer the right on the defendant to have compulsory process against them. As the law of evidence stood when the Constitution went into effect, ambassadors and ministers could not be served with compulsory process to appear as witnesses, and the clause in the Constitution referred to did not give to the defendant in criminal prosecutions the right to compel their attendance in court. But what was the case in this respect as to consuls? They had not the diplomatic privileges of ambassadors and ministers. After the adoption of the Constitution the defendant in a criminal prosecution had the right to compulsory process to bring into court as a witness in his behalf any foreign consul whatsoever. If he then had it, and has it not now, when and how has this constitutional right been taken from him? Congress could not take it away, neither could the treaty-making power, for it is not within the competence of either to modify or restrict the operation of any provision of the Constitution of the United States." Mr. Marcy, Sec. of State, to Mr. Mason, min. to France, Sept. 11, 1854, "It is not, as you will perceive by examining Mr. Drouyn de L'Huys's |