broad and general proposition that the Constitution is paramount in authority to any treaty or convention made by this government. This principle, the President directs me to say, he can not disavow, nor would it be candid in him to withhold an expression of his belief that if a case should arise presenting a direct conflict between the Constitution of the United States and a treaty made by authority thereof, and be brought before our highest tribunal for adjudication, the court would act upon the principle that the Constitution was the paramount law." (Mr. Marcy, Sec. of State, to Mr. Mason, Jan. 18, 1855, MS. Inst. France, XV. 249.) Mr. Marcy here referred to the case of the French consul at San Francisco, M. Dillon, who, on failing to respond to a subpœna duces tecum, was brought into court on an attachment to testify in behalf of Señor Del Valle, Mexican consul at San Francisco, who had been indicted in the United States district court for the northern district of California on a charge of having violated the neutrality act of 1818. When brought into court, M. Dillon presented, through counsel, a protest, based on Articles II. and III. of the consular convention between the United States and France of 1853. Argument was heard, and Judge Ogden Hoffman, before whom the trial was pending, decided that the consul was exempt from compulsory process. Judge Hoffman based this decision on the ground that the constitutional provision was designed, not to subject every individual to process, but to secure to the accused equal rights with the prosecution in obtaining testimony. (See supra, § 714, where a fuller account is given.) With regard to Mr. Marcy's argument or admission that ambassadors and ministers were exempt because the law so stood when the Constitution went into effect, it is proper to point out that consuls, though not possessing the same general immunity, then frequently enjoyed specific immunities of a similar nature, as they still do, by virtue of treaty stipulations; and, as compulsory process was used to compel M. Dillon to answer a subpoena duces tecum, involving, as he alleged, the invasion of the archives of his office, it is by no means certain that there was not embraced in the controversy a privilege secured by international law. The existence of such a question would not, however, have invalidated, though it might have rendered less fully applicable to the case then pending, the principle, which Mr. Marcy asserted, that a constitutional provision must prevail over a treaty stipulation, should a conflict be found to exist between them. See also, Mr. Marcy, Sec. of State, to Mr. de Figanière, Portuguese chargé d'affaires, March 27, 1855, saying that, although the language of Article II. of the consular convention between the United States and France of February 23, 1853, exempting consuls from compulsory process, is general and unrestricted in terms, “yet it is here held that it does not take away the right which the defendant in a criminal prosecution has to resort to such process to procure the witnesses in his favor, for this right is secured to him by the express language of the United States Constitution." That instrument is paramount in authority to the laws of Congress or of any of the States, and to all treaty stipulations. (MS. Notes to Portugal, VI. "In reply, the undersigned hastens to inform Mr. Aspurúa that it is believed not to be competent to the treaty-making power of the United States to enter into such an engagement as that contained in the twenty-fifth article of the convention concluded at Caracas on the 20th day of September by the plenipotentiaries of Venezuela and the United States, viz: "Whenever one of the contracting parties shall be engaged in war with another state, no citizen of the other contracting party shall accept a commission or letter of marque for the purpose of assisting or co-operating hostilely with the said enemy against the said party so at war, under the pain of being considered as a pirate.' "The Constitution of the United States provides that Congress shall 'define and punish piracies and felonies committed on the high seas. Although several conventions have been made by this government with foreign governments, some of which still continue in force, containing, in substance, the stipulation just quoted, they were evidently contracted by an oversight of one of the provisions of the Constitution-the supreme law of this country. The President, entertaining this opinion, can not consent to transmit the convention negotiated by Mr. Eames, which in all other respects meets with his approval, to the Senate for ratification without presenting to that body his objections to the article aforementioned." Mr. Marcy, Sec. of State, to Mr. Aspurúa, Nov. 15, 1854, MS. Notes to A treaty, no less than the statute law, "must be made in conformity with the Constitution, and where a provision in either a treaty or a law is found to contravene the principles of the Constitution, such provision must give way to the superior force of the Constitution, which is the organic law of the Republic, binding alike on the government and the nation." Mr. Blaine, Sec. of State, to Mr. Chen Lan Pin, March 25, 1881, For. Rel. 1881, 335, 337. November 23, 1864, Mr. Adams, United States minister at London, acting under instructions, gave the stipulated six months' notice of a wish to terminate the arrangement of April 28-29, 1817, in relation to armaments on the Great Lakes. The arrangement in question was originally effected by an exchange of notes. It was afterwards approved by the Senate, but no exchange of ratifications ever took place. The notice given by Mr. Adams was "adopted and ratified" by a joint resolution of Congress approved February 9, 1865. The arrangement was thus to end on May 23, 1865. March 8, 1865, however, Mr. Seward, in view of the changed situation along the Lakes, stated that the United States was willing that the convention "should remain practically in force;" and on June 15, 1865, he informed the British minister at Washington that this "was intended as a withdrawal of the previous notice within the time allowed, and that it is so held by this government." As between the United States and Great Britain this act of withdrawal was "no less authoritative than the notification itself." Into the authority of the Secretary of State either to give or to withdraw the notice, the British government was "incompetent to inquire;" it "could only accept and respect the withdrawal as a fact." The question of competency, "being a matter of domestic administration, affecting the internal relations of the executive and legislative powers," in no wise concerned Great Britain. The raising by her of a question as to "the authority of the executive power" in the matter, would have constituted "an unprecedented and inadmissible step in the international relations of governments." As a question of "domestic administration and powers," the action of Mr. Seward “opens the door to nice argument in theory touching the constitutional aspects of the transaction,” but as a matter of "practical effect" the subject may be deemed "more interesting than material." As an international understanding limiting the naval force to be maintained by either party on the lakes, the arrangement of 1817, even if lacking express legislative sanction, violated no existing legislation. "As between the two countries the arrangement is, therefore, to be regarded as still in existence, and only terminable in good faith by six months' notice of abrogation on either side." Report of Mr. Foster, Sec. of State, to the President, Dec. 7, 1892, H. “That a treaty can not invade the constitutional prerogatives of the legislature is thus illustrated by a German author, who has given to the subject a degree of elaborate and extended exposition which it has received from no writer in our own tongue. Congress has under the Constitution the right to lay taxes and imposts, as well as to regulate foreign trade, but the President and Senate, if the "treatymaking power" be regarded as absolute, would be able to evade this limitation by adopting treaties which would compel Congress to destroy its whole tariff system. According to the Constitution, Congress has the right to determine questions of naturalization, of patents, and of copyright. Yet, according to the view here contested, the President and Senate, by a treaty, could on these important questions utterly destroy the legislative capacity of the House of Representatives. The Constitution gives Congress the control of the Army. Participation in this control would be snatched from the House of Representatives by a treaty with a foreign power by which the United States would bind itself to keep in the field an army of a particular size. The Constitution gives Congress the right of declaring war; this right would be illusory if the President and Senate could by a treaty launch the country into a foreign war. The power of borrowing money on the credit of the United States resides in Congress; this power would cease to exist if the President and Senate could by treaty bind the country to the borrowing of foreign funds. By the Constitution "no money shall be drawn from the Treasury, but in consequence of appropriations made by law;" but this limitation would cease to exist if by a treaty the United States could be bound to pay money to a foreign power. Congress would cease to be the law-making power as is prescribed by the Constitution; the law-making power would be the President and the Senate. Such a condition would become the more dangerous from the fact that treaties so adopted, being on this particular hypothesis superior to legislation, would continue in force until superseded by other treaties. Not only, therefore, would a Congress consisting of two houses be made to give way to an oligarchy of President and Senate, but the decrees of this oligarchy, when once made, could only be changed by concurrence of President and of Senatorial majority of two-thirds.'" Wharton, Int. Law Digest, § 131a, I. 26, citing Über den Abschluss von 4. CESSIONS OF TERRITORY. § 737. The question has on several occasions been discussed, whether the treaty-making power of the United States extends to the cession of territory belonging to a State of the Union without the State's consent. In the convention by which the Constitution of the United States was framed Colonel Mason, in seconding a proposed article for limiting the right of originating bills for the raising of revenue to the House of Representatives, said that he did so because "he was extremely earnest to take this power from the Senate, who, he said, could already sell the whole country by means of treaties. "He [Mr. Mercer] contended (alluding to Mr. Mason's observations) that the Senate ought not to have the power of treaties. This power belonged to the Executive department; adding, that treaties would not be final, so as to alter the laws of the land, till ratified by legislative authority. This was the case of treaties in Great Britain; particularly the late treaty of commerce with France. "Colonel Mason did not say that a treaty would repeal a law; but that the Senate, by means of treaties, might alienate territory, &c., without legislative sanction. The cessions of the British Islands in the West Indies, by treaty alone, were an example. If Spain should possess herself of Georgia, therefore, the Senate might by treaty dismember the Union." Nothing in contradiction of this statement is reported to have been said. Madison Papers, III. 1330–1332, quoted in 1 Butler's Treaty-Making In the draft of the instructions of March 18, 1792, to Messrs. Carmichael and Short, who were appointed to negotiate with Spain concerning commerce, navigation, and boundaries, Jefferson, who was then Secretary of State, expressed the opinion that the right to alienate even an inch of the territory of any State did not belong to the central government. In another part of the instructions, however, he admitted that, as the result of a disastrous war, the abandonment of territory might be necessary. Hamilton denied the validity of the limitation which Jefferson sought to place on the treaty-making power, especially as to uninhabited territory. The instructions, however, remained unchanged. Crandall, Treaties, their Making and Enforcement, 111-112, citing Am. See extract from Jefferson's Ana, March 11, 1792, 2 Randall's Jefferson, During the existence of the northeastern boundary dispute, the government of the United States at one time entered into a negotiation with the State of Maine with a view to obtain entire liberty of action in regard to a settlement. It was proposed that the legislature of Maine should provisionally surrender to the United States all territory claimed by the State north of the St. John and east of the River St. Francis, Maine to be indemnified by adjoining territory for the ultimate loss of any part of the territory thus surrendered, and, so far as the adjoining territory should prove inadequate, by Michigan lands, at the rate of a million acres of such lands for the whole of the territory surrendered, the lands thus appropriated to be sold by the United States and the proceeds paid into the treasury of Maine. An agreement or “treaty" to this effect was actually signed in 1832 by Edward Livingston, Secretary of State; Louis McLane, and Levi Woodbury, on the part of the United States, and by William Pitt Preble, Ruel Williams, and Nicholas Emery, on the part of Maine. |