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PREFACE

AND DEDICATORY NOTE.

A little over a year ago the original manuscript of this work, upon which nearly three years had then been spent, was handed to the publisher with the hope and expectation that the single volume then in contemplation would be completed and offered to the reading public within the following sixty days. Such hope and expectation, however, failed to be realized as the necessity for revision of, and additions to, the original manuscript and the pages as they returned from the printer, resulted in expanding the work to its present proportions, and in delaying its publication until the present time. The increased bulk of these volumes it is hoped, is, to some extent, atoned for by the thoroughness with which they have been indexed, for that part of the work can be referred to without egotism as it has been done almost, if not entirely, by Mr. E. E. Treffrey whose ability as an analyzer and indexer of works of this nature has earned for him a well deserved reputation.

The selection of the subject-matter of these volumes was the natural outcome of my investigations into the nature and extent of the treaty-making power of the United States during my connection in 1898 with the Anglo-American Joint High Commission, particularly in regard to the extent of the power of the United States to enforce, by appropriate Federal legislation, treaty stipulations in regard to matters which, in the absence of treaty relations, would be wholly

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within State jurisdiction. The result of such investigations appears in chapter XV of volume II, but after the conclusions there stated had been reached and even after my connection with the Commission had ceased, the subject continued to interest and fascinate me, and so held my attention that I determined to make it the basis of a work in which the treaty-making power of the United States in all of its varied phases and aspects should be the principal subject instead of being, as until the present time it generally has been, the subject merely of a subdivision, or of a chapter, in works on constitutional and international law. It has been impossible, however, to cover the subject as thoroughly as was originally intended, because, as the work bas progressed, new branches and subdivisions have constantly appeared, and doubtless if they had not been brought to an abrupt close these volumes might have been indefinitely increased in size, and delayed in publication.

The expansion of the work has to a great extent been caused by the addition to volume I of the Insular Cases Appendix which contains an abstract of all of the decisions and opinions of the Supreme Court of the United States in the cases decided in May and December, 1901, which involved the status, so far as the revenue provisions of the Constitution are concerned, of our newly acquired possessions; and also of the Treaties Appendix to volume II which contains a list of treaties and agreements, and proclamations affecting our relations, with foreign countries, arranged alphabetically according to countries, and which, owing to the great pains and labor of Captain Osgood Smith of the New York Bar and now of Havana, who assisted me in its preparation, is probably more complete than any other published list of treaties and proclamations.

The delay in publication has largely been on account of the rapidity with which “history-making” has progressed

during the preparation of these volumes. The deaths of Queen Victoria and President McKinley were undoubtedly the two most important historical events of 1901, but those baving the most important bearing upon the treaty-making power were the decisions on May 27th and December 2d, of the Supreme Court in the Insular Cases which have already been referred to, and the negotiation and ratification of the Hay-Pauncefote treaty by which the Clayton-Bulwer treaty of 1850 was superseded and abrogated. As these, and other, events happened after much of the matter was actually “in plate” they necessitated changes and delay. Even now, as this book goes

to
press,

and it is too late to make more than a brief mention thereof, (p. 457, vol. I) the irrepressible conflict between the Senate and the House of Representatives as to the necessity of legislation to make treaty stipulations not only obligatory as contracts, but also effectual as laws, has been reopened; and the question which, as Senator Cullom declared, has been debated for over a century in both Houses of Congress without reaching any decision, has once more assumed serious and practical importance. It has, indeed, been a temptation to delay the publication until some definite conclusion shall have been reached in the pending contest, but it has been resisted, and should any additional treaty history be made, or treaty law be newly expounded, reference thereto will have to await the publication of further editions, if any shall ever be warranted by the reception accorded to this.

That which has most impressed itself upon me as I have prepared these pages is the magnitude of any element of constitutional law; indeed the grandeur of the Constitution itself, not only as the subject of study but as the “great charter of our liberties” as it was fitly called by Justice Story in his opinion in the great case of Martin vs. Hunter must steadily grow upon any one who carefully studies it; the

words then uttered by that great jurist have a lasting significance, and they will be as applicable in the future as they are to-day and were in 1816 when he declared: “The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence"; and who can fail to be impressed with the wisdom of its framers who “foreseeing that it would be a perilous and difficult, if not an impracticable, task to provide for minute specification of its powers, expressed them in general terms, leaving to the legislature from time to time, to adopt its own means to effectuate legitimate objects, and mould and model the exercise of its powers as its wisdom and the public interests should demand.” Surely the temptations which those men in Philadelphia resisted to insert specifications and details applicable to then existing circumstances must have been strong indeed, and all praise must be given to them, in that they were able to rise above local and temporary exigencies and frame an instrument which is to-day as true a chart and compass for a great world power as it was then for an infant nation struggling for existence.

In presenting this my first work of any magnitude, I acknowledge that it must contain many errors and that much has been omitted which should have found a place therein, and indulgence is asked for all these faults. I also know that some of the opinions which have been expressed differ from those held by men whom no one respects more than I do. Questions involving the construction of our Constitution always have been, and always will be, debatable; it is well for our country that it is so, as it is only by the earnest presentation of both sides of every question that truth is finally reached and safe methods adopted. In expressing my own opinions, however, an effort has been made to place the reader in

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