up or claimed by either party under such Constitution, treaty, statute, commission or authority."1

In his "General Principles of Constitutional Law," in which he also discusses the same subject, he says:

"A State law must yield to the supreme law, whether expressed in the Constitution of the United States or in any of its laws or treaties, so far as they come in collision, and whether it be a law in existence when the 'supreme law' was adopted, or enacted afterwards. The same is true of any provision in the constitution of any State which is found to be repugnant to the Constitution of the Union. And not only must the judges in every State, be bound by such supreme law, but so must the State itself, and every official in all its departments, and every citizen." 2

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§ 268. Professor Pomeroy's Views. Another recent writer on the Constitution whose books have great weight in regard to its construction is Professor John Norton Pomeroy, whose "Introduction to the Constitutional Law of the United States" has already reached its ninth edition. He has, perhaps, more than any other writer, examined the subject of the treaty-making power, and his opinion, amply sustained by citations and extracts from other authorities, is unequivocally expressed as follows:

.

"Of the unlimited extent and transcendent importance of this (treaty-making) function thus confided to the Executive, either alone or in connection with the Senate, there can be no doubt.1 The Constitution places no express limits whatever upon the subjects, conditions, or contents of treaties. The President shall have power to make treaties. Now, the subjects to which these international compacts § 267.

1 A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union, by Thomas M. Cooley, LL. D., 6th edition, edited by Alexis C. Angell, Boston, 1890, pp. 18-19.

2 The General Principles of Constitutional Law in the United States of America, by Thomas M. Cooley, LL.D., 3d edition, by An

drew C. McLaughlin, A.M., LL.B., Boston, 1898, pp. 32-33. And see numerous authorities cited in notes thereto.

§ 268.

1 An Introduction to the Constitutional Law of the United States, by John Norton Pomeroy, 9th edition, revised and enlarged by Edmund H. Bennett, Boston and New York, 1886, § 670, p.563.

may legitimately refer, are innumerable; the stipulations they may legitimately contain, are equally various, dependent on numberless changes of circumstances and relations. They may affect most vitally the interest of the nation as a whole, or the private and personal interests of individuals. The genus, treaties, includes all the usual kinds

and sorts." 2

He expresses, however, an opinion that there are some implied limitations, as for instance the deprivation of Congress or the Judiciary, or the President, of any general powers which are granted by the Constitution, or any general change in the form of government of this country, but, with this exception, he does not consider that there are any limitations, and draws particular attention to the fact that all "treaties made by the authority of the United States are, equally with the Constitution and the laws of Congress passed under it, the supreme law of the land, and are binding upon, and superior to, state authority, whether that be expressed in state constitutions or state laws."

$269. Professor Pomeroy's broad views in regard to the Executive and foreign relations.-The most pertinent part of his conclusions upon this subject are found in the following remarks, "upon the scope and extent of this executive function of regulating foreign relations, and its influence and effect upon the general powers of the national government." Continuing he says: "There is here, as I believe, a mine of power which has been almost unworked, a mine rich in beneficent and most efficacious results. The President may, and must, manage the foreign relations; he may, in the manner prescribed, enter into treaties. Where the act is legislative in its nature, the Congress may legislate; where the act is executive in its nature, the President may execute. But Congress may, in aid of this function of the President, pass laws which are addressed directly to the separate states, and which control the acts of their governments. The states have no international status; but they may, through their governments, do such acts as endanger the foreign relations of the nations; for these acts 2 Idem, § 674, p. 566. 3 Idem, § 675, p. 567.

the Government is responsible to the foreign power, and cannot evade the responsibility by asserting its want of control over the state. As the responsibility rests upon it, the power must belong to it.. . . . I am of opinion that the general government, under its function of controlling international relations, has the power by proper legislation, to prevent a state from repudiating its public debt, so far as that debt may be held by foreign citizens. I repeat, that in this Executive attribute, and in the capacity of Congress to pass laws in aid thereof, there is a source of power which has, as yet, been little resorted to, which has even been little thought of, but which is fruitful in most important and salutary results.

"When we reflect upon the great variety of treaties which may be made, and the compulsive character which the Constitution stamps upon them, the power of the general government, through their means to control state legislation is even more plainly apparent."1

$270. Professor Pomeroy on State statutes and treaty stipulations.-Referring to the provisions in one of the treaties with France, in which the United States agreed to urge the various States to make laws permitting aliens to acquire real estate, which provisions he considers useless, he says: "If the treaty had expressly declared that French subjects may have full powers and rights to acquire and hold lands in any part of the United States, such compact would have overridden, in favor of Frenchmen, any state law forbidding aliens to acquire and hold real property. And such compact would have executed itself; it would have become part of the supreme law of the land; it would have required no congressional sanction; state courts would have been bound to give it force. In fact, the treaty of 1794, between Great Britain and the United States, contained a provision identical in principle with the one supposed; for the citizens of each country were allowed to hold and inherit lands held by them or their ancestors in the other country prior to the Revolution. It is, therefore, possible at the present day for a British subject to inherit lands § 269. stitutional Law, §§ 679, 681, pp. 569

1 Pomeroy's Introduction to Con--571.

in the United States, notwithstanding the laws of the particular state in which they are situated may deny to an alien this capacity. The validity of the stipulation has been repeatedly recognized and affirmed by the national and state courts, and many existing titles are based upon it."1

§ 271. Views of Story, Iredell and Pomeroy identical as to State statutes and treaty stipulations. Thus we have the evidence of Story, Iredell' and Pomeroy, three eminent authorities on constitutional law, that the very object of Article VI was to do away forever with the policy of urging legislation upon the States, which had been adopted with such mortifying results by the framers of the Treaty of 1783, and that it was undoubtedly the intention of the framers of the Constitution to obviate such difficulties, and for that purpose the clause making treaties binding upon the States and superior to their laws and constitutions was incorporated in the instrument.3

§ 272. Chancellor Kent's opinion. To any question, regarding the fundamental law of this country answer can almost always, if not always, be found in the Commentaries of Chancellor Kent; his views on the treaty-making power of the United States leave little room for doubt either as to the existence of that power, or as to its extent. In Lect. XIII he says: "The President has also the power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.

"Writers on government have differed in opinion as to the nature of this power, and whether it be properly, in the natural distribution of power, of legislative or executive cognizance. As treaties are declared by the Constitution to be a part of the supreme law of the land, and as by means of them new relations are formed and obligations contracted, it might seem to be more consonant to the principles of republican government to consider the right of concluding specific terms of peace as of legislative jurisdiction. This has generally been the case in free governments. The de

terminations respecting peace, as well as war, were made in the public assemblies of the nation at Athens and Rome, and in all the Gothic governments of Europe, when they first arose out of the rude institutions of the ancient Germans. On the other hand, the preliminary negotiations which may be required, the secrecy and despatch proper to take advantage of the sudden and favorable turn of public affairs, seem to render it expedient to place this power in the hands of the executive department. The Constitution of the United States has been influenced by the latter more than by the former considerations, for it has placed this power with the President, under the advice and control of the Senate, who are to be considered, for this purpose, in the light of an executive council. The President is the constitutional organ of communication with foreign powers, and the efficient agent in the conclusion of treaties; but the consent of two thirds of the senators present is essential to give validity to his negotiations. To have required the acquiescence of a more numerous body would have been productive of delay, disorder, imbecility, and probably, in the end, a direct breach of the Constitution. The history of Holland shows the danger and folly of placing too much limitation on the exercise of the treaty-making power. By the fundamental charter of the United Provinces peace could not be made without the unanimous consent of the provinces; and yet, without multiplying instances, it is sufficient to observe, that the immensely important and fundamental treaty of Munster, in 1648, was made when Zealand was opposed to it; and the peace of 1661, when Utrecht was opposed. So feeble are mere limitations upon paper,-mere parchment barriers, when standing in opposition to the strong force of public exigency."1

In referring to Chancellor Kent's views in regard to the extent of the treaty-making power of the United States, Professor Woolsey in his "International Law says: "An interesting inquiry here arises, whether the treaty

§ 272.

1 Commentaries on American Law, by James Kent, vol. I, 12th edition edited by O. W. Holmes, Jr.

and 14th edition edited by John M. Gould, Boston, 1896, p. 346 (*284) and see also the notes to that page.