274 BURR— THE TREATY-MAKING POWER [April 20, 



subject by losing himself in the immaterial. There are great 

 enlightening constitutional cases, and a multitude of only illus- 

 trative and cumulative value. A sense of proportion must accom- 

 pany one always. Therefore in this essay, with inconsiderable 

 exceptions, the decisions of courts other than the Supreme Court 

 of the United States have been, although examined, passed over 

 without mention. And detailed analysis to show the irrelevancy of 

 certain cases in the Supreme Court, has often been omitted. There 

 remains a great wealth of significant and conclusive material. 



Mingled, however, with problems of essentially legal nature are 

 problems fundamentally political. These are, moreover, political 

 problems of the greatest magnitude in a nation's life, arising as they 

 do out of relations with the other powers of the world. By pro- 

 cesses quite other than the calm slow advance of the English race 

 toward the establishment of principles of law, will be determined 

 the political scope of the treaty-making power of the United States. 

 Sudden is the emergency, momentous the issues, on the executive 

 rests primarily the decision ; economic desiderata, party politics, the 

 shrieks of journalism, the make-weight of individual temperament 

 — one or all may influence the result ; and the treaty is signed. One 

 influence alone is not felt: the opinion of the Supreme Court of the 

 United States. Years later that Court may be heard in explanation 

 of the event, in support of it, in apology for it — never yet in the 

 nation's history has the Court been heard in its undoing. It was 

 thus when Louisiana was purchased, and Texas annexed ; likewise 

 in similar instances will it be again. So, at the beginning of this 

 essay, and in no uncertain words, it has seemed best to en- 

 deavor to bring out in bold relief the thought that in their larger 

 significance many of the problems involved in the exercise of the 

 treaty-making power are political, and only subordinately and sec- 

 ondarily legal. Conclusions may therefore be found to lack sanc- 

 tion in legal reasoning while they find it in political considerations. 

 And in attempting at times to forecast the future and suggest the 

 line of development along which the attitude of the people of the 

 United States toward the treaty-making power may proceed, such 

 political considerations must necessarily have their place. 



