«9i2.] OF THE UNITED STATES. 283 



^ress, must fail, unless there is borne constantly in mind this funda- 

 mental distinction between the powers granted. If there be given 

 to A the power to contract with X, and to B the power to make 

 regulations on certain subjects affecting X, and to C the power to 

 make regulations on other subjects affecting X ; then what shall 

 result when the provisions of an agreement made by A with X con- 

 flict with regulations of 5 or of C? 



The fundamental nature of the cpestions which underlie an 

 examination into the treaty-making power of the United States is 

 best appreciated by the algebraic statement of the problem just 

 attempted. It will be well to restate it in equivalent concrete forms. 

 These are : 



First: When a treaty deals with a subject upon which Congress 

 is authorized to legislate, is such treaty valid? or perhaps we should 

 rather ask, what is its status? 



Second: When a treaty deals with a subject upon which the 

 States as opposed to Congress are authorized to legislate, is such 

 treaty valid ? or perhaps we should rather ask, what is its status ? 



On the correct answer to these two fundamental questions must 

 depend any understanding of the status and efficacy of the treaty- 

 making power of the United States. The Federal government as 

 an entity can alone make treaties. Such is the emphatic provision 

 of the Constitution. There is therefore no distribution of the treaty- 

 making power between the Federal government on the one hand and 

 the several States, on the other, as is the case with the executive, the 

 judicial, and the legislative power. An executive act may be by a 

 State governor or by the President, a court decree may be that of 

 a State or a Federal court, a statute may be the act of a State legis- 

 lature or of Congress. If a treaty is to be made, it is the United 

 States alone which must make it; no State may make it or join in it. 

 In this sense therefore the power of the United States to make 

 treaties is unlimited. There remains however a field of contro- 

 versy of far more intricate and important significance; the field 

 already indicated, created when the treaty made with a sovereign 

 party (or individual rights maintained or secured by the treaty) 

 impinges on certain subjects committed to Congress, it may be, or 



