I9I2.] OF THE UNITED STATES. 285 



Constitution? The answer is because neither its framers nor its 

 numerous contemporary critics ever imagined the possibility of 

 such an event. It is urged that they were right. A treaty-making 

 power is a power to make treaties. And provisions looking to the 

 accomplishment of an internal change in the government of one 

 sovereign party to a treaty, are not and could not be subjects, prop- 

 erly speaking, of a treaty. To the minds which framed the Consti- 

 tution and within the intendment of that instrument, treaties must 

 only contain provisions which in the usual and normal intercourse 

 of nations should properly become the subjects of treaties. It 

 would seem to be unnecessary, if not misleading, to seek any further 

 reason why a treaty may not make the President the presiding 

 of^cer of the Supreme Court, or deprive the State of Nevada of its 

 Senators. A colorable exercise of a power — and the word assumes 

 too much- — is not a valid exercise of the power. There is no judi- 

 cial decision to such effect; but the a priori assertion may be ven- 

 tured, that a treaty must be a treaty within the meaning of that 

 word in international usage. 



I. 



The first problem respecting the treaty-making power of the 

 United States having a wholly political character arose early in its 

 history. In 1794, the British treaty was signed. France was at war 

 with Great Britain, and the general sentimental affection of the 

 American people for France was conceived by many to be outraged. 

 The treaty was, inter alia, a treaty of commerce, and it was con- 

 sidered to operate unequally. A storm of protest burst forth which 

 reechoed over the country in resolutions denouncing the treaty. In 

 a meeting held at Richmond it was declared that the treaty was 

 " insulting to the dignity, injurious to the interests, dangerous to the 

 security, and repugnant to the Constitution of the United States."*- 

 The resolutions adopted by the legislature of \^irginia were couched 

 in more parliamentary language, but were to the same eff'ect. 

 Nevertheless, on February 29th, 1796, Washington proclaimed the 

 treaty as being the supreme law of the land. And on March ist, he 



*'ii2 U. S., p. 753- 



PROC. AMER. PHIL. SOC, I.I. 2o6 P, PRINTED SEPT. lO, I9I2. 



