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



It is also interesting to note in this connection that rights to admin- 

 ister the estates of aliens dying here, have been by certain treaties 

 granted by the United States to foreign consuls. No cases arising 

 from these treaty j^rovisions have reached the Federal courts, but 

 they have been the subject of State recognition.^"^ 



Having regard to the decisions following the " Insular Cases," and 

 bearing in mind the essential political and national character of the 

 problems involved, it may be fairly concluded that when the ques- 

 tion arises whether treaty provisions are subject to the constitutional 

 restrictions on Federal action contained in the body of the Consti- 

 tution and in the first eight amendments, the Supreme Court will 

 judge of each case according to what it has called "the applica- 

 bility " of the provision in question. And it may not be amiss to 

 add that political considerations will be as potent as legal in deter- 

 mining that " applicability." 



II. 



The first question presented, as we have seen, when one examines 

 into the fundamental nature of the treaty-making power is : 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? 



There is an anomaly in the treaty-making power of the United 

 States created by the Constitution which we must at this juncture 

 consider. A treaty is, primarily, and with most nations solely, a 

 contract with another sovereignty. In the United States, however, 

 by the provisions of the Constitution it may have the force of a legis- 

 lative enactment. In Article VI. it is provided : 



" This Constitution, and the laws of the United States which shall be 

 made in pursuance thereof, and all treaties made, or which shall be made 

 under the authority of the United States, shall be the supreme law of the 



^"^ On this point, see Matter of Lombrasciano, TJ N. Y. Supp., 1040 

 (1902), Matter of Fattosini, 67 N. Y. Supp., 1119 (1900), In re Wyman, 191 

 Mass., 276 (igo6), Roca vs. Thompson. 157 Cal., 552 (1910). An appeal 

 from this last case is pending in the Supreme Court of the United States. It 

 would seem that it should be reversed, unless the interpretation given to the 

 Italian treaty requires a different decision. 



