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



of any of the powers committed by the Constitution to Congress are 

 concerned, Congress alone has any power in the premises," and no 

 , treaty has any domestic force " in the sense intended by the Consti- 

 tution when it says a treaty is the supreme law of the land." " To 

 be that," adds Professor Mikell, " it must be sanctioned by an Act 

 of Congress. "^°- How is it possible — the question obtrudes itself — 

 for these views to be put forward? One superficial explanation 

 might be that, in an essay on this subject covering fifty-nine printed 

 pages, Professor Mikell lias deemed it unnecessary to discuss a single 

 one of the cases analyzed above, beginning with United States z's. 

 Schooner Peggy, and Foster & Elam z^s. Neilson, decided in 1801 

 and 1829 respectively, and ending with Johnson vs. Browne, decided 

 in 1907.^^^ And it will hardly be proper to do otherwise than assume 

 that the members of Congress who spoke on the subject were 

 familiar with these cases. But the determining reason lies deeper 

 and resides in a confusion of thought and an overlooking of a dis- 

 tinction already indicated. Article VI. of the Constitution deals 

 with individual rights secured by treaty provisions and not with 

 national questions. In this national aspect, it is to the political side 

 of the government that questions respecting treaties address them- 

 selves, and with those, as we have seen, the Courts can have nothing 

 to do: Article VI. of the Constitution has no application. So with 

 the acquisition and cession of territory ; so with treaties undertaking 

 in the form of a contract that something shall be done. It is for 

 Congress to meet the national obligation, or, in a grave issue, to 

 exercise its discretion in repudiating the undertaking of the govern- 

 ment and disavowing its treaty obligations. So formally and avow- 

 edly in 1798 did Congress act respecting the treaties with France, so 

 in efifect did Congress act, as has been seen, in regard to the treaty 

 with China. And it is likewise true that in questions of taritT duties, 

 afifecting the nation vitally and creating as well individual rights and 



^'"'American Law Register, Vol. 57, p. 456. 



'^^Of them, Mr. Mikell only mentions one — Geofroy vs. Riggs — as au- 

 thority for a definition, two others — The Cherokee Tobacco, and Head Money 

 Cases — to make from them quotations in a note, and two more — Whitney vs. 

 Robertspn, and Taylor vs. Morton — as authority for the fact that an act of 

 Congress may repeal a treaty. 



