I9I2.] OF THE UNITED STATES. 327 



" Upon the power of the President and senate, therefore, there can be 

 no doubt. The only question is, as to the extent of it ; or, in other words, as 

 to the subject upon which it may be exerted. The effect of the power, when 

 exerted within its lawful sphere, is beyond the reach of controversy. The 

 constitution has declared, that whatsoever amounts to a treaty made under 

 the authority of the United States, shall immediately be supreme law. It 

 has contradistinguished a treaty as law, from an act of congress as law. It 

 has erected treaties, so contradistinguished, into a binding judicial rule. It 

 has given them to our courts of justice, in defining their jurisdiction, as a 

 portion of the lex terra, which they are to interpret and enforce. In a word, 

 it has communicated to them, if ratified by the department which it has 

 specially provided for the making of them, the rank of law — or it has 

 spoken without meaning. And, if it has elevated them to that rank, it is idle 

 to attempt to raise them to it by ordinary legislation. 



" It is clear, that the power of congress, as to foreign commerce, is only 

 what it professes to be in the constitution, a legislative power — to be exerted 

 municipally, without consultation or agreement with those with whom we 

 have an intercourse of trade. It is undeniable, that the constitution meant 

 to provide for the exercise of another power relatively to commerce, which 

 should exert itself in concert with the analogous power in other countries ; 

 and should bring about its results, not by statute enacted by itself, but by 

 an international compact called a treaty; that it is manifest, that this other 

 power is vested by the constitution in the president and senate, the only 

 department of the government which it authorizes to make any treaty, and 

 which it enables to make all treaties; that if it be so vested, its regular exer- 

 cise must result in that which, as far as it reaches, is law in itself — and, 

 consequently, repeals such municipal regulations as stand in its way; since 

 it is expressly declared by the Constitution, that treaties regularly made, 

 shall have, as they ought to have, the force of law."''* 



III. 



The second fundamental question presented, as we have seen, by 

 an analysis of the functions of the treaty-making power, is : When a 

 treaty deals with a subject upon which the State as opposed to Con- 

 gress are authorized to legislate, is such treaty valid? or rather, 

 what is its status? 



An historical and inductive study of the cases upon a given sub- 

 ject is beyond doubt the best method of approach toward its com- 

 prehension, when the question is one having its origin in judicial 

 precedent. But when the question be primarily one of interpreta- 

 tion of a written instrument, it becomes clear that the facts sur- 



^" Elliott's Debates, Vol. IV., pp. 276-8, Ed. of 1830. 



