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



ton, was the British treaty of 1783, which terminated the War of the Amer- 

 ican Revolution. It was made while the Articles of Confederation subsisted. 

 The Constitution, when adopted, applied to treaties ' made and to be made.' ""^ 



In Frederickson vs. Louisiana-^* the facts are immaterial to this 

 discussion, but the Court after disposing of the case on other 

 grounds, said : 



" It has been suggested in the argument of this case, that the government 

 of the United States is incompetent to regulate testamentary dispositions or 

 laws of inheritance of foreigners, in reference to property within the States 



" The question is one of great magnitude, but it is not important in the 

 decision of this cause, and we consequently abstain from entering upon its 

 consideration."^* 



In view of the long series of cases already decided, which have been 

 analyzed above, these statements are surprising. The later case of 

 Hauenstein ■z's. Lynham, however, deprives them of practical sig- 

 nificance. 



In Holmes z'S. Jennison,^*° decided in 1840, we have voiced by 

 Mr. Justice Baldwin that idea which has since been welcome to 

 many: namely, that the treaty-making power is subject to what is 

 called the police power of the State. 



" It is but a poor and meager remnant of the once sovereign power of 

 the States, a miserable shred and patch of independence, which the Constitu- 

 tion has not taken from them, if in the regulation of its internal police 

 State sovereignty has become so shorn of authority, as to be competent only 

 to exclude paupers, who may be a burden on the pockets of its citizens ; 

 unsound, infectious articles, or diseases which may affect their bodily health ; 

 and utterly powerless to exclude those moral ulcers on the body political, 

 which corrupt its vitals and demoralize its members. If there is any one 

 subject on which this Court should abstain from any course of reasoning, 

 tending to expand the granted powers of the Constitution, so as to bring 

 internal police within the law of treaty-making power of the United States, 

 by including it within the prohibition on the States, it is the one now before 

 us. Nay, if such construction is not unavoidable, it ought not to be given; 

 lest we introduce into the Constitution a more vital and pestilential disease 

 than any principle on which the relator could be rescued from the police 

 power of Vermont, would fasten on its institutions, dangerous as it might 

 be, or injurious its effects."^^ 



We have in these words expressed in its most enthusiastic form, 



=^'■100 U. S., p. 489. ^"Ibid., p. 448. 



==^23 How., 445 (1859). '"14 Peters, 540 (1840). 



''' Ibid., p. 618. 



