AND UTTERANCES OF NATIONAL ORGANS. 155 



power acted in disregard of limitations imposed by the guarantees 

 of the Constitution in favor of individual, state or other rights.^" 



Thus in negotiation of the Webster-Ashburton treaty involving 

 a fixing of the IMaine boundary and the cession to Great Britain of 

 land claimed by that state, the British government was aware of 

 the doubt which existed as to the competence of the United States 

 treaty-making power to cede territory belonging to the state without 

 that state's consent. ' They, therefore, refused to negotiate until 

 assured by authority of the President that the constitutional diffi- 

 culty had been eliminated, an assurance which was made possible 

 by ^Maine's consent to the cession.^" So also, in 1854 France 

 contended that the United States continued bound by the provision 

 of the treaty of 1852 granting consuls immunity from compulsory 

 process to serve as witnesses, in spite of the American contention that 

 the provision was in violation of the guarantee of compulsory process 



56 " The fundamental laws of a state may withhold from the executive 

 department the power of transferring what belongs to the state; but if there 

 be no express provision of that kind, the inference is, that it has confided 

 to the department charged with the power of making treaties, a discretion 

 commensurate with all the great interests, and wants, and necessities of 

 the nation. (Kent, Commentaries, i : 166.) 



5" " The negotiations for a convention to settle the boundary question 

 can hardly be said to have made any positive progress, since last year. . . . 

 The interest of both parties, undoubtedly, requires a compromise, and I have 

 no doubt that the position which Maine has assumed is the only obstacle to 

 bringing such a compromise about. The English government can not treat 

 with us about a compromise, unless we say we have authority to con- 

 summate what we agree to; and although I entertain not the slightest doubt 

 of the just authority of this government to settle this question by compro- 

 mise, as well as in any other way, yet in the present position of affairs, I 

 suppose it will not be prudent to stir, in the direction of compromise with- 

 out the consent of Maine." (Mr. Webster, Sec. of State, to Mr. Kent, Gov. 

 of Maine, Dec. 21, 1841, Moore, Digest, 5: 174, infra, sec. 50.) The terms 

 of the agreement with Maine and Massachusetts were included in article 5 

 of the treaty with Great Britain. The same principle doubtless applies to 

 constitutional limitation upon the treaty power arising from rights guaran- 

 teed to individuals and the rights and privileges of departments of the 

 national government as well as rights guaranteed the states. The tend- 

 ency, however, has been to minimize the application of these limitations 

 and where necessity presses as in treaties of peace to end a disastrous 

 war, doubtless the ostensible authority of the executive even of a de facto 

 government would fully bind the nation. (Kent, op. cit., i: 166-167, Wright, 

 Am. Jl. Int. Lazu, 13: 249-250, infra, sec. 32.) 



