184 WRIGHT— LIMITATIONS UPON NATIONAL POWERS, 



U. S. I. See Re Ross, 140 U. S. 453. Further illustration seems unnecessary, 

 and it only remains to consider the application of established rules to the 

 present case. 



" Here a national interest of very nearly the first magnitude is involved. 

 It can be protected only by national action in concert with that of another 

 povi^er. The subject matter is only transitorily within the state, and has no 

 permanent habitat therein. But for the treaty and the statute, there soon 

 might be no birds for any powers to deal with. We see nothing in the 

 Constitution that compels the government to sit by while a food supply is 

 cut ofif and the protectors of our forests and of our crops are destroyed. 

 It is not sufficient to rely upon the states. The reliance is vain, and were 

 it otherwise, the question is whether the United States is forbidden to act. 

 We are of opinion that the treat}' and statute must be upheld. Gary v. 

 South Dakota, 250 U. S. 118." 



The present inability of federal courts to prosecute persons 

 within the states guilty of violating the rights of aliens guaranteed 

 by international law or treaty is not due to a limitation upon na- 

 tional power but to an insufficiency of congressional legislation.'^^ 



.50. Effect upon Power to Make International Agreements. 



The national guarantee of territorial integrity and a repub- 

 "lican form of government to the states limits the treaty power. 

 The capacity of the treaty power to cede state territory was discussed 

 in Washington's cabinet. Secretary of State Jefferson maintained 

 that " the United States had no right to alienate one inch of the 

 territory of any state " while Secretary of the Treasury Hamilton 

 took the opposite view.'^- While admission of the supremacy of 

 treaties granting Indian tribes an exclusive right in reservations 

 within the states'^^ seems to go far toward admitting the right of 

 the treaty power to alienate state territory, an actual cession was 

 not here in question. In the only case of foreign cession of state 

 territory that has arisen, the adjustment of the Maine boundary by 

 the Webster-Ashburton treaty of 1S42, the political expediency if 

 not the constitutional necessity of obtaining the state's consent 

 was admitted. The compensation to be paid Maine and Massa- 



''■i Willoughby, Am. Gonstitutional System, p. 108; Pomeroy, Gonst. Law, 

 9th ed., p. 571; Gorwin, National Supremacy, pp. 288-289; Taft. V. S. and 

 Peace, 40 ct seq., Gammons, Am. II. Int. Laiv, 11: 6; Moore, Digest, 6: 839 

 et seq. 



72 Jefiferson's Anas, March 11, 1792, Wharton, Digest, 2: 66. 



73 Worcester v. Ga., 6 Pet. 515 (1832). 



