198 WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 



treaty of 1794^^ and the Alaska Purchase treaty of 1867.^* The 

 Senate refused consent to a commercial treaty with the German 

 states in 1844 because of " want of constitutional competency." ^^ 

 President Jefferson himself seriously questioned .the constitutionality 

 of the Louisiana annexation treaty,^® and authorities have ques- 

 tioned the constitutionality of treaties making certain acts crimes,'^ 

 treaties of guarantee which might require war for fulfillment,^* 

 and treaties forbidding privateering.^'' But treaties on all these 

 subjects and in fact most other subjects within the delegated powers 

 of Congress have been made, regularly acted upon and applied by 

 the courts without question of constitutionality. 



" If this be the true view of the treaty-making power," said Calhoun 

 with reference to the Senate rejection of the German treaty in 1844, " it may 

 be truly said that its exercise has been one continual series of habitual 

 and uninterrupted infringements of the Constitution. From the beginning 

 and throughout the whole existence of the Federal Government it has 

 been exercised constantly on commerce, navigation, and other delegated 

 powers." *° 



Treaties of this kind often require action by Congress for 



execution and the degree of discretion Congress may exercise in 



-executing them is determined by constitutional understandings, but 



the treaty is undoubtedly valid. It does not deprive Congress of 



power but only of its full discretion in the exercise of power. 



'■60. The Delegation of Legislative Power. 



As an implication from the doctrine of separation of powers it 



IS recognized that legislative power cannot be delegated.*^ The 



33 Wharton, Digest, 2: 19; Moore, Digest, 5: 224; Crandall, op. cit., p. 

 165; Wright, Am. Jl. Int. Law, 12: 66. 



3* Moore, Digest, 5: 226-228; Crandall, op. cit., p. 175. 



■''5 Crandall, op. cit., pp. 189-190; Wright, Am. Jl. Int. Law, 12: 68. 



36 Crandall, op. cit., p. 172; Moore, Digest, 5: 225; Wright, Am. Jl. Int. 

 Law, 12: 69; Adams, History of U. S., 2: 83. 



37 For objection of Secretary of State Marcy to treaties making priva- 

 teering a crime see Moore, Digest, 2: 978; 5: 169; Wright, Am. Jl. Int. 

 Law, 12: 79-80; Crandall, op. cit., p. 242. 



38 For objection of W. J. Bryan and others see Wright, Ant. Jl. Int. 

 Law, 12: 73. 



3" Black, Constitutional Law, 1910, p. 274; Moore, Principles of Ameri- 

 can Diplomacy, p. 64. 



40 Moore, Digest, 5: 164; Willoughby, op. cit., p. 491; Wright, Am. Jl. 

 Int. Lazu, 12: 68. 



41 Field z: Clark, 143 U- S. 649; Willoughby, op. cit., pp. 1317-1332. 



