218 WRIGHT— CONSTITUTIONAL LIMITATIONS. 



Jefferson wrote in his Manual of Parliamentary Practice : ^ 



" To what subjects this power extends, has not been defined in detail 

 by the Constitution, nor are we entirely agreed among ourselves, (i) 

 It is admitted that it must concern the foreign nation, party to the contract, 

 or it would be a mere nullity, res inter alios acta. (2) By the general 

 power to make treaties, the Constitution must have intended to comprehend 

 only those objects which are usually regulated by treaty and cannot be 

 otherwise regulated. (3) It must have meant to except out of these the 

 rights reserved to the states ; for surely the President and Senate cannot do 

 by treaty what the whole government is interdicted from doing in any way. 

 (4) And also to except those subjects of legislation in which it gave a par- 

 ticipation to the House of Representatives. This last exception is denied by 

 some, on the ground that it would leave very little matter for the treaty 

 power to work on. The less the better, say others." 



This statement is both erroneous and incomplete, it seems, there- 

 fore, unfortunate that it should be reprinted in both Senate and 

 House manuals without explanatory comment.® It does not state 

 all of the limitations which actually exist and the last two limitations 

 stated do not exist. The last is effectively refuted by the state- 

 ment quoted from Calhoun. The third is thus dealt with by 

 Attorney General Griggs : '^ 



" The regulation of fisheries in navigable waters within the territorial 

 limits of the several States is, in the absence of a treaty, a subject of State 

 rather than of Federal jurisdiction ; but the government of the United States 

 has power to enter into treaty stipulations on the subject, e.g., with Great 

 Britain, for the regulation of the fisheries in the waters of the United 

 States and Canada along the international boundary; and the fact that a 

 treaty provision would annul and supersede a particular State law on the 

 subject would be no objection to the validity of the treaty." 



The limitation referred to last by Justice Field and first and sec- 

 ond by Jefferson applies to the exercise of all powers in the field of 

 foreign relations. They must be bona fide directed toward the 

 conduct of international relations. Thus a purported declaration 

 of war, really designed to excuse an invasion of the residual powers 

 of the states, would doubtless be void ; though it might be difficult 

 to discover a court with sufficient temerity to declare it so, if con- 



5 Art. 52, Moore, Digest, 5 : 162. 



6 Senate, Manual, 1913, p. 149; Rules of H. of R., 1914, sec. 587, p. 252. 

 ''Griggs, Att. Gen., 22 Op. 214 (1898), Moore, Digest, 5: 161-162. See 



also supra, sec. 50. 



