318 WRIGHT— POWER TO MAKE AGREEMENTS. 



the McLeod case in 1842.^°^ At present legislation provides for 

 demanded. Such a reparation was demanded by Great Britain in 

 release in such cases on habeas corpus to the federal courts.^"* 



CHAPTER XIV. 



The Power to Make International Agreements. 



156. Power of the States to Make Agreements with Consent of 

 Congress. 



The courts have never pointed out the exact distinction between 

 " Treaties, Alliances, and Confederations/' which the states cannot 

 make at all and "compacts and agreements," which they can make 

 with the consent of Congress,^ though Professor Hall has suggested 

 that the latter refers to " trifling and temporary arrangements be- 

 tween States and foreign powers without substantial political and 

 economic effect." ^ In 1842, Chief Justice Taney held, in an evenly 

 divided court, that the extradition of a criminal, by the governor 

 of Vermont to Canada, would be an " agreement " with Canada, 

 which the state could not make without consent of Congress. The 

 term, "agreement," he thought must be construed so as "to pro- 

 hibit (without consent of Congress) every agreement, written or 

 verbal, formal or informal, positive or implied, by the natural under- 

 standing of the parties."^ Taney's view was endorsed by the full 

 court forty-four years later in United States v. Rauscher.* 



There do not appear to have been any " agreements or com- 

 pacts " made with consent of Congress, by states of the Union 

 with foreign states, though following the " Aroostook War," in 

 1839, on authority of the Secretary of State, the Governor of 

 Maine, and the Lieutenant-Governor of New Brunswick concurred 

 in a modus vivendi, pending settlement of the boundary contro- 

 versy,^ and the consent of IMaine and of Massachusetts was gained 



102 Moore, Digest, 2 : 24-30. 



103 Rev. Stat, sec. 753 ; Comp. Stat., sec. 1281. 

 1 U. S. Const., Art. I, sec. 10, cl. i, 3. 



^ Proc. Acad, of Pol. Sci., 7: 555. 

 3 Holmes v. Jennison, 14 Pet. 540. 

 ■* U. S. z'. Rauscher, 119 U. S. 407. 

 5 Crandall, op. cit., p. 144. 



