320 WRIGHT— POWER TO MAKE AGREEMENTS. 



"If, then, the terms 'compact' or 'agreement' in the Constitution do 

 not apply to every possible compact or agreement between one State and 

 another, for the validity of which the consent of Congress must be obtained, 

 to what compacts or agreements does the Constitution apply? Looking at 

 the clause in which the terms 'compact ' or ' agreement ' appear, it is 

 evident that the prohibition is directed to the formation of any combination 

 tending to the increase of political power in the States, which may en- 

 croach upon or interfere with the just supremacy of the United States." ^ 



As the constitutional clause seems to place agreements with 

 foreign states in exactly the same class as agreements with other 

 states of the Union, it would seem that states might agree with for- 

 eign nations for the purchase of land, for the transit of exhibits, for 

 the removal of sources of disease, or, as in the case cited, for the 

 exact demarkation of a boundary, without congressional consent.* 

 Such agreements would have to be entirely devoid of political 

 significance, and Congress would doubtless be the ultimate judge on 

 that point. Acquiescence by Congress in such a compact would 

 be considered tacit consent, as was explained in the case just quoted, 

 but if Congress subsequently denied the validity of a compact, 

 thereby indicating its belief that the compact was one to which its 

 consent was necessary, the courts would undoubtedly follow its 

 interpretation of a " political question " and hold such compact void. 

 Contracts of a purely business character between a state and a 

 foreign government, such as are involved in the sale of state bonds 

 to a foreign government, do not require the consent of Congress any 



8 Va. V. Tenn., 148 U. S. 503 ; Willoughby, loc. cit. 



^ The Supreme Court said in Fort Leavenworth R. R. v. Lowe (114 

 U. S. 541) : "It is undoubtedly true that the State, whether represented by 

 her legislature, or through a convention specially called for that purpose, is 

 incompetent to cede her political jurisdiction and legislative authority over 

 any part of her territory to a foreign country, without the concurrence of 

 the General Government," though according to this opinion she may cede 

 it to the general government itself. Willoughby {op. cit., 508, note 23) 

 suggests a possible exception " with reference to such an unimportant matter 

 as' the administration of fishing upon boundary waters." Barnett {Yale 

 L. J., 13, 23, 27) suggests that there may " properly be an autonomy in local 

 external affairs, at least as to the States bordering on Canada or Mexico, 

 just as there is a local autonomy in matters purely domestic." Butler, 

 however, doubts it. {Op. cit., I, sec. 123.) See Mathews, The States 

 and Foreign Relations, Mich. L. R., 19: 692. 



