MINUTES. XV 



stipulation to be invalid on that ground, I will not now enter into 

 the general question, but will only remark that, in the case of Dillon, 

 the French consul at San Francisco, who claimed, under treaty 

 stipulation, exemption from compulsory process as a witness in a 

 criminal proceeding, it is altogether possible to maintain that the 

 incident did not result either in the establishment or admission of 

 the " international " validity of a treaty where constitutional validity 

 was lacking or in the demonstration of any conflict between the 

 particular treaty and the constitution. Whether France had or had 

 not been " informed " of the treaty-making clause of our constitution 

 seems to be a matter of little consequence. This point could easily 

 be met by handing a copy of the constitution of the United States, 

 together with a few sets of commentaries, to foreign representatives 

 as a preliminary to negotiation with them. The truth is that, al- 

 though no one has a profounder respect for Marcy's opinions than 

 I have, I do not think we are obliged to accept his contention, which 

 was not in fact carried through, that the immunity from compulsive 

 process as a witness, secured by the treaty, was in conflict with the 

 Vlth Amendment to the constitution. Conventional exemptions of 

 that character had from time immemorial been common, and we are 

 no more obliged to admit that the Vlth Amendment was or is in- 

 fringed by them than we are obliged to admit that it has been or is 

 now violated by the immunity from judicial process accorded to 

 diplomatic officers. 



In regard to what the author of the essay, following the phrase- 

 ology so often employed, discusses under the head of " congressional 

 delegation of power to make international agreements," I have long, 

 indeed I may say always, been inclined to think that no " delegation " 

 of power whatever is involved in the matter. As Congress possesses 

 no power whatever to make international agreements, it has no such 

 power to delegate. All that Congress has done in the cases referred 

 to is to exercise beforehand that part of the function belonging to it 

 in the carrying out of a particular class of international agreements. 

 Instead of waiting to legislate until an agreement has been concluded 

 and then acting on the agreement specifically, Congress has merely 

 adopted in advance general legislation under which agreements, fall- 



