§ 123. Concrete example of above principles.-To take a concrete example: Suppose that the State of New York and the Province of Ontario desired to enter into some reciprocal tween the United States and Great | appointed pursuant to an informal Britain. I. The Marcy-Elgin re- protocol made May 30, 1898. Subciprocity treaty of 1854; II. The sequently Commissioners were apTreaty of Washington of 1871, pointed to whom "full powers" which, however, related to matters were issued by their respective other than Canadian, notably the Governments. The United States Alabama claims; III. The Bayard- Commissioners were Charles W. Chamberlain fisheries treaty of Fairbanks, United States Senator 1888 which was not ratified by the from Indiana (chairman of the Senate of the United States and American Commissions); George therefore never became effectual; Gray, United States Senator from IV. There was also a joint High Delaware who resigned to act as Commission appointed in 1898 Commissioner on the Spanish which has not yet concluded any Treaty of Peace and whose place treaty but which was appointed to was filled by Charles J. Faulkner, consider Canadian matters exclu- then United States Senator from sively. West Virginia; Nelson Dingley, Maine, chairman of the Ways and Means Committee of the House of Representatives, who died in December, 1898, and whose place was filled by his successor as such chairman, Sereno F. Payne, New York; John W. Foster, Indiana, former Secretary of State and Special Commissioner to Great Britain and Russia in regard to seal fisheries; John A. Kasson, Iowa, Special Commissioner Plenipotentiary on reciprocity agreements with foreign countries and T. Jefferson Coolidge, of Massachusetts. The British Commissioners were The Right Honor

In all cases the plenipotentiaries were appointed by the Crown and held their powers from the secretary of foreign affairs. In every case the British Commissioners included Canadians, but the authority to negotiate was derived from the Imperial and not the Dominion Government.

The "full powers" of the Commissioners are headed: "VICTORIA, REG.-VICTORIA, by the Grace of God, Queen of the United Kingdom of Great Britain and Ireland, Defender of the Faith, &c., &c., &c., To All and Singular to whom these Presents shall come, Greeting:"able Lord Herschell, G. C. B., forwhether they relate to general or Imperial matters or the affairs of Colonies. See Foreign Relations of U. S. of 1873, p. 495, for a form of "full power."

merly Lord Chancellor of Great Britain (chairman of the British Commission), The Right Honorable Sir Wilfred Laurier, G. C. M. G., The Honorable Sir Richard J. Cartwright, G. C. M. G., The Honorable Sir Louis II. Davies, K. C. M. G., Mr. John Charlton, M. P., The HonorThis Commission is still in exist- able Sir James S. Winter, K. C. M. ence, although it has held no meet- G., all of whom held high office in ing since February, 1899. It was | Canada except Lord Herschell and

ANGLO-AMERICAN JOINT HIGH

COMMISSION OF 1898.

arrangement, as the to preservation of fish in Lake Ontario. Neither the State nor the Province could conclude any treaty or arrangement; nor could the State of New York and the Dominion of Canada do so; nor yet the Province of Ontario and the United States. The only possible method of obtaining the desired result would be for the representatives of His Majesty and the authorized Commissioners of the United States, either through the Foreign Office and the State Department, or by special appointees ad hoc to meet and negotiate a treaty between the United States and His BritanSir James S. Winter, the latter rep- | the delimitation and establishment resenting Newfoundland on the Commission.

Chandler P. Anderson, New York, was Secretary of the American Commission, Henri Burassa, Quebec, member of Dominion Parliament, and W. Chauncey Cartwright of the British Foreign Office were Secretaries for the British Commission. The author of this volume was attached to the Commission as legal expert (see § 445, chap. XIV, post). The Commission met in Quebec during August and September, 1898, and in Washington during October, 1898-February, 1899; it adjourned indefinitely in February, 1899, the commissioners not being able to agree upon any practical method of adjusting the Alaska boundary, and it not being deemed advisable to continue negotiations in regard to other matters until some satisfactory solution of the boundary question was arrived at. The proceedings of this Commission have not yet been published.

of the Alaska-Canadian boundary; the transit of merchandise in transportation to or from either country across intermediate territory of the other; the transit of merchandise from one country to be delivered at points in the other beyond the frontier; the alien-labor laws as applicable to the subjects or citizens of the United States and of Canada; mining rights of the citizens or subjects of each country within the territory of the other; such readjustment and concessions as may be deemed mutually advantageous, of customs duties applicable in each country to the products of the soil or industry of the other, upon the basis of reciprocal equivalents; a revision of the agreement of 1817 respecting naval vessels on the Lakes; the more complete definition and marking of any part of the frontier line, by land or water, where the same is now so insuffi ciently defined or marked as to be liable to dispute; the conveyance for trial or punishment of persons in the lawful custody of the officers of one country through the territory of the other; also any other unsettled difference referred to it

Amongst the subjects considered by the Commission were provisions in respect to the following matters: fur seals in Bering Sea and waters of the North Pacific Ocean; fisheries off the Atlantic by mutual consent of both governand Pacific coasts and in the inland, ments. waters of their common frontier;

nic Majesty. This treaty would have to be ratified by the Senate, and the ratifications thereof exchanged either in Washington or in London, or elsewhere, by express permission of the Foreign Office and the State Department, before it would become operative. After these formalities had been completed, however, it would be binding, as an international compact, upon the United States, and every State of the Union, and also upon Great Britain, the Dominion of Canada and every Province thereof; and, under the treaty-making power, and its effect upon subordinate governments, the Parliament of Great Britain or of the Dominion of Canada and the Congress of the United States could carry out the provisions of the treaty by appropriate legislation, regardless of whether such provisions were acceptable either to the State of New York or the Province of Ontario.

§ 124. Actual practice to appoint Commissioners from locality affected.-The fact that it has been the actual practice in such cases to appoint Commissioners from the territory affected, so that a treaty can be framed which will meet the requirements of the case and will be satisfactory to local interests, has given rise on some occasions to the idea that the Commissioners were the appointees of the local governments and not of the Central Government; such, however, has never been, and never can be the case so long as the written Constitution of the United States, the unwritten Constitution of the English people, and the principles of international law remain unchanged. It will be seen by examining the precedents referred to in the notes to this and the preceding sections that the relations between the United States and the Dominion of Canada, as well as of the several States forming the United States, and the several Provinces forming the Dominion, have always been negotiated, adjusted and determined by treaties concluded and ratified in this manner.1

§ 125. Territorial origin of States of the Union.—The States of the Union, other than the thirteen original States, and Texas, have all been carved out of territory which originally belonged either to some of the States individually, as was the case with Vermont, Maine, and Kentucky; from the § 124.

1 See footnote to § 122, p. 213, ante.

Northwest and other territory ceded by some of the States to the Central Government, as was the case with Michigan, Indiana and other States in the Northwest, and with Tennessee, Mississippi and other States in the South; from territory acquired by the United States by purchase from governments holding it as a colonial possession, as was the case with Louisiana, Missouri and Florida and other States carved out of the Louisiana and Florida purchases; from territory which was a part of the ceding country itself, as was the case with the States carved from the Mexican cession, such as California and Nevada; it might be said that Oregon and Washington stand on a different basis, but they never possessed any other government than that accorded to them by the United States which added them to its territory by virtue of the discovery, and occupation, of the Columbia River watershed. As the thirteen original States never had any local government which possessed, or exercised, treaty-making power,1 and as all of the other States were carved out of territory which never had any local self-government whatever, it is a self-evident proposition that the treaty-making power never existed in, or was exercised by the individual States of the Union, or for that matter by any power other than in Central or National government. This statement applies to every State and Territory of the Union, with the exception of Texas and Hawaii both of which actually were sovereign States prior to their being merged into the Union, and each of which, as a sovereign State, had exercised the treaty-making power prior to its territory becoming a part of the United States.2

$125.

1 See § 179, post.

2 That a union of the colonies into one general government, for any purpose, could not take place without the sanction of Parliament was always assumed in both countries. The sole instance in which a plan of union was publicly proposed and acted upon, before the Revolution, was in 1753-4, when the Board of Trade sent instructions to the Governor of New York

to make a treaty with the Six Nations of Indians; and the other colonies were also instructed to send commissioners to be present at the meeting, so that all the provinces might be comprised in one general treaty, to be made in the King's name. It was also recommended by the home government, that the commissioners at this meeting should form a plan of union among the colonies for their mutual protection and defence

§ 126. No State or Territory ever possessed treaty-making power except Texas and Hawaii.-None of the States or Territories composing the United States, therefore, have ever actually possessed, or exercised, any treating-making power with the exception of Texas and Hawaii.1 Prior to the Declaration of Independence the thirteen original States were still Colonies of Great Britain and as such did not possess any treaty-making power or even the right to negotiate with any foreign power, or with each other.

dictory reasons of dislike to my plan make me suspect that it was really the true medium; and I am still of opinion it would have been happy for both sides, if it had been adopted. The colonies so united would have been sufficiently strong to have defended themselves; there would have been no need of troops from England; of course the subsequent pretext for taxing America, and the bloody contest it occasioned, would have been avoided. But such mistakes are not new; history is full of the errors of states and princes.' (Life of Franklin, by Sparks, I. 178.) We may not join in his regrets now." Constitutional History of the United States, by George Ticknor Curtis, vol. 1, p. 4, note. For an abstract of the Albany Plan of Union, see McDonald's Select Charters, p. 253, et seq. § 126.

against the French. Twenty-five sachusetts, III. 23; Trumbull's Hiscommissioners assembled at Albany tory of Connecticut, II. 355; Pitin May, 1754, from New Hampshire, kin's History of the United States, Massachusetts, Rhode Island, Con- I. 140-146. In 1788, Franklin said necticut, New York, Pennsylvania, of it: The different and contraand Maryland. In this body a plan of union was digested and adopted, which was chiefly the work of Dr. Franklin. It was agreed that an act of Parliament was necessary to authorize it to be carried into effect. It was rejected by all the colonial assemblies before which it was brought, and in England it was not thought proper by the Board of Trade to recommend it to the King. In America it was considered to have too much of prerogative in it, and in England to be too democratic. It was a comprehensive scheme of government, to consist of a governor-general, or presidentgeneral, who was to be appointed and supported by the crown, and a grand council, which was to consist of one member chosen by each of the smaller colonies, and two or more by each of the larger. Its duties and powers related chiefly to defence against external attacks. It was to have a general treasury, to be supplied by an excise on certain articles of consumption. See the history and details of the scheme, in Sparks's Life and Works of Franklin, I. 176, III. 2255; Hutchinson's History of Mas

1 Both of these powers had entered into treaties with the United States and with other powers. For treaties with Hawaii see U. S. Treaty Volumes, editions 1889 and 1899, under appropriate headings; for treaties with Texas see 8 U. S. Stat. at L., pp. 510-511.