97

"ARTICLE VIII.

"The High Contracting Powers agree themselves to take, or propose to their respective appropriate lawmaking bodies, the necessary measures for insuring the execution of the present convention."

May this not be construed as obligating the Federal Government "to take" the necessary measures in such territory as it has, under the Constitution, the power "to take" measures for regulating the taking of wild game therein, and further obligating the Federal Government, not "to take," but "to propose" to the "appropriate law-making bodies”—that is, the legislatures of the several states-the necessary measures for regulating the taking of wild game within the borders of the respective states wherein the states only have the power, under the Constitution, to take such measures?

The High Contracting Powers must be held to have known that the power of the Federal Government did not extend to the taking over of a trust exercised by the state in relation to the common property of its citizens, or the enactment of mere police regulations within the limits of a state; and the language of Article VIII seems to indicate that they both knew and acted upon this knowledge.

Such construction leaves both the treaty and the laws of Missouri intact and in force. It results in holding unconstitutional only an act of Congress which was not necessarily required by the treaty, and which, under the Constitution, Congress had no power to pass.

Respectfully submitted,

FRANK W. MCALLISTER,

Attorney-General of Missouri,

JOHN T. GOSE,

Assistant Attorney-General of

Missouri,

Solicitors for Appellant.

J. G. L. HARVEY,

of Counsel.

B. HENRY ST. GEORGE TUCKER--LIMITATIONS ON TREATY POWER

(EXCERPTS)

LIMITATIONS ON THE

TREATY-MAKING POWER

UNDER THE CONSTITUTION OF THE

UNITED STATES

BY

HENRY ST. GEORGE TUCKER

FORMERLY DEAN OF THE LAW SCHOOLS OF WASHINGTON AND LEr

UNIVERSITY, AND GEORGE WASHINGTON UNIVERSITY

WASHINGTON, D. C.

EDITOR OF TUCKER ON THE CONSTITUTION

BOSTON

LITTLE, BROWN, AND COMPANY

LIMITATIONS ON THE

TREATY-MAKING POWER

INTRODUCTION

§ 1. The object of these pages is to discuss the treatymaking power under the Constitution of the United States, and define its limitations. The broader question of the scope of treaties, their construction and binding effect, is a question of international law into which the author does not propose to intrude; this field has been so amply and ably filled that it would be useless to add to it, even did it come within the limits of a treatise of this character.

My object is to present in a simple and concrete form, in the discussion in these pages, not the general power of making treaties as applied to nations, nor what ought to be the full scope of such power in the United States, but what, under the Constitution of the United States, is the power of the United States to make and ratify binding treaties.

The past fifty years has witnessed a phenomenal growth of these United States, that is alike the surprise and wonder of the world, in material development, in the arts and sciences, in statecraft, and all sociological problems. The position of the United States to-day is second to no nation in the world. The elements of power, as seen in every field of development,

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LIMITATIONS ON THE TREATY-MAKING POWER

have stimulated in the minds of many the ambition of placing the United States in the primacy of the great World Powers, and of giving them a seat at the diplomatic table of the assembled nations of the world, where the game of politics is played successfully, when proper alliances are made, and where with equal disaster, the game is played if mis-alliances are formed.

The warning of George Washington to the people of these United States against “entangling alliances" with foreign nations must not be forgotten, if we would fulfil our manifest destiny. America can have no higher or more exalted mission among the nations of the world than to work out successfully and to their fullest fruition the principles of civil and religious liberty first brought by our fathers to these shores in 1607 and planted on the banks of the River James by the Colony at Jamestown. When this shall have been successfully accomplished, the armaments of America that will exert the greatest influence in the control of the world will not be the dreadnoughts of her navy, nor the artillery of her battlements, but they will consist of those sturdy moral forces abiding with the people that uphold justice, maintain the cause of Freedom, defy tyranny and tyrants, exalt the sanctity of the law, national and international, proclaim the equality of opportunity to all, and in all things hasten the advancement of Righteousness and Peace throughout the length and breadth of this "Land of the Free and Home of the Brave."

Every patriotic American rejoices in the wonderful development of his country; in the accumulation of its wealth and its proper diffusion; in the equality of right accorded every citizen of the land; in the power to defend ourselves against the aggressions of power-domestic and foreign; and in the unlimited power for good to the whole world in the development of the principles of freedom as proclaimed in the Constitution of this Federal Republic.

Whatever of good shall come to the world from the development upon this Continent of republican ideas must come with

the recognition of the fact that this Government differs from those of the old world, and that we are here charged with the duty under our system of government of developing the maximum of freedom in thought, in speech, and in action in every citizen consistent with the same right in every other American citizen under a written constitution. Nor must we be led into error by assuming that what can be done by Great Britain or Germany or any of the great powers of the world can and should be done by us. Our Government has no parallel among the nations of the world. Our constitutional form of government, dual in character, recognizing the States and the Federal government as joint instruments in the development of all governmental powers, some of which are committed to the one and some to the other, each supreme in its sphere, cach powerless in that of the other, is difficult of interpretation and unique among the nations of the earth.

By a critical examination of the provisions of the Constitution of the United States; in the interpretation thereof by the early and modern statesmen of the country; in the opinions of judges, State and Federal; and in the adjudicated cases in their bearing upon this question, we shall hope to climinate the prevalent error of the "unlimited" and boundless scope of this power and establish what are the reasonable and constitutional "limitations on the treaty-making power" under the Constitution of the United States.