proven itself equal to all emergencies in our history, care should be had that no fundamental granitic principle upon which the Government has rested securely since its foundation, should be disturbed. But, if it be found that some stone of the superstructure was originally improperly placed, or, if properly laid, has become worn by abuse or corroded by occult processes, unforeseen by the student of governmental architecture in its building, surely the hand will not be deemed impious that is lifted to adjust the misplaced stone, or that seeks with loving touch to apply some life-giving lotion to the wasted portion of this "Ark of the Covenant" of our hopes and aspirations. The Constitution has proven adequate for the development of an infant republic, as well as for the progress of a matured nation; it has weathered the storm of Civil War and its attendant evils, and we should be careful, therefore, that the changes suggested should not be organic, but functional; not fundamental, but structural. If the limitations suggested are evils, and they are upheld by the Constitution, then the Constitution should be changed unless, indeed, such changes should result in the organic and fundamental change of our whole government. We can well afford to follow President Washington on this subject when he says:

"If, in the opinion of the people, the distribution of the constitutional powers be in any particular wrong, let it be corrected in the way which the Constitution designates. But let there be no change by usurpation, for this, though it may in one instance be the instrument of good, is the ordinary weapon by which free governments are destroyed."

No less suggestive is the language of President Lincoln :

"It is my duty and my oath to maintain inviolate the right of the States to order and control, under the Constitution, their own affairs by their own judgment exclusively. Such maintenance is essential for the preservation of that balance of power on which our institutions rest."

§ 379. Let us not, therefore, be guilty of committing wrong that good may come of it. If it be argued that no restriction

$379

LIMITATIONS ON THE TREATY-MAKING POWER

of this power is compatible with national existence and national obligations, in the crises which arise in the history of every country, I would answer in the impressive language of Justice David Davis' spoken at a most critical period of our country's existence, when, combating the claim that the exigencies of the times following the Civil War demanded a broader construction of the Constitution, he said:

"No doctrine involving more pernicious consequences was ever invented by the wit of man, than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism; but the theory of necessity on which it is based is false; for the government within the Constitution has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the results of the great effort to throw off its just authority."

The settlement of America was for the avowed purpose of developing the two great principles of civil and religious liberty under republican institutions, freed from the restraint of nonarchical ideas. Our fathers brought with them the Christian religion as their religion, which has spread its benign influence from occan to ocean in its teachings of high ideals and in the diffusion of the soundest principles of morality and virtue. Under these teachings "might" does not make "right," but governmental action must be sanctioned by moral principles. Human laws and constitutions should be controlled by them, for these are made and ratified as the security for human liberty. To disregard the Constitution under the plea of supposed necessity, is to adopt the specious plea of tyrants in all ages. To abandon our Constitutional Government and supplant it with the fleeting suggestion of some supposed temporary necessity, is to deny that this is a government of law, and to accept the fallacy that it is a government of men. Should we be guilty of such folly there will most surely arise in the near future some

1 Ex Parte Milligan, 4 Wall. 109, 18 L. ed. 281.
'Author's italics.

Poct-statesman who will depict the moral delinquency of our generation in flowing verse similar in sentiment to that recorded by the ancient Latin poct, who, in describing the ethics of the Eternal City in his day, in the advice of a father to his son, said : “Rem facias, rem, si possis recte; si non, quocunque modo rem.”

DEPARTMENT OF LAW

UNIVERSITY OF
OF PENNSYLVANIA
LAW REVIEW

AND AMERICAN LAW REGISTER

FOUNDED 1852

VOL. {

57 O. S.
48 N. S. J

APRIL, 1909

NUMBER 7

THE EXTENT OF THE TREATY-MAKING POWER OF THE PRESIDENT AND SENATE OF THE UNITED STATES.

Something has been written on the extent of the treatymaking power of the President and the Senate, Little has been decided.

While the courts have frequently decided questions involving treaties, most of these decisions have been confined to the determination of the question whether a right claimed under the treaty in question was covered by the terms of the treaty, or whether such right, if within the scope of the treaty, had been taken away by subsequent legislation. A very few cases have involved a determination of the extent of the treaty-making power, and in these few the point decided is so narrow, was so inadequately, or not at all argued, or has been rendered so doubtful by dicta of later judges of the Supreme Court as to leave the whole question open.

There are only four clauses in the Constitution and its amendments, in which treaties are mentioned. The first is a prohibition on the States: "No State shall enter into any treaty, alliance, or confederation." Art. I., § 10, cl. 1. The second designates the repository of the power: "He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided twothirds of the Senators present concur." Art. II., § 2, cl. 2.

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