and definite terms in article 1, section 8, seventeen specific grants of power to Congress, relating to as many different subjects, and then in the same section provides that Congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitation in the government of the United States, or in any department or officer thereof." These specific grants of power to Congress are as much a part of the Constitution as is the grant of the treaty power to the President and the Senate.

It is conceded on all hands that the legislative power of appropriating money, belonging to the United States, is exclusively vested in Congress. Article 1, in section 9, declares that "no money shall be drawn from the treasury but in consequence of appropriations made by law." This places all the funds of the government under the supreme and exclusive custody and control of Congress. Not a dollar can be drawn from the treasury for any purpose, except by its legal appropriation. If then the President, with the approval of the Senate, makes a treaty which stipulates for the payment of money by the United States, he enters into a contract which he cannot execute, and which cannot be executed at all without the legislative consent of Congress, including that of the House of Representatives. The presumption is that the Senate, having approved the treaty, will give its consent. What shall the House of Representatives, as a necessary and independent participant in appropriating money, do in the promises? What has it a right to do in the exercise of the power bestowed upon it, jointly with the Senate, by the Constitution? If we adopt the theory that it is absolutely bound by the action of the treaty power, and that it may not and must not deliberate upon the propriety or impropriety of making the appropriation, then its function ceases to be legislative, and becomes simply ministerial.

The existence of the treaty may be a very weighty reason why the House of Representatives should give its assent to the needed appropriation of money. But if it has no right to dissent, to deliberate and judge, and in the end act upon its own judgment, then the action of the treaty power displaces it from the position assigned to it by the Constitution. Its character as a distinct and independent participant in legislation would in this case be destroyed. It would have no will of its own on the subject, and would have no right to have such a will, and would be bound hand and foot by the treaty power. It is not to be supposed that the Constitution, in the general grant of this power, intended such a result; and if not, then no treaty that pledges the United States to pay money can be regarded as one of "perfect" obligation in this particular, until it has the assent of Congress to this feature.

The taxing power is given to Congress in the provision that it shall have power "to lay and collect taxes, duties, excises and imposts," with the qualification that "all bills for raising revenue shall originate in the House of Representatives." Such bills have uniformly been construed to mean bills for the imposition of taxes. If the President makes a treaty involving the subject of taxation and the raising of revenue thereby, then the contract, as to its subject-matter, relates to that which by the express language of the Constitution has been specifically assigned to Congress, and in the first step of the process, to the House of Representatives. That it was not the purpose of the Constitution to delegate the taxing function to the treaty power, and thus enable it to change the revenue laws of the United States, independently of the will of Congress, is evident from the fact that this function is in express and specific terms assigned to Congress, and is not in such terms assigned to the treaty power. Any construction of the treaty power which supersedes this specific grant of legislative power to Congress, or in

terferes with it, or impairs the freedom and independence of its exercise, must be contrary to the intent of the Constitution itself. A grant of power to make treaties, given in general terms, is not to displace or control the taxing power of Congress, given in specific and definite terms. If the President makes a treaty relating to this subject, then it is and must be the constitutional province of Congress, upon its own responsibility, and in the exercise of its own judgment, to decide whether the treaty shall in this respect go into effect or not; and until it has affirmatively decided this question, the treaty is simply a contract made by the President and the Senate, and dependent for its execution upon the will of Congress.

The same method of reasoning may be applied with reference to the other express and specific powers of Congress as the power to borrow money, to regulate commerce, to coin money, to fix the standard of weights and measures, to declare war, to raise and support armies, and to provide and maintain a navy. These are definite powers. It is the will of the Constitution, given in express language, that Congress should exercise these powers upon the subjects to which they relate. The fact that the President has negotiated a treaty with a foreign government in relation to any or all of these subjects does not change these substantive and express powers as vested in Congress. They are as real after as before the treaty. It is for the two houses of Congress to decide in what manner they shall be exercised. If the President has stipulated for a given manner of exercising any one or more of these powers, then he has made a pledge which only Congress can fulfill; and whether it shall do so is a question for its discretion in the exercise of its own powers. The President, upon any other supposition, might through treaty making absorb nearly the whole power of Congress, and thus reduce to a nullity specific and express grants of legislative power.

The power to declare war and to raise and support armies is given to Congress, with the qualification that no appropriation of money for the support of armies shall be for a longer term than two years. Now, can the President, by a treaty of alliance and succor with one of two belligerent nations, virtually declare war upon the other, and in fulfillment of the treaty raise and support armies? Can he through a treaty exercise the war power or make it the duty of Congress to exercise this power without deliberation or judgment as to the expediency of the measure? It is enough to ask this question.

So also Congress is authorized to make all laws which may be " necessary and proper" to carry into execution its own express powers, or any other powers delegated by the Constitution to the government of the United States, or to any department or officer thereof. This enables Congress to legislate for the execution of treaties, and implies its right to judge in every case whether and to what extent the power shall be exercised. This is what legislation 'means. A legislative power that has no discretion and can exercise no judgment in regard to the subject on which it acts, but must obey the edict of another power, without any positive and separate will of its own except as the mere instrument of that power, is not in reality a legislative power at all. And yet this would be the position of Congress with reference to treaties, provided its legislative will were absolutely subject to that of the treaty

power.

That Congress has power to annul and abolish a treaty, and thus destroy its character as a law, and, if so, that it has the right to judge of the time when, the circumstances in which, and the reasons for which this power shall be exercised, admits of no doubt. Such a power inheres in every independent nation; and, under the Constitution of the United States it belongs to Con

gress, and not to the President and the Senate, except when making another treaty. Congress, exercising this power in 1798, abolished all existing treaties between the United States and France. 1 U. S. Stat. at Large, 578. If then Congress has the power to abolish treaties and render them inoperative as laws, and may exercise this power at any time, being itself the judge of the time and the reasons, how does it appear that a treaty just concluded and relating to subjects within its constitutional domain, or which cannot be executed without legislative action, supersedes all discretion on its part in the enactment of laws with reference to such treaty? Why has not Congress as much discretion in giving or withholding its legislative assent as it has in deliberating and judging whether it will or will not abolish a treaty altogether? If it can repeal a treaty then it certainly can refuse its assent to one when that assent is necessary to its execution.

The conclusions derivable from the preceding argument are the following:

1. That the treaty power, though granted in general terms, and in these terms with no express restrictions upon its scope, is, nevertheless, limited and qualified by the Constitution.

2. That this power cannot supersede, invade, displace or absorb the functions expressly assigned by the Constitution to Congress, or make an absolute law for its action in their performance.

3. That where treaties are self-operating in the sense of needing no legislation for their execution, and are constitutional in their character, they are a part of "the supreme law of the land," without any action of Congress.

4. That where a treaty acts upon subjects that have becen expressly and specifically committed to Congress, or where it needs legislation in order to carry it into effect, the treaty, considered as creating an international obligation, or as becoming a law of the land, is inchoate and incomplete, until Congress shall have supplied the requisite legislation in regard to it, and that in respect to this legislation it is the right and duty of Congress to judge with as much freedom and independence as it applies to any subject upon which it legislates.

5. That the President, in making treaties which relate to matters within the legislative province of Congress or which require the legislation of Congress, for their execution, is bound by a due regard to the Constitution, to provide expressly in the treaties themselves that they shall not take effect until the necessary legislation has been supplied, and that when he omits to make such a provision the Constitution implies its presence in the powers of Congress, and thus qualifies the treaty.

6. That the refusal of Congress in the exercise of its constitutional powers to furnish the legislation necessary to execute the stipulations of a treaty in regard to matters coming within the scope of these powers, does not involve a violation of international faith, since such stipulations are not binding until they have received the legislative assent, without which the treaty itself is not to be considered a completed contract under the authority of the United States."

The legal omnipotence of treaties in the form in which Blackstone held the doctrine is not compatible with the distribution of powers made by the Constitution of the United States, and does not accord with the modern practice of Great Britain in making treaties. While the treaty power is vested in the British Crown, it is nevertheless the general practice of the Crown to provide in cases, where Parliament must act in order to the execution of treaties, that they shall become completed contracts only upon the condition of such action.

Mr. Todd, in his Treatise upon Parliamentary Government in England, vol. 1, p. 610, says that Parliament

"has the right to give or withhold its sanction to those parts of a treaty that require legislative enactment to give it force, as, for example, when it provides for an alteration in the criminal or municipal law, or proposes to change existing tariffs or commercial regulations." He adds that "if a treaty requires legislative action in order to carry it out it should be subjected to the fullest discussion in Parliament, and especially in the House of Commons." The day has passed in Great Britain when the Crown can say to Parliament: "Ask no questions, but pass the law, and take the royal will for the reason." If Parliament can assent to a treaty it can dissent from it; and the latter is as potential as the former. Thus the commercial articles of the treaty of Utrecht 'with France never went into operation, because Parliament refused to supply the necessary legislation. This refusal was equivalent to their nullification.

Treaties of the United States are made "under the authority of the United States." This authority is given to the President, in connection with the Senate. And yet, if in the exercise of this authority he shall see fit to make treaties on subjects which the Constitution has in express terms committed to Congress, or which cannot be executed without its legislative action, then Congress is the department of the government that acts "under the authority of the United States" in supplying the requisite legislation, and in such cases it has the right to exercise this authority just as freely as does the President when he makes a treaty. Both-the one in making treaties and the other in passing laws-act under one and the same Constitution in the exercise of different powers derived from the same source.

It necessarily follows, either that the President must wholly forbear to make treaties on subjects placed within the constitutional domain of Congress, or that all treaties in reference to such subjects, and in reference to the legislation necessary to give them effect, must have the assent and cooperation of Congress before they become completed transactions or laws of the land. In no other way can the two classes of powers, both granted by the Constitution, and hence resting on equal authority, be made to harmonize with each other. The President has no more right to prescribe an authoritative rule for the legislative action of Congress than has Congress to prescribe such a rule for him in making a treaty. In each a portion of the Sovereignty of the people is constitutionally vested, and no action of either can change this fact in respect to the other.

INVESTMENT OF FUNDS BROUGHT INTO COURT.

NEW YORK COURT OF APPEALS, JUNE 15, 1880.

CHESTERMAN V. EYLAND.

In an action of partition in New York city, funds belonging to infant parties were paid to the city chamberlain and no order directing the investment thereof made. The funds were deposited in the Fulton Bank to the Chamberlain's credit, and several months thereafter were invested, with other sums held by him, in a mortgage for $10,000, upon real estate, which at the time was ample security for such sum. At the time there were taxes in arrears on the mortgaged property, which were subsequently paid by the mortgagor. Two years afterward a municipal assessment of $8,000 was made on the property, which had fallen away greatly in value, and the mortgagor abandoned paying the interest. Thereafter the mortgage was foreclosed by the chamberlain and he bid in the property for the benefit of those for whom he took the mortgage, including the infants. Held, that the investment made by the chamberlain was not in violation of his duty, and he or his successor was not liable to the infants for any loss which resulted therefrom.

A

CTION of partition. Motion for an order requiring the chamberlain of the city of New York to pay over moneys deposited with him. The opinion sufficiently states the facts.

Edward F. Brown, for appellant.

C. H. Woodruff, for respondent.

FINCH, J. In this action, which was brought for the partition of real estate, a sale was had pursuant to the judgment rendered, and the share of the proceeds belonging to Mary C. Thompson and others, amounting in the aggregate to $13,475.23, was brought into court by reason of their infancy and paid over to George W. Lane, as chamberlain of the city of New York, in trust for the infants. No order of the court directing its investment appears to have been made in the action. The money was paid to the chamberlain on December 15, 1873, and was immediately deposited by him to the credit of his account in the Fulton Bank. It apparently remained there on deposit until the 19th of March, 1874, when it was invested in a manner evidently common in the chamberlain's office, but which is criticised by the parties interested in the fund. The chamberlain held a mortgage made by one Edward Jones in 1867, which covered certain vacant lots in the city of New York, and having been originally given for $15,000 had been reduced to $10,000 and a portion of the lots released. On the 19th of March, 1874, the chamberlain was ordered to pay over certain moneys, in the suit of Robins against Robins, to the persons entitled, and desiring to keep this Jones mortgage and certain others in which the moneys had been invested, he used the moneys deposited in this case to make the payments required, crediting the suit now before us with an equivalent interest in the Jones mortgage, and practically transferring to himself, in trust for the infants in this case, an interest in such mortgage to the amount of $4,101.25. The balance of the fund was thereupon deposited in the trust company, where it remained until the following May, when it was invested in a similar manner and by the same process in certain other mortgages held by the chamberlain. At the time of this investment in the Jones mortgage, taxes upon the mortgaged property to the amount of something over $700 were in arrears, but the fact was unknown to the chamberlain, and when afterward discovered, the amount necessary to pay them was called for and they were paid in full. There is no reason to doubt the sufficiency of the Jones mortgage as a security for the sum unpaid upon it at the time of this transaction. The interest was promptly paid, the obligor in the bond was responsible, and in February, 1875, this mortgage, with others, was delivered over by Mr. Lane, at the close of his term of office, to J. Nelson Tappan, the present city chamberlain. While it remained in his hands a severe depreciation in value of real estate ensued, and in 1876 an assessment of more than $8,000 was imposed upon the property, with the usual ruinous effect to the parties interested. The mortgagor abandoned the payment of interest, and the present chamberlain, acting on his own impression of duty, foreclosed the mortgages, bid the property in for $8,000, and now holds it at the risk and for the benefit of those whose funds went into the investment. The taxes remain unpaid, and the result is substantially a total loss of a fund which the court took from the infants for the purpose of its safety and preservation.

Mary C. Timpson, becoming of age, called for her money, and being unable to obtain it, moved at Special Term for an order requiring the late and the present chamberlain to pay it over to her. That motion was denied; the denial affirmed at the General Term and an appeal taken to this court.

The right to compel Lane or Tappan to pay this money is founded upon allegations that their treatment of the fund committed to their care was unau

To

thorized by law and in violation of their duty. establish this it is strenuously argued that in the absence of an explicit order of the court to invest the fund in bond and mortgage they had no right to do so, and should have deposited the money in the authorized trust companies. In case of partition it is provided (2 R. S. 327, §§ 64, 68, 70) that where any of the known parties are infants the court may, in its discretion, direct the share of such infants to be paid over to the general guardian or be invested in permanent securities, at interest, in the name and for the benefit of such infant; that when the security is directed to be taken otherwise than in the name of a known owner, it shall be taken in the name of the clerk, and his successors in office; and that the investments when made shall be in the public stocks of the State or the United States, or in bond and mortgage upon uniucumbered real estate of at least double the amount of the loan in value. Such investment being once made the security is not to be discharged, transferred or impaired without the order of the court, entered in its minutes.

These provisions evidently contemplate a case where the court, by an order in the action, directs an investment. They perhaps assume that such direction will be given but do not purport to furnish a rule to control the action of the officer in the absence of a special direction by the court. This difficulty was met aud remedied by rule 180 of the Court of Chancery, that where no direction for the investment of funds paid into court is contained in the decree, and the money is not applied for within six months thereafter, it shall be the duty of the register, assistant register or clerk, with whom the same is deposited, and without any special order for that purpose, to cause it to be invested in public stocks or other permanent securities, and a similar duty was imposed as to accumulation of income. Thus both cases were provided for. Where special direction in the suit itself was given, that order furnished the guide. Where such direction was omitted, the chancery rules required the officer to invest according to its terms. That rule has survived the changes of recent legislation and is still operative. When the Court of Chancery was abolished and its jurisdiction and duties imposed upon the Supreme Court, the Judiciary Act of 1847, which directed the change (Laws of 1847, ch. 280, § 71) and vested the securities brought into the Court of Chancery in the clerk of the Court of Appeals, was careful to preserve the rules of the older tribunal respecting the deposit and investment of such funds, subject only to the rules and regulations that might thereafter be prescribed by the Supreme Court. The act of 1848 (ch. 277) worked no other change than to substitute the county treasurers, and in the city of New York, the chamberlain, in the place of the clerk of the Court of Appeals, as custodians of this class of trust funds.

It is claimed, however, that the rules of the Supreme Court have abrogated rule 180, and prescribed for the county treasurers a different duty (Rule 83 of 1849; Rule 79 of 1852; Rule 81 of 1858; Rule 82 of 1871; Rule 82 of 1874). Through all the changes of the rule referred to it steadily did but one thing. It prescribed the place of deposit of moneys that were to be deposited, and it did no more than that. It did not forbid investments in stocks and bonds and mortgages, either directly or by implication. Its entire operation is plainly limited to uninvested funds while they remain uninvested. We conclude, therefore, that rule 180 is yet in force, and furnishes the standard by which to test the action of the chamberlain, modified only by the rule of the Supreme Court as to the place of deposit.

The chamberlain deposited the moneys resulting from the sale in this action in the Fulton Bank, and kept them there for a brief period. This deposit was a violation of rule 82. But no injury resulted. The

violation was harmless. The fund was in no manner lost or diminished by that act. Soon after, a portion of the fund was invested in the Jones mortgage, and the balance deposited with the trust company, where it remained till the after investments were made.

The manner in which they were made by massing in one mortgage the moneys of different beneficiaries is complained of by the appellant. The sole objections pointed out seem to be that by this process there was a transfer of securities in violation of the statutory rule in partition, and an investment in a mortgage subject to prior incumbrances, which is equally forbidden. There was no transfer of the mortgage. It remained all the time vested in the chamberlain. He did not transfer it at all; he only changed one of the beneficiaries for whom it was held. Nor, in making this change, did he subject the moneys invested to any prior lien or incumbrance, because the interests of the other beneficiaries were vested in them earlier. Whatever the date of their interest, all stood on an equality, no one having any preference over the other, the mortgage being held for all. We cannot see any legal objection to the practice adopted in the chamberlain's office of aggregating in one mortgage the funds of several beneficiaries. The court which has supervision of these funds has been cognizant of the custom and has never forbidden it. It aids to a prompt investment of funds and has much of convenience to recommend it. No rule of law forbids it, and we are not prepared to say it should be discontinued.

It was further objected that when these funds were invested in the Jones mortgage there were taxes in arrears constituting an incumbrance upon the mortgaged property. That was true; but as soon as their existence was ascertained, the amount necessary for their payment was called for and they were discharged in full. We discover, therefore, nothing in the conduct of Mr. Lane to justify the order which was sought against him. He invested these funds, and had a right to do so. The securities chosen at the time were ample, and to all reasonable judgment, prudent and safe investments. The fund, thus intact and represented by good securities, was at the close of his term of office handed over to his successors. That ended the respon

sibility of Lane, and we see no reason to continue or prolong it. His successor, Mr. Tappan, continued to receive the interest upon these investments until the two misfortunes happened from which has come all the mischief. Real estate largely depreciated in value, and the property covered by the Jones mortgage, while falling in price, was fatally weighted by the added load of a city assessment amounting to some $8,000. The mortgagor became discouraged and defaulted in his interest. The chamberlain thereupon foreclosed the mortgage, bid in the property, and holds what the depreciation in value and the rapacity of municipal assessments has left of the investment for the benefit of the infants. It is objected that he ought not to have foreclosed this mortgage without the order of the court, and that in doing so he discharged the mortgage in violation of the statute. We do not deem this foreclosure a discharge within the prohibition of the statute. Practically the security remains the same and still vested in the chamberlain, and changed only in form, and while it would have been wiser to have asked direction of the court, we cannot say that the foreclosure was improper or illegal. The right to hold the mortgage involved both the right and duty of collecting all sums due upon it, and that in turn the right and duty of using the ordinary modes of collection. Indeed, if he had not foreclosed, but allowed the debts to accumulate without an effort to collect, it is not impossible that a just complaint might have drawn with it the consequences of negligence.

We conclude, therefore, that no remedy for the los8 exists against either Lane or Tappan. The wrong to

the infants is great. Their property has been taken from them by the law in order to protect it from harm, and the protection has ended in a total loss. There is much of shame and disgrace in a system which leaves such a result possible, but the remedy is not with us. We cannot redress one wrong by committing another. The conclusion we have reached on the merits renders it unnecessary to consider whether the motion made in this case or an action against the late chamberlain was the proper remedy.

The order should be affirmed.

STATE LAWS REGULATING REMOVAL OF DEAD BODIES VALID-CHINESE RELIGIOUS CUSTOMS.

UNITED STATES CIRCUIT COURT, DISTRICT OF CALIFORNIA, MAY 24, 1880.

IN RE WONG YUNG QUY.

A statute of California provides that a permit from local authorities shall be required for the disinterment and removal of a dead body, for which permit $10 fee shall be paid. The statute does not apply to removals from one cemetery to another in the same county. In a proceeding against a Chinese subject who disinterred and removed the body of another Chinese subject for the purpose of transportation to China, without procuring a permit, held, that the statute is not in contravention of the provision of the Federal Constitution that "Congress shall have power to regulate commerce with foreign nations (art. 1, § 2, subd. 3), or of the one that no Stato shall, without the consent of Congress, lay any duty upon exports (art. 1, § 2, subd. 2), or of that which prohibits any State from denying to any person within its jurisdiction the equal protection of the laws" (14th Amendment). Held, also, that it is not in violation of the provision of the treaty between the United States and China that "Chinese subjects in the United States shall enjoy entire liberty of conscience, and shall be exempt from all disability or persecution on account of their religious faith or worship," even though the religious sentiments of the Chinese may require that they shall remove the bodies of their deceased friends to China for burial.

HABEAS CORPUS to inquire into the legality of

proceedings in a court of the State of California, resulting in the imprisonment of the petitioner. The opinion states the facts.

George E. Bates and J. M. Rothchild, for petitioner. Crittenden Thornton, for respondent.

SAWYER, C. J. On April 1, 1878, the Legislature of California passed an act entitled "An act to protect public health from infection, caused by exhumation and removal of the remains of deceased persons," sections 1, 2, 3, 4, and 6 of which are as follows:

"Sec. 1. It shall be unlawful to disinter or exhume from a grave, vault, or other burial place, the body or remains of any deceased person, unless the person or persons so doing shall first obtain from the board of health, health officer, mayor, or other head of the municipal government of the city, town, or city and county where the same are deposited, a permit for said purpose. Nor shall such bodies or remains disinterred, exhumed, or taken from any grave, vault, or other place of burial or deposit, be removed or transported in or through the streets or highways of any city, town, or city and county, unless the person or persons removing or transporting such body or remains shall first obtain from the board of health or health officer (if such board or officer there be), and from the mayor or other head of the municipal government of the city or town, or city and county, a permit in writing so to remove or transport such body or remains in and through such streets and highways."