stained from receiving Texas in any capacity until that State had established its independence of Mexico beyond all question; that independence had been fully established as a fact the most extreme exponents of that school endeavored to form a constitution for themselves, they not only placed no limitations upon the power, to be exercised by the President and Senate, but they also made treaties the supreme law of the land, and binding upon the Judges in every State, exactly as provided in the Constitution of the United States; in the limitations upon the States while permitting them to lay certain tonnage duties, they especially provided that they must not in any way conflict with the treaties made by the Central Government. If the maxim "Imitation is the sincerest flattery" is true, there can be no doubt that the framers of the Constitution of the so-called Confederate States of America paid the highest possible compliment, not only to the framers of the Constitution of the United States but also to those judges of the Supreme Court who had, on repeated occasions, sustained the treaty-making power of the United States as being the supreme law of the land and paramount to the laws of any State of the Union conflicting therewith.

§ 131.

1 See special message of President Andrew Jackson, to Congress, December 21, 1836, in regard to the then contemplated recognition of Texas as an independent State, which he concludes as follows:

proved beyond cavil or dispute the ability of the people of that country to maintain their separate sovereignty and to uphold the Government constituted by them. Neither of the contending parties can justly complain of this course. By pur"The title of Texas to the terri- suing it we are but carrying out tory she claims is identified with the long established policy of our her independence. She asks us to Government-a policy which has acknowledge that title to the ter-secured to us respect and influence ritory, with an avowed design to treat immediately of its transfer to the United States. It becomes us to beware of a too early movement, as it might subject us, however unjustly, to the imputation of seeking to establish the claim of our neighbors to a territory with a view to its subsequent acquisition by ourselves. Prudence, therefore, seems to dictate that we should still stand aloof and maintain our present attitude, if not until Mexico itself or one of the great foreign powers shall recognize the independence of the new Government, at least until the lapse of time or the course of events shall have to increase the prosperity and

abroad and inspired confidence at home. Having thus discharged my duty, by presenting with simplicity and directness the views which after much reflection I have been led to take of this important subject, I have only to add the expression of my confidence that if Congress shall differ with me upon it, then judgment will be the result of dispassionate, prudent, and wise deliberation, with the assurance that during the short time I shall continue connected with the Government I shall promptly and cordially unite with you in such measures as may be deemed best fitted

for at least eight or nine years before the resolutions were adopted for the annexation and admission of Texas as a State. When Texas became one of the States of the Union, therefore, it was not the act of a revolting province accomplished with the aid and assistance of a government which should have remained neutral, for the United States had so remained during the Texan war for independence. The war between Texas and Mexico had resulted in Texas establishing its own government based upon the sovereign will of its people, and the government so established was, in 1845, exercising full and uncontrolled sovereignty over the Territory embraced in the boundaries of the Republic of Texas. The annexation of Texas was the result of proper action, properly taken, by two sovereign powers, each of which was fully able to contract with the other, as neither owed any allegiance to, or were under the control of, any other government or power which could place any limitations upon its action.

§ 132. General application of principles.-These same principles apply to all States exercising control over other powers by virtue of a confederation in which a central government has been created, or where the central and sovereign power has acquired control, or ownership of colonial possessions, or has assumed the protectorate over territory which has parted with any portion of its sovereignty, although in the last instance the exercise of the treaty-making power by either the protecting or protected state in regard to the relations of the latter with other foreign powers must necessarily be determined to a large extent, if not entirely, by the terms of the protectorate.

133. Power only to be exercised by governments possessing complete sovereignty.-The proposition, therefore, which is stated at the outset of this chapter, that the treatymaking power is an attribute of sovereignty, and can only be exercised by a government possessing every element of nationality and sovereignty, is demonstrated by historical and legal precedents and by the opinions of the most eminent writers upon this subject. It can also be stated that perpetuate the peace of our fa- | SON." Richardson's Messages of vored country. ANDREW JACK- the Presidents, vol. III, pp. 268-269.

the treaty-making power is a necessary accompaniment to the exercise of complete sovereignty and nationality; furthermore it cannot, without the greatest injury to both the central and constituent governments, ever be exercised by any power which does not possess every element of sovereignty. Treaty stipulations can only be maintained and enforced by a governing power which possesses every such element of sovereignty. This applies not only to the en

§ 133.

1The effect of negotiating treaties with Indian tribes was so disastrous that the United States finally stopped it by act of Congress. This will be referred to at greater length in chapter XIV which is devoted exclusively to Indian treaties (see § 403 et seq. Vol. II). The compilation of Indian treaties (U. S. Government Printing Office, 1873), shows that all sorts of contracts, deeds and agreements, not only with dependent Indian nations, but also with subordinate tribes, and even with chiefs of Indians bands, were dignified with the title of treaties, and that an endless amount of confusion and litigation arose from this improper use of the treaty-making power. It must be noted, however, that the United States never permitted any foreign nation to make treaties with Indians; the general principle, as stated in this section, therefore, was not violated by the fact that contractual relations were entered into by the United States with dependent Indian nations, tribes and bands, and that the contracts evidencing the same were called

additional quotations will be given to close the chapter.

LAWRENCE: "Every independent member of the family of nations possesses to the full the right of sending diplomatic ministers to other states; but it belongs to part-sovereign communities only in a limited form, the exact restrictions upon the diplomatic activity of each being determined by the instrument which defines its international position. Egypt, for instance, under the Sultan's Firmans of 1866 and 1867 may negotiate commercial and postal conventions with foreign powers, provided they do not contain political arrangements; and to this condition the Firman of 1879 added the further obligation of communicating them to the Porte before they are published. In the case of the looser sort of Confederations the treaty-making and negotiating power of the states which comprise them is limited by the federal act. Thus each member of the German Confederation which existed from 1815 to 1866 was bound not to do anything in its alliances with foreign powers against the security of the Confederation or any mem2 Several eminent publicists have ber of it, and when war was deexpressed themselves on this sub-clared by the Confederation no ject; some of these opinions are member of it could negotiate referred to at an earlier point in separately with the enemy. Perthis chapter (pp. 197, et seq.); two manently neutralized states can

treaties.

forcement of treaty stipulations as to the other contracting power, but also to the maintenance, in good faith, of those stipulations by every individual and government, local or constituent, under the control, or protection, of the sovereign power which has entered into, and is bound by, the treaties. In the succeeding chapters of this volume the author hopes to demonstrate that the treaty-making power of the Central Government of the United States is not only one of the greatest powers which has been confided to it, but that it is also one which it possesses in its fullest strength, and which it is able to exert over every person and State in the Union; that this power is in conformity with international law, as well as with the constitutional and municipal law of the United States, and of every State composing the Union, and that its existence in, and its exercise by, the Central Government inures alike to the benefit of every State individually, and to the Union as a whole.

make no diplomatic agreements | tence is possessed by all independwhich may lead them into hostili- ent kingdoms. ties for any other purpose than the defence of their own frontiers. Belgium, for instance, though she took part in the Conference of London of 1867, which decreed and guaranteed the neutralization of Luxemburg did not sign the Treaty of Guarantee because it bound the signatory powers to defend the Duchy from wanton attack." Lawrence's Principles of International Law, pp. 263–264.

PHILLIMORE.

“XLVIII. The first point to be considered is, who are competent to contract a Treaty? This compe234

"A protected State may, if it has retained its sovereignty, make Treaties and Alliances, unless the power has been expressly renounced, or cannot be exercised consistently with the conditions of its protection. We have seen that States under a Federal Union may or may not, according to the terms of their confederation, be competent to enter into Treaties with foreign nations.

"No subordinate corporations in a State can be contracting parties to a Treaty with a Foreign State." Phillimore Int. Law, 3d edition, vol. II, pp. 73–75.

CHAPTER V.

TREATIES, AND THE TREATY-MAKING POWER OF THE UNITED STATES AS EXERCISED PRIOR TO AND UNDER THE CONFEDERA