New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1902-09-03


Mr. Buffers industry is prodigious. In these
TWO bulky volumes he has gathered together
almost everything in American law and his
tory bearing even remotely treaties. He be
gins with chapters on the nature Of the United
States Government and develops the subject
from the philosophical and historical points OF
view. discussing in great detail its soVerelgnIs
and the treaty making power as an attrloute oL
that sovereignty, as well as, in It's oenhlle
form, a specific grant of the constitution win
q wealth Of citation from both statesmen and
1urists he sets forth the extent and limits Of
that power, the relations Of the different de-
partnents Of the government and the STATE
authorities to treaties, and the judicial decl-
sions in any way affecting the working or the
application Of treaties In indices Synopsis
of the recent insular cases-briefs. arguments
and decisions-and q list OF treaties coHNei
tons. protocols and proclamations are given.
In some respects the work is overdone- The
essentials are often buried in non-essentaIs-
There is little reason for devoting nearly q
hundred pages to the federal and State con-
ventions in which section after section contains
absolutely no reference TO treaties. and would
be equally appropriate in a history Of the tarlH-
Mr. Butler has really made a treatise on con-
.titutional law His righteousness sometimes
puts his personality unnecessarily in evidence
outside the dedicatory page, and the eHposl-
ton Of some OF his doctrines, especially thosS
unfolding ''inlperialistic'' views Of the consul
tuition ana criticising the opinions OF men IKE
BENJAMIN Harrison, suggests the pamphleteef
more than the writer Of dehnitive legal text
hook Nevertheless we are profoundly grateful
for these volumes. Nowhere else are the settled
laws concerning all phases Of the exercise OF
this important national power and the prln-
ciples which should govern in the settlement q
5ri,l open questions so satisfactorily set forth
MI Butler is thorough federalist de De
1ieves in the liberal construction Of the con-
stitution, and beyond that in the doctrine OF
snherent nationality and sovereignty in the
United States Government not dependent on the
constitution. Our government is indeed one OF
limited powers. especially in all its relations
with the States and their people, but il is also
the equal Of other governments. and IN all us
external relations can exercise It's sovereignty
.n the same manner and to the same extent
as anv other Even strict construction OF the
constitution gives little comfort TO the State
rights school on the question Of treaties. Inc
States are absolutely forbidden 10 make trea-
sies SO that there is possible reserved power
except in the people as a nation The grant OF
power to the central authority is made in the
broadest possible language, and, unless we are
so believe that the United States has hung up
somewhere in midair, potential sovereignty
which never can become actual we must find
If embodied in the federal government, since
81 is definitely deposited nowhere else. The
treaty making power. then, is plenary. Even
an absolute monarch could not make treaty
disposing of his nations life. and the United
States cannot make a treaty which would over
throw the government and constitution. There
ere in the nature of things limitations but Mr..
Butler thinks them underlined and not judicially
determined. Amy attempt to fix them pre-
y;Se fr-y he n has
been declared void by the courts Yet, We
think, one might easily be, if it operated solely
TO infringe on individual rights Of citizens IN
Ger the constitution. Mr.. Butler IS unnecessarily
tirnid about fixing the limit The power is
large but IL is not infnity the end of which
only be approximated. Perhaps as salts
factory g statement Of the federal view Of the
scope Of treaties ever made is that OF
Alexander Hamilton in 1874. and
prised that amid the multitude of authorities
cited by Mr. Butler. including Hamilton him
Self, this finds no place in his work Hamilton
wrote:
A power ito make treaties" granted in these
Indefinite terms extends TO all kinds OF treaties
end with all the latitude which such power
under any form of government can possess
abe power ito make" implies power to act,
suthoritatively and conclusiyely. Independent Of
the after clause, which expressly places treaties
among the supreme laws OF the land The thing
10 be made is treaty. With regard TO the OBJ
EDeCllcaIlOn,
there is OF course, carte blanche The general
proposition must, therefore be that whatever is
q proper subject Of compact between nation
and nation may be embraced by treaty be-
tween the President OF the United States with
the advice and consent Of the Senate, and the
correspondent organ Of a foreign State The
authority being general it comprises Of course,
whatever cannot be shown to be necessarily an
exception TO it.
The only constitutional exception to the power
OF making treaties is that il shall change
the constitution which results from this funda-
mental maxim; that delegated authority can
not alter the constituting act. unless so ex-
pIicitiy authorized by the constituting power
AN agent carnot new model his own commits
sion. = treaty, for example, cannot transfer
Tie legislative power TO the executive depart
raent nor the power Of the last department 10
rhe judiciary: in other words, il cannot stipu-
late Tbat the President and not Congress, shall
make laws for the United States; that the
5udges and net the President, shall command
the national forces.
While the treaty making power extends to all
subjects proper for international compacts. the
limits On the application Of treaties clearly
shown when the comparative force Of treaties
and statute laws and the right Of the House OF
Representatives to voice about carrying GER
-ain treaty stipulations into effect are consid-
Erred Harailton's view OF the conclusive author
.ty OF treaties has not prevailed Mr. Buffers
treatment Of these phases OF the question is ad-
snirable When the constitution says that
treaty is the supreme law OF the land" II does
not mean that Il overrides other federal law.
nut that il takes precedence of all State law. 1t
does not override the constitution and enable
the government indirectly 10 invade immunities
which are directly guaranteed 10 the States and
their people There is a certain debatable field
hetween those settled rights and the granted
powers to terminate international controversies
and the ability Of the United States TO fix
boundaries leaving TO foreigners territory
claimed by State is disputed. But even IN the