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tional power to negotiate treaties with reference to it and to give those treaties the force and effect of law of the land becomes perfected.

At the present moment, I am informed from reliable sources, an agreement is in process of negotiation with the Dominion of Canada which will have for its purpose the extension of the provisions of the recent Weeks-McLean Migratory Bird Law to the case of birds passing from Canada. It would be difficult to distinguish such a treaty in principle from one of the sort mentioned at the opening of this paper, for the State's police power with reference to its wild game is well settled.22 The precedent will be the more precious from its origin with a State-rights Administration.

22

See e.g., Geer v. Conn. 161 U. S. 519. Mr. Henry Chase in his recent volume on Game Protection seems to think that while the Weeks-McLean Act is possibly unconstitutional as invading the police powers of the States, a treaty covering the same matter would not be open to this objection. That is a great mistake. If the reserved powers of the States restrict Congress in the exercise of its powers, then also do they restrict the national treaty-making power in its capacity to make “law of the land". My Own belief is that the Weeks-McLean Act is perfectly constitutional as an act "necessary and proper" to protect the federal timber reserves. The act is analogous to congressional legislation intended to repress crime within districts subject to Congress' exclusive power of legislation. The authors of crimes committed within such districts, forts, arsenals, etc., are often tried outside them, within State territory. But if a resident of a State should attempt to rescue the culprit in such a case he would be subject to federal law. Likewise, if a resident of a State should withhold information with reference to a crime committed within a district subject to Congress' exclusive power, he would be guilty, under the act of Congress, of misprision of felony, and punishable therefor. And examples might be multiplied: Cohens v. Va. 6

The whole question, then, is wrapped up in the phrase "genuine international concern," and this, as I have indicated, is a thing ever advancing and developing. What with cable, steamship, wireless telegraphy, and inter-oceanic canals, the world to-day is astonishingly small and the consequence is that the nations can no longer live unto themselves in the way that was earlier possible. The rise of an international police power and of an international power of eminent domain, exercisable by the fitter members in the Family of Nations, is a development clear and palpable before our eyes. The development of uniform national legislation of social character, in pursuance of international agreement, is but another phase of the broader development of international solidarity.

And it is the fundamental contention of this paper that the United States is competent to march abreast of this development.23

Wheat. 264, 424-30. Congress, whatever of its powers it happens to be exercising at any particular moment, is always the national legislature, and capable as such of giving its acts nation-wide operation,—so that they be passed in exercise of its constitutional powers. The only question with reference to the Migratory Bird Act is, then, whether its nation-wide operation is a necessary and proper measure for the protection of national property of great value. Certainly, there can be no dispute about that. The efforts of the advocates of the law, however, to bring it within the "commerce" clause seem to me rather far-fetched.

23 For further discussion of the questions above considered, see the writer's National Supremacy (Holt and Co., N. Y., 1913); also, his article on the Treaty-Making Power in the North Am. Rev. for June, 1914.

INDEX

(The list of cases indexed is incomplete.)

Acts of Congress: Alien and Sedition Laws, 55; Judiciary Act
of 1801, 57; Mann "White Slave" Act, 163; Weeks-McLean
Migratory Bird Act, 170-1. See Judiciary Act of 1789.
Adams, John: Characterizes the Congress of the Confederation
"a diplomatic body," 118; see Writs of Assistance Case.
Articles of Confederation: Declared to be paramount to State
laws, 40-1; character of government under, 83, 112-24 passim.
Baldwin, C. J. (Conn.): Doctrine of, in the Hoxie case, 167.
Bancroft, Geo. H.: Note by, on Barton's pamphlet, 125-6.
Barton, Wm.: Urges a continental convention (1781), 125.
Benton, Th. H.: Influence of his Examination of the Dred
Scott case, 141.

Blackstone, Sir Wm.: Doctrine of Parliamentary Sovereignty,
32-4, 52.

Breckenridge, Sen. Jno.: States doctrine of departmental con-
struction of the Constitution (1802), 58.

Buchanan, Pres.: Participation of, in the Dred Scott decision,
132-3.

Calhoun, Jno. C.: Theory of the Union and the Constitution,
82-4, 100-6; effect of doctrines on Constitutional Law, 166.
Campbell, J. Calhounist doctrines of, in Scott v. Sanford, 141.
Cases: Ableman v. Booth, 15. Bayard v. Singleton, 39. Bow-
man v. Middleton, 52. Brown v. Maryland, 139. Calder v.
Bull, 53. Captain Streater's Case, 30-1 Chirac v. Chirac,
168-9. Chisholm v. Georgia, 99. Commonwealth v. Caton, 73.
Cohens v. Virginia, 6, 7, 138-9. Cooper v. Telfair, 53. Dr. Bon-
ham's Case, 28-30, 68-9. Eakin v. Raub 68, 76. Employers' Lia-
bility Cases, 166-7. Geofroy v. Riggs 169. Gibbons v. Ogden,
165-6. Hauenstein v. Lynham, 168-9. Heyburn's Case, 50.
Henderson v. New York, 166-7. Hepburn v. Griswold, 153.
Holmes v. Walton, 72-3. Josiah Philips' Case, 71-2. Kam-
per v. Hawkins, 52. Knox v. Lee, 153. McClung v. Silliman,
8-9. McCormick v. Sullivant, 68. McCulloch v. Maryland, 99,
161-2. McIntire v. Wood, 173, 8-9. Marbury v. Madison, I-10,

60-1. Martin v. Hunter's Lessee, 99, 161-2. Martin v. Mott, 67,
Ogden v. Blackledge, 53-4 Ogden v. Witherspoon, 53. Min-
nesota Rate Cases, 166-7. Rahrer, in re, 166-7. Rutgers v.
Waddington, 73. Scott v. Sanford, see article on Dred Scott
Decision. Sinking Fund Cases, 153. Smith v. Alabama, 166-7.
South Carolina v. United States, 161-2. Symsbury Case, 73.
Trevett v. Weeden, 33-4, 74. United States v. Fox, 168. Uni-
ted States v. Hylton, 51. Winthrop v. Lechmere, 74-5. Writs
Wynehamer v. People, 149-51.

of Assistance Case, 29-32.

Chase, C. J.: See Hepburn v. Griswold

Regards principle of separation of powers as merely

Chase, J.
"declaratory," 53.

Catron, J.: Action in procuring the decision in Scott v. San-
ford, 132; opinion of, in that case, 142-3.

Citizenship: Source of, under the Constitution (1857), 154-5.
Coke, Sir Edw.: Theory of Fundamental Law and of Parlia-
ment's power in relation thereto, 27-9; see Dr. Bonham's
Case.

Common Law: As a source of national jurisdiction, 55.
Congress: Debates in, respecting the establishment of the De-
partment of Foreign Affairs (1789), 48-9; debate and pro-
ceeding in, on the act repealing the Judiciary Act of 1801,
57-9; debate in, on the first ten Amendments, 93-8; power of,
in governing territories, 140-1; see Acts of Congress.
Constitution of the United States: Art. III, § 2, 4-7, 14-5, 42;
Art. IV, § 2, 143; same, § 3, 140; Art. VI, par. 2, 13-4, 43,
164-8; considered as an act of popular revolution, 84-5, 98-9,
106-8; canons of the liberal construction of, fi-2; see Pre-
amble and Fifth Amendment.

Constitutional Reaction (1780-87): Phases and characteristic
ideas of, 37-41.

Constitutions: Basis of, in revolution, 34-5.

Convention of 1787: Purposes of, 37-8, 164; see Judicial Review
and Separation of Powers.

Curtis, J. Dissenting opinion of, in Scott v. Sanford, 151-2,
154-5.

Departmental Construction of the Constitution:

reviewed and criticized, 18-26, 66-8.

Departmental Discretion: Doctrine of, 60-1, 67.

Doctrine of,

Dred Scott Case: Statement of facts in, 129-30; before the

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