referred only to the provisions of the Constitution which were applicable and not to those which were inapplicable." The Chief Justice and Justices Harlan, Brewer, and Peckham dissented. Said Mr. Justice Harlan in a learned and earnest opinion:

[The principle underlying the decision of the majority of the Court] "would place Congress above the Constitution. It would mean that the benefit of the constitutional provisions designed for the protection of life and liberty may be claimed by some of the people subject to the authority and jurisdiction of the United States, but cannot be claimed by others equally subject to its authority and jurisdiction. . It would mean that, if the principles now announced should become firmly established, the time may not be far distant when, under the exactions of trade and commerce, and to gratify an ambition to become the dominant political power in all the earth, the United States will acquire territories in every direction, which are inhabited by human beings, over which territories, to be called 'dependencies' or 'outlying possessions,' we will exercise absolute dominion, and whose inhabitants will be regarded as 'subjects' or 'dependent peoples,' to be controlled as Congress may see fit, not as the Constitution requires, nor as the people governed may wish. Thus will be engrafted upon our republican institutions, controlled by the supreme law of a written constitution, a colonial system entirely foreign to the genius of our Government and abhorrent to the principles that underlie and pervade the Constitution. It will then come about that we will have two governments over the peoples subject to the jurisdiction of the United States, one existing under a written Constitution, creating a government with authority to exercise only powers expressly granted and such as are necessary and appropriate to carry into effect those so granted; the other, existing outside of the written Constitution, in virtue of an unwritten law to be declared from time to time by Congress, which is itself only a creature of that instrument.' In Dorr vs. United States, the decision in Hawaii vs. Mankichi is approved and followed. The court lays down the following principle as controlling:

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"Until Congress shall see fit to incorporate territory ceded by treaty into the United States, we regard it as settled by that decision that the territory is to be governed under the power existing in Congress to make laws for such territories and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation."'98

"See also the case of Rassmussen vs. United States, 197 U. S., 516 (1905), wherein the constitutional provisions were declared to be applicable to Alaska.

These decisions certainly find their sanction in political rather than in historical considerations. The question of the government of essentially colonial territory is a political not a legal question. The Supreme Court of the United States have therefore declared Congress to be the power which must judge and determine the applicability of constitutional provisions. Wise such action may be politically; but logically analyzed, to do this is to put Congress, the creature of the Constitution, above the Constitution.

The relation between the foregoing decisions and the applicability of the first eight amendments to the treaty-making power is not immediate. Yet, it will be readily concluded that if territory may be acquired by the treaty-making power without subjecting the government of that territory to constitutional provisions except by the action of Congress, such provisions can hardly be said to restrain the treaty-making power. The case of In re Ross is of interest to us here. Therein, an English subject.serving as a seaman on an American vessels, was tried for murder before a consular court sitting in Japan under the provisions of a treaty with that country, and was convicted. The trial was not in accordance with constitutional requirements. The Supreme Court held that since he was an American seaman, his nationality was immaterial, and that the Constitution was not ordained for countries outside the United States and could have no operation in another country. Said the Court:

"The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein. . . .

"The framers of the Constitution, who were fully aware of the necessity of having judicial authority exercised by our Consuls in non-christian countries, if commercial intercourse was to be had with their people, never could have supposed that all the guarantees in the administration of the law upon criminals at home were to be transferred to such consular establishments, and applied before an American who had committed a felony there could be accused and tried."100

It is also interesting to note in this connection that rights to administer the estates of aliens dying here, have been by certain treaties granted by the United States to foreign consuls. No cases arising from these treaty provisions have reached the Federal courts, but they have been the subject of State recognition.101

Having regard to the decisions following the " Insular Cases," and bearing in mind the essential political and national character of the problems involved, it may be fairly concluded that when the question arises whether treaty provisions are subject to the constitutional restrictions on Federal action contained in the body of the Constitution and in the first eight amendments, the Supreme Court will judge of each case according to what it has called "the applicability" of the provision in question. And it may not be amiss to add that political considerations will be as potent as legal in determining that "applicability."

II.

The first question presented, as we have seen, when one examines into the fundamental nature of the treaty-making power is: When a treaty deals with a subject upon which Congress is authorized to legislate, is such treaty valid? or perhaps we should rather ask, what is its status?

There is an anomaly in the treaty-making power of the United States created by the Constitution which we must at this juncture consider. A treaty is, primarily, and with most nations solely, a contract with another sovereignty. In the United States, however, by the provisions of the Constitution it may have the force of a legislative enactment. In Article VI. it is provided:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the

101 On this point, see Matter of Lombrasciano, 77 N. Y. Supp., 1040 (1902), Matter of Fattosini, 67 N. Y. Supp., 1119 (1900), In re Wyman, 191 Mass., 276 (1906), Roca vs. Thompson, 157 Cal., 552 (1910). An appeal from this last case is pending in the Supreme Court of the United States. It would seem that it should be reversed, unless the interpretation given to the Italian treaty requires a different decision.

land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." This language is unique in the efficacy it would seem to give to provisions in treaties made under the authority of the United States, and its bearing is important on the question under discussion: namely, the status of treaties made respecting subjects committed to Congress for legislation. It is apparent that the courts are contemplated as the forum wherein the treaties are to be recognized as the supreme law of the land. It is apparent likewise that it is individual rights secured by treaties which the courts are to be open to enforce. With political questions arising under treaties, the judiciary could have nothing to do. Thus, this clause of the Constitution is not applicable to the problem of the necessity of congressional action when an appropriation is essential to make payment for territory purchased under treaty. The judiciary could not assume to force action by Congress, nor to usurp its functions. Neither is the clause applicable with respect to the acquisition or cession of territory. These national questions are political, and are not properly for the judiciary.

We turn therefore away from the examination of these solely political problems to that of individual rights—though political considerations will still intrude themselves. The true line of approach is through the proper interpretation and application of Article VI. of the Constitution. Professor Mikell is very clear and precise in his view of the meaning and effect of this article.

"So far," he says, as the domestic or intraterritorial effect of the exercise of any of the powers committed by the Constitution to Congress are concerned, Congress alone has any power in the premises. But Congress has no power to treat with foreign nations, hence when any of these powers vested in Congress are to be exercised in agreement with a foreign power, the agreement with such foreign nation must first be completed by the treatymaking power, but this agreement, though it is a treaty in the meaning of that word as used in international law, is not a treaty in the sense intended by the Constitution when it says a treaty is the supreme law of the land. To be that it must be sanctioned by an act of Congress.'

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102"The Extent of the Treaty-making Power of the President and Senate of the United States," by William E. Mikell, U. of P. Law Review and American Law Register, Vol. 57, p. 456.

Again, this same position is more conservatively suggested by another essayist who says, speaking of the Supreme Court of the United States:

"It is still open for that Court to hold that no treaty dealing with matters entrusted to Congress is self-executing.'

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If such statement be accurate, it is not because the Supreme Court has failed to discuss the question. In a series of cases about to be considered, the interpretation and application of Article VI. of the Constitution were flatly before the court. This analysis should determine the openness of the question whether or not treaties have the force of law when dealing with subjects committed to Congress.

Before entering upon this analysis, however, it may be well to record a contemporary interpretation of this clause which has come down to us. George Mason was a member of the Federal Convention from Virginia and was one of those who declined to sign the Constitution. He issued a short pamphlet giving his objections to that instrument, among which he included the operation of the treaty-making power. On this point he said:

"By declaring all treaties supreme laws of the land, the Executive and the Senate have, in many cases, an exclusive power of legislation; which might have been avoided by proper distinctions with respect to treaties, and requiring the assent of the House of Representatives, where it could be done with safety.'

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Mason was a Virginian of distinction and earnestly opposed the ratification of the Constitution by his State. He spoke frequently in the Virginia Convention, and neither in his speeches nor anywhere else in those debates, nor in the debates in the Federal Convention, is there to be found a suggestion that Mason's interpretation of the clauses establishing the treaty-making power was not the interpretation of all.

United States vs. Schooner Peggy105 seems to have been the

103 "The Extent and Limitations of the Treaty-making Power under the Constitution," by Chandler P. Anderson, American Journal of International Law, Vol. 1, Part II (1907), p. 654.