[207] Jefferson excepted out of the treaty-making power the delegated powers of Congress, though just what he meant by this exception is uncertain. He may have meant that no international agreement could be constitutionally entered into by the United States within the sphere of such powers, or only that treaty-provisions dealing with matters which are also subject to the legislative power of Congress must, in order to become law of the land, receive the assent of Congress. The latter interpretation, however, does not state a limitation on the power of making treaties in the sense of international conventions, but rather a necessary procedure before certain conventions are cognizable by the courts in the enforcement of rights under them, while the former interpretation has been contradicted in practice from the outset.
Various other limitations to the treaty-making power have been suggested from time to time. Thus, it has been contended that the territory of a State of the Union could not be ceded without such State's consent, see [above]; also, that while foreign territory can be annexed to the United States by the treaty-making power, it could not be incorporated with the United States except with the consent of Congress; also, that while the treaty-making power can consent to the United States being sued for damages in an international tribunal for an alleged incorrect decision of a court of the United States, it could not consent to an appeal being taken from one of its courts to an international tribunal.
The first of these alleged limitations may be dismissed as resting on the unallowable idea that the United States is not as to its powers a territorial government, but only the agent of the States. In the words of Chancellor Kent: "The better opinion would seem to be, that such a power of cession of the territory of a State without its consent does reside exclusively in the treaty-making power, under the Constitution of the United States, yet sound discretion would forbid the exercise of it without the consent of the local government who are interested, except in cases of great necessity, in which the consent might be presumed." 1 Comm. 166-167 and note. This seems also to have been substantially the view of Marshall and Story. See Willoughby, On the Constitution, I (2d ed., 1929), 575-576. The second suggested limitation, which was urged at tremendous length by Chief Justice White in his concurring opinion for himself and three other Justices, in Downes v. Bidwell, 182 U.S. 244, 310-344 (1901), boils down simply to the question of correct constitutional procedure for the effectuation of a treaty; and much the same may be said of the third alleged limitation. This limitation was first suggested in connection with the Hague Convention of 1907 providing for an International Prize Court as a result of appeal from the prize courts of belligerents. To this arrangement President Taft objected that the treaty-making power could not transfer to a tribunal not known to the Constitution part of the "judicial power of the United States," and upon this view of the matter dispensation was finally granted the United States in a special protocol whereby this nation was allowed, in lieu of granting appeals from its prize courts to the International Court, to be mulcted in damages in the latter for erroneous decisions in the former. It is submitted that President Taft's position was fallacious, for the simple reason that not even the whole American nation is entitled to judge finally of its rights or of those of its citizens under the law which binds all nations and determines their rights; and that, therefore, the whole American nation never had any authority to create a judicial power vested with any such jurisdiction. See Edye v. Robertson (Head Money Cases), 112 U.S. 580, 598 (1884). The law of nations seems of itself to presuppose a tribunal of nations with coextensive jurisdiction. Thus there is no reason why a completely independent nation like the United States may not consent to be bound by the decisions of such a tribunal without any derogation from its rightful sovereignty. And if "the authority of the United States" is the authority of the nation in the field of foreign relations—if the National Government has constitutional powers coextensive with its international responsibilities—we must conclude that such consent can be validly given through the existing treaty-making power. See Favoring Membership of the United States in the Permanent Court of International Justice, H. Rept. 1569, 68th Cong., 2d sess.
[208] 5 Pet. 1 (1831).
[209] 6 Pet. 515 (1832).
[210] Ibid. 558.
[211] Holden v. Joy, 17 Wall. 211, 242 (1872); United States v. 43 Gallons of Whiskey, etc., 93 U.S. 188, 192 (1876); Dick v. United States, 208 U.S. 340, 355-356 (1908).
[212] The New York Indians, 5 Wall. 761 (1867).
[213] The Kansas Indians, 5 Wall. 737, 757 (1867).
[214] United States v. 43 Gallons of Whiskey, etc., 93 U.S. 188, 196 (1876).