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meaning of the tariff act of July 24, 1897, providing for duties on articles so imported. 2. The meaning of the treaty of peace with Spain by which the Philippine islands were

ceded to the United States cannot be controlled by a Senate resolution adopted, after the ratification of the treaty, by a vote of less than two thirds of a quorum, that it was not intended to incorporate the inhabitants of the Philippines into citizenship of the United States, or to permanently annex those islands.

8. The legal title and possession of the United States to the Philippine islands, derived from the cession in the treaty of peace with Spain,

whose sovereignty and possession under claim of title had existed for many years prior to the war with the United States, is unaffected by the continuance in insurrection against the United States of those who had been previously in insurrection against Spain.

[No. 158.]

native inhabitants, and is a mere declaration of the accepted principles of international law applicable thereto, as repeatedly declared in this court.

United States v. Percheman, 7 Pet. 51, 8 L. ed. 604; Delassus v. United States, 9 Pet. 117, 9 L. ed. 71; Mitchel v. United States, 9 Pet. 711, 9 L. ed. 283: Strother v. Lucas, 12 Pet. 410, 9 L. ed. 1137.

It is also an accepted principle of international law, that the laws, usages, and municipal regulations in force at the time of the conquest or cession remain in force until changed by the new sovereign. The conqueror may deal with the inhabitants and give them what law he pleases, unless restrained by the capitulation or treaty of cession; but, until an alteration is made, the former laws continue.

Calvin's Case, 7 Coke, 17; Mitchel v. United States, 9 Pet. 711, 9 L. ed. 283; 1137.

Argued December 17, 18, 19, 20, 1900. De- Strother v. Lucas, 12 Pet. 410, 9 L. ed. cided December 2, 1901.

IN

IN ERROR to the District Court of the United States for the Northern District of Illinois to review a decree of forfeiture and sale of articles alleged to have been imported without payment of duties. Reversed, and cause remanded, with directions to quash the information.

The facts are stated in the opinion.

Messrs. Lawrence Harmon and Charles H. Aldrich argued the cause and filed a brief for plaintiff in error:

The treaty of peace between the United States and Spain, so far as it relates to the Philippine islands, constitutes an absolute grant to the United States, both of the land and waters within the defined boundaries, and of all sovereignty and dominion over them. All that Spain granted the United States received, but the political sovereignty thus received was subject to the Constitu

tion.

New Orleans v. United States, 10 Pet. 662, 9 L. ed. 573.

The right of the United States to acquire territory by all the means recognized in international law is now too well established to require argument or illustration.

American Ins. Co. v. 356 Balcs of Cotton, 1 Pet. 511, 7 L. ed. 242; Pollard v. Kibbe, 14 Pet. 353, 10 L. ed. 490; Johnson v. M'Intosh, S Wheat. 543, 5 L. ed. 681; Scott v. Sandford, 19 How. 398, 15 L. ed. 691; United States v. Huckabee, 16 Wall. 414, 21 L. ed. 457; Church of Jesus Christ of L. D. S. v. United States, 136 U. S. 1, 34 L. ed. 481, 10 Sup. Ct. Rep. 792.

One sovereign cannot grant away its sovereignty over defined territory to another power, and by the same deed the grantee stipulate to take less than the grant.

New Orleans v. United States, 10 Pet. 662, 9 L. ed. 573.

The provision of the treaty, that "the civil rights and political status of the na

a

perma

The uncivilized native inhabitants, subject to tribal relations, are not considered independent communities having nent property in the soil, capable of alienation to private individuals. They are, in the accepted view of civilized nations, mere occupants, and pass with the cession by one sovereignty to another, though such civilized nations assume to respect such rights of occupancy. These tribes and communities are said to remain in a state of nature, and have never been admitted into the general society of nations.

Penn v. Baltimore, 1 Ves. Sr. 445. They are of that class who are said by jurists not to be citizens, but perpetual inhabitants with diminutive rights.

Johnson v. M'Intosh, 8 Wheat. 543, 5 L. ed. 681.

In the absence of special enactment by Congress, the establishment of American institutions and government in and over those islands does not necessarily constitute all of their inhabitants a part of "the people of the United States" to whom the civic status incident to that appellation is at once extended by territorial expansion.

Scott v. Sandford, 19 How. 398, 15 L. ed. 691.

From the date of the ratification of the treaty of Paris this territory became a part of the United States. Congress and the Executive in dealing therewith are subject to the provisions of the Constitution, and neither can exercise any power over such territory or the person or property of any citizen of the United States therein beyond what that instrument confers, nor lawfully deny any right which it has reserved.

American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 7 L. ed. 242; Pollard v. Kibbe, 14 Pet. 356, 10 L. ed. 492; Cross v. Harrison, 16 How. 164, 14 L. ed. 889; United States v. Rice, 4 Wheat. 247, 4 L. ed. 562; Scott v. Sandford, 19 How. 398, 15 L. ed. 691; First Nat. Bank v. Yankton County,

tive inhabitants of the territories hereby 101 U. S. 129, 25 L. ed. 1046; Shively v. ceded shall be determined by Congress," Bowlby, 152 U. S. 48, 38 L. ed. 349, 14 Sup. does not refer to the territory acquired, but Ct. Rep. 548; Morris v. United States, 174 to the status of the Spanish subjects and U. S. 196, 43 L. ed. 946, 19 Sup. Ct. Rep.

649; Fong Yue Ting v. United States, 149 U. S. 716, 37 L. ed. 914, 13 Sup. Ct. Rep. 1016; The City of Panama, 101 U. S. 453, sub nom. The City of Panama v. Phelps, 25 L. ed. 1061; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Leitensdorfer v. Webb, 20 How. 176, 15 I. ed. 891; Murphy v. Ramsey, 114 U. S. 44, 29 L. ed. 57, 5 Sup. Ct. Rep. 747; Chicago, R. I. & P. R. Co. v. McGlinn, 114 U. S. 542, 29 L. ed. 270, 5 Sup. Ct. Rep. 1005; Church of Jesus Christ of L. D. S. v. United States, 136 U. S. 1, 34 L. ed. 481, 10 Sup. Ct. Rep. 792; Springville v. Thomas, 166 U. S. 707, 41 L. ed. 1172, 17 Sup. Ct. Rep. 717; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620; Capital Traction Co. v. Hof, 174 U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep. 580.

This court has drawn a clear and sharp distinction between political power and the personal and constitutional rights of the inhabitants of a territory. The former are held at the discretion of Congress; the latter guaranteed "to them, as to other citizens, by the principles of constitutional liberty which restrain all the agencies of gov. ernment, state and national."

Murphy v. Ramsey, 114 U. S. 15, 29 L. ed. 47, 5 Sup. Ct. Rep. 747.

Being a part of the United States, the Philippine islands are subject to the provisions of cl. 1, § 8, art. 1, and of cl. 5, 6, § 9, art. 1, U. S. Const. And as there is nothing differently stipulated in the treaty with respect to commerce, it became instantly bound and privileged by the laws which Congress had passed to raise a revenue from duties on imports and tonnage.

Loughborough v. Blake, 5 Wheat. 317. 5 L. ed. 98; Cohen v. Virginia, 6 Wheat. 264, 5 L. ed. 257; Talbott v. Silver Bow County, 139 U. S. 438, 35 L. ed. 210, 11 Sup. Ct. Rep. 594; Knowlton v. Moore, 178 U. S. 41, 44 L. ed. 969, 20 Sup. Ct. Rep. 747; Gibbons v. District of Columbia, 116 U. S. 404, 29 L. ed. 680, 6 Sup. Ct. Rep. 427; Scott v. Sandford, 19 How. 398, 15 L. ed. 691; Crandall v. Nevada, 6 Wall. 35, 18 L. ed. 745; Slaughter-House Cases, 16 Wall. 73, 21 L. ed. 407; President's Message (1899) 50; United States v. Dickson, 15 Pet. 161, 10 L. ed. 697; Cross v. Harrison, 16 How. 164, 14 L. ed. 889; Synopsis of Treasury Decisions (1868) 10, 20.

The President of the United States has no legislative power. The imposition of customs duties upon commerce between these islands and other parts of the United States after the treaty of peace and exchange of ratifications, by executive order, is without lawful authority, and the seizure of the property of the plaintiff in error, a citizen of the United States, under such pretended authority, constitutes a taking of his property without due process of law.

United States v. Eaton, 144 U. S. 677, 36 L. ed. 591, 12 Sup. Ct. Rep. 764; Cross v. Harrison, 16 How. 164, 14 L. ed. 889; Campbell v. Hall, 1 Cowp. 204; 3 Bancroft, U. S History, 166,

Mr. Charles H. Aldrich also argued the cause for plaintiff in error in reply:

Sovereign power, in the sense that the words are used in the law of nations, as prerogative rights of the King or Emporer, not only is not vested in the United States or in any branch of its government, but cannot be so vested. The sovereign power is with the people.

Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; Martin v. Waddell, 16 Pet. 410, 10 L. ed. 1012; Gibbons v. Ogden, 9 Wheat. 196, 6 L. ed. 70; New Orleans v. United States, 10 Pet. 662, 9 L. ed. 573.

As the political department of the government has accepted the Philippine islands as a settlement of war, and has entered into possession, and is exercising jurisdiction therein, this court is bound to assume that they are United States territory.

Foster v. Neilson, 2 Pet. 253, 7 L. ed. 415.

Territory acquired subsequent to the formation of the Constitution is a part of the United States.

American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 7 L. ed. 242; Loughborough v. Blake, 5 Wheat. 317, 5 L. ed. 98; Pollard v. Kibbe, 14 Pet. 353, 10 L. ed. 490; Cross v. Harrison, 16 How. 164, 14 L. ed. 889; Morris v. United States, 174 U. S. 196, 43 L. ed. 946, 19 Sup. Ct. Rep. 649.

The application of the Constitution in its operation is coextensive with our political jurisdiction, and is not to be given or taken away by Congress.

Reynolds v. United States, 98 U. S. 145, 25 L. ed. 244; First Nat. Bank v. Yankton County, 101 U. S. 129, 25 L. ed. 1046; The City of Panama, 101 U. S. 453, sub nom. The City of Panama v. Phelps, 25 L. ed. 1061; Murphy v. Ramsey, 114 U. S. 44, 29 L. ed. 57, 5 Sup. Ct. Rep. 747; Chicago, R. I. & P. R. Co. v. McGlinn, 114 U. S. 542, 29 L. ed. 270, 5 Sup. Ct. Rep. 1005; Callan v. Wilson, 127 U. S. 540, 32 L. ed. 223, 8 Sup. Ct. Rep. 1301; Springville v. Thomas, 166 U. S. 707, 41 L. ed. 1172, 17 Sup. Ct. Rep. 717; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620; Capital Traction Co. v. Hof, 174 U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep. 580.

The theory of every government under a written Constitution must be that an act of the legislature repugnant to the Constitution is void.

Marbury v. Madison, 1 Cranch, 172, 2 L. ed. 72.

From the nature and theory of our institutions of government, the principles upon which they are supposed to rest, and the history of their development, we are constrained to conclude that they they do not mean to leave room for the play and action of purely personal and arbitrary power.

Chicago, M. & St. P. R. Co. v. Tompkins, 176 U. S. 167, 44 L. ed. 417, 20 Sup. Ct. Rep. 336; Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064.

A decision by this court that the clauses of the treaty of peace between the United States and Spain relating to imports and preferences as to the ports in the Philippine islands are within the Constitution and forbidden is not equivalent to holding that the

native inhabitants of such islands must bety. The territory ceased to be situated as come citizens. As to this question the Castine was when occupied by the British court will be guided by the decisions hold- forces in the war of 1812, or as Tampico ing that members of Indian tribes owing was when occupied by the troops of the

allegiance to such tribes, though dwelling within the United States, are not citizens of the United States within the 14th Amendment of the Constitution.

Elk v. Wilkins, 112 U. S. 94, 28 L. ed. 643, 5 Sup. Ct. Rep. 41; United States v. Wong Kim Ark, 169 U. S. 649, 42 L. ed. 890, 18 Sup. Ct. Rep. 456.

Attorney General Griggs argued the cause and filed a brief for defendant in er

roг.

For his contentions, see his brief as reported in Goetze v. United States, 45 L. ed. U. S. 1067.

177] Mr. Chief Justice Fuller delivered the opinion of the court:

Emil J. Pepke, a citizen of the United States and of the state of North Dakota, enlisted in the First Regiment of the North Dakota United States Volunteer Infantry,

and was assigned for duty with his regi.

ment in the island of Luzon, in the Philippine islands, and continued in the military service of the United States until the regi

ment was ordered to return, and, on arriving at San Francisco, was discharged Sep.

tember 25, 1899.

He brought with him from Luzon four.

teen diamond rings, which he had there purchased, or acquired through a loan, subsequent to the ratification of the treaty of peace between the United States and Spain,

United States during the Mexican war, "cases of temporary possession of territory by lawful and regular governments at war with the country of which the territory so possessed was part." Thorington v. Smith, 8 Wall. 10, 19 L. ed. 363. The Philippines were not simply occupied, but acquired, and having been granted and delivered to the United States, by their former master, were no longer under the sovereignty of any foreign nation.

In Cross v. Harrison, 16 How. 164, 14 L. ed. 889, the question was whether goods imported from a foreign country into California after the cession were subject to our tariff laws, and this court held that they

were.

In De Lima v. Bidwell the question was whether goods imported into New York from Porto Rico, after the cession, were sub

ject to duties imposed by the act of 1897 on "articles imported from foreign countries," and this court held that they were not. That act regulated commerce with foreign na

tions, and Porto Rico had ceased to be within that category; nor could territory be foreign and domestic at the same time.

Among other things it was there said: "The theory that a country remains foreign

February 6, 1899, and the proclamation may be domestic for one purpose and foreign

thereof by the President of the United States, April 11, 1899.

In May 1900, in Chicago, these rings were seized by a customs officer as having been imported contrary to law, without entry, or declaration, or payment of duties, and an information was filed to enforce the forfeit

ure thereof.

To this Pepke filed a plea setting up the facts, and claiming that the rings were not subject to customs duties; the plea was held insufficient; forfeiture and sale were de

creed; and this writ of error was prose

cuted.

with respect to the tariff laws until Congress has acted by embracing it within the customs union presupposes that a country for another. It may undoubtedly become necessary for the adequate administration of a domestic territory to pass a special act providing the proper machinery and officers, as the President would have no authority, except under the war power, to administer it himself; but no act is necessary to make it domestic territory if once it has been ceded to the United States.

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This

theory also presupposes that territory may be held indefinitely by the United States; that it may be treated in every particular, except for tariff purposes, as domestic terri. tory; that laws may be enacted and enforced

The tariff act of July 24, 1897 (30 Stat. by officers of the United States sent there

at L. 151, chap. 11), in regulation of com merce with foreign nations, levien duties "upon all articles imported from foreign

countries."

Were these rings, acquired by this soldier after the ratification of the treaty was proclaimed, when brought by him from Luzon to California, on his return with his regiment to be discharged, imported from a foreign country?

This question has already been answered in the negative, in respect of Porto Rico, in De Lima v. Bidwell, 182 U. S. 1, 45 L. ed. 1041, 21 Sup. Ct. Rep. 743, and unless the cases can be distinguished, which we are of opinion they cannot be in this particular, that decision is controlling.

178] *The Philippines, like Porto Rico, became, by virtue of the treaty, ceded conquered territory. or territory ceded by way of indemni

for that purpose; that insurrections *may be [179]
suppressed, wars carried on, revenues col-
lected, taxes imposed; in short, that every-
thing may be done which a government can
do within its own boundaries, and yet that
the territory may still remain a foreign
country. That this state of things may con-
tinue for years, for a century even, but that,
until Congress enacts otherwise, it still

mains

a foreign country.

re

To hold that this

can be done as matter of law we deem to be

pure judicial legislation. We find no warrant for it in the Constitution or in the powers conferred upon this court. It is true the nonaction of Congress may occasion a temporary inconvenience; but it does not follow that courts of justice are authorized to remedy it by inverting the ordinary mean. ing of words."

No reason is perceived for any different

ruling as to the Philippines. By the 3d ar-ernment wishes thus to disparage the title

ticle of the treaty Spain ceded to the United States "the archipelago known as the Philippine islands," and the United States agreed to pay Spain the sum of $20,000,000 within three months. The treaty was ratified; Congress appropriated the money; the ratification was proclaimed. The treatymaking power, the executive power, the legislative power, concurred in the completion of the transaction.

The Philippines thereby ceased, in the language of the treaty, "to be Spanish." Ceasing to be Spanish, they ceased to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established. The result was the same although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States, and they became entitled to its protection.

But it is said that the case of the Philippines is to be distinguished from that of Porto Rico because on February 14, 1899, after the ratification of the treaty, the Senate resolved, as given in the margin,† that it was not intended to incorporate the in[180]habitants *of the Philippines into citizenship of the United States, nor to permanently annex those islands.

We need not consider the force and effect of a resolution of this sort, if adopted by Congress, not like that of April 20, 1898, in respect of Cuba, preliminary to the declaration of war, but after title had passed by ratified cession. It is enough that this was a joint resolution; that it was adopted by the Senate by a vote of 26 to 22, not two thirds of a quorum; and that it is absolutely without legal significance on the question before us. The meaning of the treaty cannot be controlled by subsequent explanations of some of those who may have voted to ratify it. What view the House might have taken as to the intention of the Senate in ratifying the treaty we are not informed, nor is it material; and if any implication from the action referred to could properly be indulged, it would seem to be that two thirds of a quorum of the Senate did not consent to the ratification on the grounds indicated. It is further contended that a distinction exists in that, while complete possession of Porto Rico was taken by the United States, this was not so as to the Philippines, because of the armed resistance of the native inhabitants to a greater or less extent.

of the United States, or to place itself in the position of waging a war of conquest.

The sovereignty of Spain over the Philippines and possession under claim of title had existed for a long series of years prior to the war with the United States. The fact that there were insurrections against her, or that uncivilized tribes may have defied her will, did not affect the validity of her title. She granted the islands to the United States, and the grantee in accepting them took noth. ing less than the whole grant.

*If those in insurrection against Spain Con-[181 tinued in insurrection against the United States, the legal title and possession of the latter remained unaffected.

We do not understand that it is claimed that in carrying on the pending hostilities the government is seeking to subjugate the people of a foreign country, but, on the contrary, that it is preserving order and suppressing insurrection in the territory of the United States. It follows that the possession of the United States is adequate possession under legal title, and this cannot be asserted for one purpose and denied for another. We dismiss the suggested distinction as untenable.

But it is sought to detract from the weight of the ruling in De Lima v. Bidwell because one of the five justices concurring in the judgment in that case concurred in the judgment in Downes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770.

In De Lima v. Bidwell Porto Rico was held not to be a foreign country after the cession, and that a prior act exclusivel exclusively applicable to foreign countries became inan inapplicable.

In Downes v. Bidwell the conclusion of a majority of the court was that an act of Congress levying duties on goods imported from Porto Rico into New York, not in conformity with the provisions of the Constitution in respect to the imposition of duties, imposts, and excises, was valid. Four of the members of the court dissented from and five concurred, though not on the same grounds, in this conclusion. The justice who delivered the opinion in De Lima's Case was one of the majority, and was of opinion that although by the cession Porto Rico ceased to be a foreign country, and became a territory of the United States and domestic, yet that it was merely "appurtenant" territory, and "not a part of the United States within the revenue clauses of the Constitution."

This view placed the territory, though not foreign, outside of the restrictions applicable to interstate commerce, and treated the power of Congress, when affirmatively exercised over a territory, situated as supposed,

We must decline to assume that the gov-las uncontrolled by the provisions of the Con

†"Resolved by the Senate and House of Rep-United States to establish on said islands a

resentatives of the United States of America in Congress assembled, That by the ratification of the treaty of peace with Spain it is not intended to incorporate the inhabitants of the Philippine Islands into citizenship of the United States, nor is it intended to permanently annex said islands as an integral part of the territory of the United States; but it is the intention of the

government suitable to the wants and conditions of the inhabitants of said islands to prepare them for local self-government, and in due time to make such disposition of said islands as will best promote the interests of the United States and the inhabitants of said islands." Cong. Rec., 55th Cong. 3d Sess. vol. 32, p. 1847.

stitution in respect of national taxation. I ties, and the power of the Senate is limited The distinction was drawn between a special to a ratification of such terms as have alact in respect of the particular country and ready been agreed upon between the Presi

a general and prior act only applicable to [182]*countries foreign to ours in every sense. The latter was obliged to conform to the rule of Aniformity, which was wholly disregarded in the former.

The ruling in the Case of De Lima remained unaffected, and controls that under consideration. And this is so notwithstanding four members of the majority in the De Lima Case were of opinion that Porto Rico did not become by the cession subjected to the exercise of governmental power in the levy of duties unrestricted by constitutional limitations.

Decree reversed and cause remanded, with directions to quash the information.

Mr. Justice Gray, Mr. Justice Shiras, Mr. Justice White and Mr. Justice McKenna dissented, for the reasons stated in their opinions in De Lima v. Bidwell, 182 U. S. 1, 200-220, 45 L. ed. 1041, 1057-1065, 21 Sup. Ct. Rep. 743, in Dooley v. United States, 182 U. S. 222, 236-243, 45 L. ed. 1074, 1083-1085, 21 Sup. Ct. Rep. 762, and in Downcs v. Bidwell, 182 U. S. 244, 287-347, 45 L. ed. 1088, 1106-1129, 21 Sup. Ct. Rep.

770.

Mr. Justice Brown, concurring:

I concur in the conclusion of the court in this case, and in the reasons given therefor in the opinion of the Chief Justice.

The case is distinguishable from De Lima

dent, acting for the United States, and the commissioners of the other contracting power. The Senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratification, or make such ratification conditional upon the adoption of amendments to the treaty. If, for instance, the treaty with Spain had contained a provision instating the inhabitants of the Philippines as citizens of the United States, the Senate might have refused to ratify it until this provision was stricken out. But it could not, in my opinion, ratify the treaty and then adopt a resolution declaring it not to be its intention to admit the inhabitants of the Philippine islands to the privileges of citizenship of the United States. Such resolution would be inoperative as an amendment to the treaty, since it had not received the assent of the President or the Spanish commissioners.

Allusion was made to this question in the New York Indians v. United States, 170 U. S. 1, 21, 42 L. ed. 927, 934, 18 Sup. Ct. Rep. 531, wherein it appeared that, when a treaty with certain Indian tribes was laid before the Senate for ratification, several articles were stricken out, several others amended, a new article added, and a proviso adopted that the treaty should have no force or effect whatever until the amendment had been submitted to the tribes, and they had given their free and voluntary assent thereto.

v. Bidwell in but one particular, viz., the This resolution, however, was not found in Senate resolution of February 6, 1899. With the original or in the published copy of the regard to this, I would say that in my view treaty, or in the proclamation of the Presithe case would not be essentially different dent, which contained the treaty without the if this resolution had been adopted by a amendments. With reference to this the unanimous vote of the Senate. To be effica- court observed: "The power to make cious such resolution must be considered treaties is vested by the Constitution in the either (1) as an amendment to the treaty, President and Senate, and, while this pro

or (2) as a legislative act qualifying or modifying the treaty. It is neither.

It cannot be regarded as part of the treaty, since it received neither the approval of the President nor the consent of the other contracting power. A treaty in its legal sense is defined by Bouvier as "a compact made between two or more independent nations with a view to the public welfare" (2 Law Dict. 1136), and by Webster as

viso was adopted by the Senate, there is no

evidence that it ever received the sanction or

approval of the President. It cannot be considered as a legislative act, since the power to legislate is vested in the President, Senate, and House of Representatives. There is something, too, which shocks the conscience *in the idea that a treaty can be put[184] forth as embodying the terms of an arrangement with a foreign power or an Indian "an agreement, league, or contract between tribe, a material provision of which is untwo or more nations or sovereigns, formally known to one of the contracting parties, and signed by commissioners properly author is kept in the background to be used by the ized, and solemnly ratified by the several other only when the exigencies of a particusovereigns or the supreme power of each lar case may demand it. The proviso never

state." In its essence it is a contract. It

differs from an ordinary contract only in be.

appears to have been called to the attention of the tribes, who would naturally assume that the treaty embodied in the presidential proclamation contained all the terms of the arrangement."

In short, it seems to me entirely clear that this resolution cannot be considered a part of the treaty.

ing an agreement between independent states instead of private parties. Foster v. Neilson, 2 Pet. 253, 314, 7 L. ed. 415, 435; Head Money Cascs, 112 U. S. 580, sub nom. Edye v. Robertson, 28 L. ed. 798, 5 Sup. Ct. Rep. 247. By the Constitution (art. 2. § 2) the President "shall have power, by and with the [183] advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur." Obviously the treaty must be conceded that under the decisions of this contain the whole contract between the par- court Congress has the power to disregard

I think it equally clear that it cannot be treated as a legislative act, though it may

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