People ex rel. Attorney General v. Gerke

Heydenfeldt, J., delivered the opinion of the Court. Bryan, J., concurred.

By a convention between the United States and the Kingdom of Prussia, made in the year 1828, the 14th article provides, ‘‘And when on the death of any person holding real estate within the territory of the one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alien-age, such citizen or subject shall be allowed a reasonable time to sell the same, and to withdraw the proceeds without molestation.”

The Attorney General, in support of the information filed in this case, denies the power of the Federal Government to make such a provision by treaty, and the determination of this case depends upon the solution of that question. Cases have frequently arisen, where aliens have claimed to inherit by virtue of treaty provisions analogous to the one under consideration, and in all of them, so far as I have examined, the stipulations were enforced in favor of the foreign claimants. See 2 Wheat., 259. 4 Ib., 453. 8 Ib., 464. 9 Ib., 489. 10 Ib., 181.

But in none of these cases was the question raised as to the power of the Federal Government to make the treaty. It has been the practice of the Government from an early period after the ratification of the Constitution, and its power is now, I believe, for the first time disputed.

The language, which grants the power to make treaties, contains no words of limitation; it does not follow that the power is unlimited. It must be subject to the general rule, that an instrument is to be construed so as to reconcile and give meaning and effect to all its parts. If it were otherwise, the most important limitation upon the powers of the Federal Government would be ineffectual, and the reserved rights of the States would be subverted. This principle of construction as applied, not only in reference to the Constitution of the United States, but particularly in the relation of all the rest of it to the treaty-making [383]grant, was recognized both by Mr. Jefferson and John Adams,—two leaders of opposite schools of construction. See Jefferson's Works, vol. 3, p. 135; and vol. 6, p. 560.

It may, therefore, be assumed that, aside from the limitations and prohibitions of the Constitution upon the powers of the Federal Government, “ the power of treaty was given, without restraining it to particular objects, in as plenipotentiary a form as held by any sovereign in any other society.” This principle, as broadly as I have deemed proper to lay it down, results from the form and necessities of our Government, as elicited by a general view of the Federal compact. Before the compact, the States had the power of treaty making as potentially as any power on earth—it extended to every subject whatever. By the compact, they expressly granted it to the Federal Government in general terms, and prohibited it to themselves.