United States v. Thompson

• Decision Date: 04 June 1919
• Citation: 258 F. 257
• Parties: UNITED STATES v. THOMPSON.
• Court: U.S. District Court — Eastern District of Arkansas

258 F. 257

UNITED STATES v. THOMPSON.

United States District Court, E.D. Arkansas, Jonesboro Division.

June 4, 1919

W. H Martin, U.S. Atty., of Hot Springs, Ark., Wm. L. Frierson Asst. Atty. Gen., and Wm. W. Williams, Solicitor of Department of Agriculture, for the United States.

S. W Moore, of Kansas City, Mo., and E. L. Westbrook, of Jonesboro, Ark., for defendant.

TRIEBER District Judge.

The issue in this cause, raised by demurrer to an information filed by the United States attorney, charging the defendant with a violation of the Migratory Bird Act of July 3, 1918 (40 Stat. 755, c. 128, U.S. Comp. St. 1918, p. 1795) entitled: 'An act to give effect to the convention between the United States and Great Britain for the protection of migratory birds, concluded at Washington, August 16, 1916, and for other purposes' (the treaty referred to will be found in 39 Stat. 1702), is whether the act is constitutional. This, of course, involves the power to make the treaty.

The contention of counsel for the defendant, briefly stated, is that a treaty or convention between the United States and a foreign nation is of no higher grade than an act of Congress, and if an act of Congress regulating migratory birds is beyond the constitutional powers of Congress a treaty on the same subject is also void.

The constitutional provisions relating to the treaty power are: Article 2, Sec. 2, cl. 2, which, among the powers granted to the President, provides that:

'He shall have power, by and with the * * * consent of the Senate, to make treaties: Provided, two-thirds of the Senators present concur.'

Article 1, Sec. 10, cl. 1, provides that:

'No state shall enter into any treaty, alliance or confederation.' The Tenth Amendment to the Constitution provides:

'The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.'

It is now contended that as it was held by this court in United States v. Shauver (D.C.) 214 F. 154, by Judge Pollock in U.S. v. McCullagh (D.C.) 221 F. 288, and in State v. Sawyer, 113 Me. 458, 94 A. 886, L.R.A. 1915F, 1031, Ann. Cas. 1917D, 650, and State v. McCullagh, 96 Kan. 786, 153 P. 557, that the migratory bird section of the Appropriation Act for the Department of Agriculture of March 4, 1913, c. 145, 37 Stat. 828, 847 (Comp. St. Sec. 8837), was unconstitutional, the same result must follow in this case; or, in other words, that the treaty power under the Constitution is no greater than the power of Congress to enact statutes. (The act of 1913 was not enacted to carry into effect a treaty.)

In construing the Constitution it is the settled canon of construction that every part of it must be given effect, and none of its provisions may be disregarded. Article 6, cl. 2, of the Constitution, provides:

'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 land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.'

It will be noticed that this section, in speaking of the laws of the United States, limits the power to enact them to such laws as are 'made in pursuance thereof.' On the other hand, when referring to treaties, the only limitation is 'which shall be made under the authority of the United States,' omitting the words 'in pursuance of the Constitution.' It cannot be assumed that the framers of that instrument intended to make no distinction between laws and treaties, when using language differing so materially. The words, 'laws made in pursuance of the Constitution,' can have but one meaning, namely, when authorized by the Constitution, while as to treaties the limitation is when made 'by authority of the United States. ' The reason for this distinction is obvious. In making laws, our own consent alone, is necessary, but in forming treaties the concurrence of the other power to the treaty is required.

Laws can only prescribe the conduct for the people within the jurisdiction of the lawmaker, while treaties are to affect rights and privileges of subjects of foreign countries and of our citizens in such countries. Treaties are reciprocal, and in all instances the same rights and privileges are granted to the citizens and subjects of each of the contracting parties in the respective countries.

Laws of a local nature, and which, under our dual system of government, are under the exclusive control of the states, frequently affect the most important rights of aliens, while the rights of our own citizens are similarly affected by the municipal laws of foreign nations. To protect these, treaties must be made, and as the states are expressly prohibited by the Constitution from entering into treaties with foreign nations, these rights can only receive the protection necessary for their enjoyment by treaties made by the national government, clothed with that power by our Constitution. As held in the Chinese Exclusion Case, 130 U.S. 581, 604, 605, 9 Sup.Ct. 623, 629 (32 L.Ed. 1068):

'While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory. The powers to declare war, make treaties, suppress insurrection, repel invasion, regulate foreign commerce, secure republican governments to the states, and admit subjects of other nations to citizenship, are all sovereign powers, restricted in their exercise only by the Constitution itself, and considerations of public policy and justice, which control, more or less, the conduct of all civilized nations. * * * The control of local matters being left to local authorities, and national matters being entrusted to the government of the Union, the problem of free institutions existing over a widely extended country, having different climates and varied interests, has been happily solved. For local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.'

Attorney General Cushing, in Droit D'Aubaine, 8 Op.Attys.Gen. 411, 415, said:

'But can it be, is there any good reason to think, that the federal government has no power to make such a stipulation? It may be inconvenient, because involving conflict with, or abrogation of, the laws of one or more of the states. Granted; but inconvenience is not unconstitutionality, question of which depends on the text of the federal Constitution. The power, which the Constitution bestows on the President, with advice and consent of the Senate, to make treaties, is not only general in terms and without any express limitation, but it is accompanied with absolute prohibition of exercise of treaty power by the states. That is, in the matter of foreign negotiation, the states have conferred the whole of their power-- in other words, all the treaty powers of sovereignty-- on the United States. Thus, in the present case, if the power of negotiation be not in the United States, then it exists nowhere, and one great field of international relation, of negotiation, and of ordinary public and private interest, is closed up, as well against the United States as each and every one of the states. That is not a supposition to be accepted, unless it be forced upon us by considerations of overpowering cogency. Nay, it involves political impossibility; for, if one of the proper functions of sovereignty be thus utterly lost to us, then the people of the United States are but incompletely sovereign-- not sovereign, nor in coequality of right with other admitted sovereignties of Europe and America.'

Mr. Richard Henry Lee, writing under the pen name of 'The Federal Farmer,' in his letter IV, dated October 12, 1787, when the Constitution was before the people of the states for ratification, speaking of the treaty-making power in the Constitution, said:

'By the article before recited, treaties also made under the authority of the United States shall be the supreme law. It is not said that these treaties shall be made in pursuance of the Constitution, nor are there any constitutional bounds set to those who shall make them. The President and two-thirds of the Senate will be empowered to make treaties indefinitely, and, when these treaties shall be made, they will also abolish all laws and state Constitutions incompatible with them. This power in the President and Senate is absolute, and the judges will be bound to allow full force to whatever rule, article, or thing the President and Senate shall establish by treaty. Whether it be practicable to set any bounds to those who make treaties, I am not able to say: if not, it proves that this power ought to be more safely lodged. ' Scott's Federalist and Other Constitutional Papers, vol. 2, pp. 867, 868.

Mr. Iredell, later one of the Justices of the Supreme Court, and the only justice who dissented in Ware v. Hylton, 3 U.S. (3 Dall.) 199, 1 L.Ed. 568, in his answer to Mr. Mason's objections to the Constitution, referring to the treaty power said:

'Did not Congress very lately unanimously resolve, in adopting the very sensible letter of Mr. Jay, that a treaty, when once made pursuant to the sovereign authority, ex vi termini became immediately the law of the land? It seems to result unavoidably

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