Upon this point the declarations of the Supreme Court are not completely satisfactory. In various of its opinions this tribunal has explicitly asserted that the rights reserved by the Constitution from the control of the other departments of the Federal Government may not be infringed by its treaty-making power.

In Prevost v. Greenaux11 the court say: "That a treaty is no more the supreme law of the land than is an act of Congress is shown by the fact that an act of Congress vacates pro tanto a prior inconsistent treaty. Whenever, therefore, an act of Congress would be unconstitutional, as invading the reserved rights of the States, a treaty to the same effect would be unconstitutional."

11 19 How. 1; 1.3 L ed. 572.

In the License Cases12 Justice Daniel, dissenting, declared: "This provision of the Constitution, it is to be feared, is sometimes applied or expounded without those qualifications which the character of the parties to that instrument, and its adaptation to the purposes for which it was created, necessarily imply. Every power delegated to the Federal Government must be expounded in coincidence with a perfect right in the States to all that they have not delegated; in coincidence, too, with the possession of every power and right necessary for their existence and preservation; for it is impossible to believe that these ever were in intention or in fact, ceded to the General Government. Laws of the United States, in-order to be binding, must be within the legitimate powers vested by the Constitution. Treaties, to be valid, must be made within the scope of the same powers; for there can be no 'authority of the United States' save what is derived mediately or immediately, and regularly and legitimately, from the Constitution. A treaty, no more than an ordinary statute, can arbitrarily cede away any one right of a State or of any citizen of a State. In cases of alleged conflict between a law of a State and the Constitution or a statute of the United States, this court must pronounce upon the validity of either law with reference to the Constitution; but whether the decision of the court in such cases be itself binding or otherwise must depend upon its conformity with, or its warrant from, the Constitution. It cannot be correctly held, that a decision, merely because it be by the Supreme Court, is to override alike the Constitution and the laws both of the States and of the Ignited States."

And in a dissenting opinion in the Passenger Cases13 Chief Justice Taney with respect to the treaty power declared: "The first inquiry is, whether, under the Constitution of the United States, the General Government has the power to compel the several States to receive, and suffer to remain in association with its citizens, every person or class of persons whom it may be the policy or pleasure of the United States to admit. In my judgment, this question lies at the foundation of the controversy in this case, I do not mean to say that the General Government have, by treaty or act of Congress, required the State of Massachusetts to permit the aliens in question to land. I think there is no treaty or act of Congress which can justly be so construed. But it is not necessary to examine that question until we have first inquired whether Congress can lawfully exercise such a power, and whether the States are bound to submit to it. For if the people of the several States of this Union reserved to themselves the power of expelling from their borders any person, or class of persons, whom it might deem dangerous to its peace, or likely to prove a physical or moral evil among its citizens, then any treaty or law of Congress invading this right, and authorizing the introduction of any person or description of persons against the consent of the State, would be an usurpation of power which this court could neither recognize nor enforce. I had supposed this question not now open to dispute."

12 5 How. 504; 12 L. ed. 256. 13 7 How. 2S3; 12 L. td. 762.

In addition to the foregoing assertions of incompetence of the treaty-making power to invade the reserved rights of the States, there are the dicta, earlier quoted, to the effect that this power, though not in terms limited by the Constitution, is not competent to change the general character of our government. If the treaty-making power has not this power, then certainly the reserved rights of the States are not completely at its mercy. For to invade radically the exclusive jurisdiction of the States would be, in effect, to change the nature of our federal constitutional system.