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Updated: June 8, 2025
When the terms of the treaty were first announced Mr Borden declared that it should have been made subject to ratification by the Canadian parliament. After the award Sir Wilfrid Laurier went further, contending that the lesson was that Canada should have independent treaty-making power.
The treaty-making power is still withheld from the Dominion; but since the Alaskan boundary treaty Great Britain has given more and more attention to the demands and needs of Canada when treaties have been in negotiation, and in 1907 Sir Wilfrid Laurier, Mr. W. S. Fielding, Minister of Finance, and the Hon. Mr.
Judge McLean of the Supreme Court delivered an opinion which is often referred to as embodying the doctrine upon which the House rests its claim of power.* "A treaty," said the learned Justice, "is the supreme law of the land only when the treaty-making power can carry it into effect.
His only question was as to the method of resistance, and he finally decided to refuse absolutely, and did so in a message setting forth his reasons. He said that the intention of the constitutional convention was known to him, and that they had intended to vest the treaty-making power exclusively in the Executive and Senate.
But this can only be done by the treaty-making power or the legislative authority." The United States can have a valid title by conquest to territory not a part of the Union. A title so acquired by the United States cannot be questioned in its courts.
His appearance, manner, speech and the homage paid him denoted exalted rank; while the confidence with which he spoke for Sultan Amurath was most remarkable. His acceptance of the terms presented by the Princess Irene was little short of downright treaty-making; and what common official dared carry assumption to such a height?
Without entering into the strength of the legal argument, and without denying that there are two sides to the question, the fact that it was open to debate whether the treaty-making power under the Constitution could or could not obligate the Government of the United States to make war under certain conditions was in my judgment a practical reason for avoiding the issue.
Second, they wanted the other powers signing the instrument to understand our constitutional limitations beyond which the treaty-making power cannot go.
The cities, as they grew in strength, never claimed the right to make the laws or to share in the government. As a matter of fact, they did make the laws, and shared, beside, in most important functions of sovereignty, in the treaty-making power, especially. Sometimes by bargains; sometimes by blood, by gold, threats, promises, or good hard blows they extorted their charters.
A warm debate immediately arose, and speedily took the form of a discussion on the nature and extent of the treaty-making power.
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