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Show -106- without the consent of Congress, Since it is definitely settled that the con- gressional consent required by the Constitution may "be express or implied, ^ it would have been more satisfactory to hold, in those cases, that the consent of Congress was implied from its silent acquiescence after the fact, and there- fore that the compacts were valid. This seems to be the only way in which to harmonize these state decisions with the opinion of Chief Justice Taney in the leading case of Holmes v, Jennison,11 wherein he declared that the validity of all compacts and agreements between the states and foreign countries is con- ditional upon the assent of Congress,, The Constitution makes no distinction between inter-state agreements and agreements between the states and foreign governments s and hence any agreement or compact, not a treaty, alliance, or confederation would be valid, provided it is approved by Congress^ Assuming, therefore, the absence of any constitutional objection to the formation of inter-state compacts and compacts between the individual states and foreign countries, is there any reason why such compacts should not be entered into? ^ Virginia v. Tennessee ^, supra note 9; Wharton v* Wise (1894) 153 ^« s» 155, 114 Sup, Ct, 783* 1:i (l840, U. S o) 14 Pet* 540. The Court was equally divided, Chief Justice Taney and Justices McLean, Story, and Wayne being of the opinion that no agreement without congressional consent would be valid The precise point involved was whether a state could enter into extradition arrangements with foreign states without consent of Congress* The opinion of Chief Justice Taney was later approved in United States v* Rauscher (1886) 119 U. S, lj.07, J4L4J 7 Supc Ctc 23U* 237 • For a similar view, see Story, op5 citP sec# ll4O3« ^Green v, Biddle (1823, V* S.) 8 Wheat, 15 Poole v, Flseger (1837, UB Se) 11 Peto 185$ Wharton v« Wise, supra note 10; Crandall, Treaties (2d ed# 1916) sec6 69? Barnettj International Agreements, Without the Advice and Consent of the Senate (1905) 15 Yale Law Journal, 18O ¦*-3The Committee on Inter-State Compacts seems to regard as especially desirable the formation between the states and foreign countries of agreements concerning uniform commercial laws, as^ for example, the law of warehouse receipts. It could hardly be dogmatically asserted that such agreements would not be "treaties" within the meaning of that term as it is used in the clause of the Consitution absolutely forbidding the states to enter into treaties, alliances, or confederations. The term "treaty" seems incapable of exact definition. Mr. Justice Field declared in Geofroy v# Riggs (1890) 13J U. S. 258, 267, 10 Sup. Ct, 295, 297, that the United States could enter into a treaty "touching any matter which is properly the subject of negotiation with a foreign country." Applying this test to the subjects concerning which it is proposed -that the states conclude agreements with" foreign powers, it might be argued that the states would be precluded from making agreements covering such of those subjects as are within the jurisdiction of the Federal Government through i-ts treaty-making po7»or# Once that power is admitted to cover a parti- cular field, it would seem to follow that the states are wholly excluded there- from. See Baldwin v, Franks (1887) 120 U. S. 678, 682,, 7 Sup. Ct. 656, 657* Hence even if Congress gave the blanket authority desired, a constitu- tional objection might still remain to prevent the exercise of the power* But some agreements are not to be classed as treaties and the courts viould pro<- (637) |