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Under this Constitution therefore, so far as a treaty constitutionally is binding, upon the principles of moral obligation, it is also by the vigor of its own authority to be executed in fact. It would not otherwise be the supreme law in the new sense provided, and it was so before in a moral sense." 2

$ 329. John Marshall's defeat ; personnel of the court. -The fact that this decision was delivered over a century ago makes it all the more authoritative, as the justices who announced it had the advantage of contemporaneous knowledge of many matters affecting the subject matter involved and circumstances affecting it. It was before the advent of the great Marshall upon the bench; but he appeared as one of the counsel, and, although he represented the defense, he did not dare to deny the great force and far-reaching effect of that treaty-making power of the United States which subsequently, as Chief Justice, he upheld so strenuously and efficiently. It is interesting at this time to note the fact that this was the only occasion on which John Marshall appeared as counsel before the Supreme Court; it is also interesting to note that on this single occasion he was unsuccessful.

Justice Paterson had been a member of the Constitutional Convention, and, as we have already seen, largely instrumental in strengthening the treaty-making power of the Federal Government. Justice Wilson had been a member of Congress, a signer of the Declaration of Independence, and was one of the ablest and most active members of the Federal Convention, as well as that of his own State of Pennsylvania in which he was the acknowledged leader of the majority which ratified the instrument in spite of the opposition which was based to such a large degree, as we have seen, on the extent of the treaty-making power lodged in the Central Government. Justice Iredell had been a mem

23 Dallas, pp. 276-277.

2 For the part taken by Justice $ 329.

Wilson in the Federal Convention 1 For Justice Story's opinion as see $ 182, p. 314, Vol. I; for the part to the qualifications of the mem- which he took in the Pennsylvania bers of the Supreme Court, see note State Convention, see $ 199, p. 341, under $ 143, pp. 246–247, Vol. I. Vol. I.


ber of the Constitutional Convention of North Carolina, and was also the author of the reply to Colonel Mason's objections to the Constitution. The Chief Justice of the Court was one of the authors of the Federalist.5

$ 330. Ware vs. Hylton the leading authority for over a century. Although the opinions in this case were delivered over one hundred and four years ago, they are as much the law of the land to-day as they were then; as an exposition of the Constitutional treaty-making power of the United States they have never been questioned; on the contrary, they have frequently been cited affirmatively and followed by the courts of the States and of the United States, including the Supreme Court itself, which has on more than one occasion made them the basis of its decisions in regard to the construction of treaties, not only in respect to this element but also as to other points of treaty and Constitutional construction involved.

If any one considers that too much space has been devoted to this single expression of the Supreme Court, the author can only state that in his opinion the entire law of the treatymaking power so far as the points involved are concerned, has been summed up in the extracts which have been quoted from the opinions delivered in this case, which according to the Centennial historian of the Supreme Court, is one of the most far-reaching decisions rendered by that tribunal during the first century of its existence. Other decisions were

3 See $ 227, p. 366, Vol. I.

important principle that the Treaty 4 See $ 253, p. 389, Vol. I.

of Peace, like the Constitution, was 5 See $ 249, p. 387, Vol. I. in respect to matters embraced by $ 330.

its terms, the supreme law, and 1 State of Georgia vs. Brailsford, could not be restricted in its operaU.S. Sup. Ct. 1794, 3 Dallas, 1, Jay, tion by State action or State laws. Ch. J., involved similar ques. The same result was reached, and tions to those involved in Ware vs. the same conclusion justified after Hylton.

the most exhaustive examination Mr. Carson, the historian of the in the far more celebrated case of Supreme Court, in bis Centennial Ware vs. Hylton, in which the History, on page 169, after refer- splendid eloquence of Patrick ring to the case of the State of Henry, the great reasoning faculGeorgia vs. Brailsford, says: ties of John Marshall at the bar,

“This decision, although not and the powerful dissenting opinelaborately expressed, involved the lion of Iredell were employed in

rendered involving similar questions but this was the leading case and established the legal principles involved.?

vain to convince the Court that tions as to those decided in Ware Congress had no power to make a vs. Hylton and was decided in the treaty that could operate to anoul a same manner and without opinion. legislative act «í any of the States, Society for the Propagation of the and thus destroy rights acquired Gospel vs. Hartland, U. S. Cir. Ct. under such an act. Chase, Patter- Vermont, 1814, 2 Paine, 536; Fedson, Wilson and Cushing, impressed eral Cases 13, 155; THOMPSON, J. by the uncommon magnitude of the Same vs. Wheeler, U. S. Cir. Ct. subject, the bitter and exciting con- New Hampshire, 1814, 2 Mattroversies it had provoked, and the thews, 105; Federal Cases 13, 156; far-reaching consequences by which STORY, J. their decision would be attended, State of Vermont vs. Society for although differing upon some mat- the Propagation of the Gospel, U. S. ters of detail and in the mode of Cir. Ct. Vermont, 1826, Federal their reasoning, reached the con- Cases 16, 919–20; THOMPSON, J. clusion that the Treaty of 1783 was Society &c. vs. Town of New the supreme law, equal in its effect Haren, United States Sup. Ct. 1823; to the Constitution itself, in over- 8 Wheat. 464; WASHINGTON, J. ruling all State laws upon the sub- These cases were all the result of ject, and the words that British State confiscation acts of property creditors should meet with no law-owned by the British Society; the ful inpediment, were as strong as Supreme Court held that the sothe wit of man could devise to ciety had a right to hold the propavoid all effects of sequestration, erty, and that its rights became confiscation, or any other obstacle vested under the treaty of 1783, the thrown in the way by any law, provisions of which were superior particularly pointed against the to State laws; also that although recovery of such debts. The deci. these suits were not brought until sion expanded from a statement of after the War of 1812, the rights the contractual liability of an indi- had become so vested under prior vidual to an assertion that the treaties that the Society had a right treaty obligations of the nation to recover and hold its property. were paramount to the laws of the It was also held that a State cannot individual States. Happy conclu- pass laws confiscating franchises. sion! A contrary result would have There is quite a lengthy discussion blackehed our character, at the in the opinion as to the effect of very outset of our career as a nation, war upon treaties. In Society for with the guilt of treachery to the the Propagation &c. vs. Pawlett, terms of the treaty by which our U. S. Sup. Ct. 1830, 4 Peters, 480, Independence had been recognized, STORY, J., it was held, however, and would have prostrated the that the Society could not recover national sovereignty at the feet of mesne profits during the period of Virginia."

confiscation. Clarke vs. Harwood, U. S. Sup. Higginson vs. Mein, U.S. Sup. Ct. Ct. 1797, 3 Dallas, 342, PER CURIAM. 1808, 4 Cranch, 415, MARSHALL, J. This case involved similar ques. In a foreclosure case held that the

331. Fairfax vs. Hunter; Justice Story's opinion; State law and treaties, 1812.—The case of Fuirfax's Devisee vs. Hunter's Lessee, an action in ejectment involving the construction of the treaties of 1783 and 1794 between Great Britain and the United States, was decided by the Supreme Court in 1812. In this case Justice Story, who delivered the opinion, declared that, as the possession and seizin of the property had continued up to and after 1794, the treaty of that year being the supreme law of the land, confirmed the title to him, his heirs and assigns, and protected them from forfeiture; he concludes that portion of his opinion which deals with this aspect of the case by saying:

“It was once in the power of the commonwealth of Virginia, by an inquest of office, or its equivalent, to have vested the estate completely in itself or its grantees. But it has not so done, and its own inchoate title (and of course the derivative title, if any, of its grantee) has by the operation of the treaty become ineffectual and void. It becomes unnecessary to consider the argument as to the effect of the death of one of the parties during the suit; because admitting it to be correctly applied in general, the treaty of 1794 completely avoids it.” i

confiscation and sale of the prop

$ 331. erty under confiscation laws of the 1 Fairfax vs. Hunter, U. S. Sup. State of Georgia, did not affect the Ct. 1813, 7 Cranch, 60:3 (see p. 627), title as the sale did not take place STORY, J., and see also Martin vs. until after the treaty of peace, and Hunter, U. S. Sup. Ct. 1816, 1 that the statute of limitations could Wheaton, 304, STORY, J. not be pleaded.

Orr vs. Hodgson, U. S. Sup. Ct. See also Hamilton vs. Eaton, U.S. 1819, 4 Wheaton, 45:3, Story, J. Cir. Ct. No. Car. 1792, 1 Hughes, Shanks vs. Dupont, U. S. Sup. 249; Fed. Cas. 5980, ELLSWORTII, Ct. 1830, 3 Peters, 242, STORY, J. CH. J., SITGREAVES, J.

The effect of the treaty of peace Hylton vs. Brown, U. S. Cir. Ct. with Great Britain discussed and Pa. 1806, 1 Washington, 298, 343, determined. Fed. Cas. 6982, WASHINGTON, J. Hopkirk vs. Bell, U. S. Sup. Ct.

Jones vs. Walker, U. S. Cir. Ct. 1806–7, 3 Cranch, 453, 4 Cranchi, Va. 1803, 2 Paine, 688, JAY, CH. J. 163. American debtors set up the

These are but a few of the early Virginia State statute of limitadecisions on this subject; all the tions as a bar to recovery of debts cases cited under the subsequent of British creditors. sections of this chapter should be Held, that under the provisions carefully examined.

of the treaties of 1783, 1794 and

$ 332. Chirac vs. Chirac ; Chief Justice Marshall's opinion, 1817.-During the existence of the French treaty of

1802, a State statute of limitations tected and confirmed by the ninth was not a bar to recovery.

article of the treaty of 1794. Craig vs. Radsord, U. S. Sup. “ These principles are decisive of Ct., 1818, 3 Wheaton, 594, Wash- the objection now under considera-. INGTON, J.

tion. In that case, as in this, the Held, that a British subject was legal title vested in the alien by protected in his title to lands in purchase during the war, and was Virginia under the treaty of 1794 not devested by any act of Virginia, notwithstanding State laws and prior to the treaty of 1794, which regulations as to aliens. Follow- rendered their estates absolute and ing Fairfux vs. Hunter, 7 Cranch, indefeasible.” 603, the opinion says on page 599: Hughes vs. Edwards, U. S. Sup.

“ The last objection made to this ct. 1824, 9 Wheaton, 489, WASHdecree is, that as a British subject, INGTON, J. A decree of foreclosure Wm. Sutherland could not take a and sale affirmed by the Supreme legal title to this land under the Court notwithstanding the obState of Virginia, and, conse-jection that the holder of the quently, that the grant to him in mortgage was an alien, the court 1788 was void, and was not pro- holding that the mortgagee was tected by the treaty of 1794 be- protected in his rights by the protween the United States and Great visions of the treaty of 1794. The Britain.

opinion says, at p. 496: “The decision of this court in “2. The next objection relied the case of Fairfax's Devisee vs. upon is the alienage of the respondHunter's Lessee, 17 Cranch, 603), ents. This objection would not, affords a full answer to this objec- we think, avail the appellants, even tion. In that case the will of Lord if the object of this suit was the Fairfax took effect in the year 1781, recovery of the land itself, since during the war, and Denny Martin, the remedies as well as the rights the devisee under that will, was of these aliens, are completely profound to be a native born British tected by the treaty of 1794, which subject who had never become a declares “that British subjects, citizen of any of the United States, who now hold lands in the terri. but had always resided in England. tories of the United States, etc.,

ruled in that case, shall continue to hold them, ac1st. That although the devisee was cording to the nature and tenure of an alien enemy at the time of the their respective estates and titles testator's death, yet he took an therein; and may grant, sell, or deestate in fee under the will, which vise the same to whom they please, could not, on the ground of alien- in like manner as if they were naage, be devested but by inquest of tives; and that neither they, nor office, or by some legislative act their heirs or assigns, shall, so far equivalent thereto. 2d. That the as respect the said lands, and the defeasible title thus vested in the legal remedies incident thereto, be alien devisee was completely pro- regarded as aliens.' In the cases

" It


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