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be even the subject of discussion, that no matter what individual views or conscientious scruples any officer of the Government, adıninistrative or judicial, may have, he must subordinate them, in the performance of his duties, to the decisions of the judicial department of the Government, and he can only fulfill the obligation of his oath to support the Constitution of the United States by doing so in accordance with the lines which have been established by the Federal Courts of last resort.

$ 322. Views of publicists and courts as to extent and scope of treaty-making power.-In this chapter we purpose to enlarge upon the opinion expressed in the introduction to this volume as to the great extent of the treaty-making power of the United States, and to show the manner in which the Constitutional provisions affecting treaties have been construed and interpreted, by the Supreme Court of the United States; and not only that all of the Federal Courts, which are of course bound to do so, have followed these decisions, but that the construction of the law, as expressed by the highest Federal tribunal, has been unanimously accepted as the law of the land by the courts of last resort of many of the States; that in so doing they have accepted it, not because they have been forced so to do, but, because they have recognized the reasonableness of the proposition, as well as the great benefits which have inured to the States themselves as the result of empowering the Central Government to act as the exclusive, and fully authorized, agent of the several States in determining the relations of the United States with foreign powers.

$ 323. Treaty-making power to be considered as to scope and extent, effect on State legislation, and relative effect of treaties and Congressional statutes. The subject can properly be considered in three aspects. First, the scope of the treaty-making power as vested in the United States and as determined by the Federal Courts; second, the superiority of treaty stipulations as to all conflicting State legislation, either past, present or future; third, the relative effect of treaties and Congressional legislation. April 15, 1834, Richardson's Mes

sages of the Presidents, vol. 111

, JPP. 69, et seq. See p. 71.


The first subdivision has been the subject of preceding chapters, but it will also be referred to in subsequent chapters; the third subdivision will be reserved for a separate consideration in the next chapter; the second subdivision will be the subject-matter of this chapter which will be devoted to revewing the decisions of the courts in cases which have involved the relative effect of treaty provisions and State statutes.

8 324. First important treaty case; Ware vs. Hylton. - The first important cases involving treaties and the treatymaking power which reached the Supreme Court did not relate to a treaty made by the President and ratified by the Senate under the Constitution, but one which had been made under the Confederation—the Definitive Treaty of Peace of 1783 with Great Britain; the point involved was how far did that treaty override State statutes in regard to the collection and confiscation of ante bellum debts owed by Americans to citizens of Great Britain.

In Ware vs. IIylton,' a British subject sued citizens of Virginia, on a debt contracted prior to the war; the debtors pleaded, amongst other things, abrogation of the debt by war, confiscation of the debt by the State of Virginia as a war measure, and also a partial payment to the State as owner of the debt by confiscation; the plaintiff replied, setting up the Definitive Treaty of Peace of 1783 and the ratification thereof by Article VI of the Constitution of the United States, making it the supreme law of the land, and, therefore, paramount to all State legislation past and future. Thus at the very outset of the operation of constitutional power, a direct conflict arose between State sovereignty and the right of the Federal Government to modify State laws under the treaty-making power.

$ 325. Far-reaching effect of decision in Ware vs. Hyl. ton; five opinions delivered. - Nearly two hundred pages of the third volume of Dallas's Reports are devoted to the record of this case : five of the seven Justices delivered separate opinions and many of the prominent lawyers of

$ 324.

from opinions delivered in this case, 1 Ware vs. Hylton, U. S. Sup. Ct. see $S 325 et seq. post. 1796, 3 Dallas, 199. For extracts

the day appeared as counsel. Justices Chase, Patterson, Wilson and Cushing all concurred in reversing the judgment of the lower court, which had dismissed the bill; Justice Iredell, who had heard the case below as Circuit Judge, delivered the only dissenting opinion. The opinions in this case alone, had they never been cited and approved in subsequent decisions, would be sufficient to justify any Commissioners, concluding a treaty for the United States, in making whatever absolute stipulations might, in their opinion, be necessary and proper in order to gain any desired results, and in regard to any matters, whether exclusively within the control of the States or not; and clothe the Central Government with ample power to enter into, and enforce, all such treaty stipulations.'

A few extracts from the opinions which apply directly to the subject under discussion, will remove all doubt as to Federal jurisdiction and power in such cases.

$ 326. Opinions of Justices Chase and Paterson._Mr. Justice Chase in his opinion shows that the whole question is that "the only impediment to the recovery of the debt in question is, the law of Virginia, and the payment under it; and the treaty relates to every kind of legal impediment. But it is asked, did the fourth article intend to annul a law of the states ? and destroy rights acquired under it? I answer, that the fourth article did intend to destroy all lawful impediments, past and future; and that the law of Virginia, and the payment under it, is a lawful impediment; and would bar a recovery, if not destroyed by this article of the treaty.

Our Federal Constitution establishes the power of a treaty over the constitution and laws of any of the States; and I have shown that the words of the fourth article were intended, and are sufficient to nullify the law of Virginia, and the payment under it.” ?

Mr. Justice Paterson concluded his opinion with the

8 325.

at length in note to $ 159, p. 277, 1 The articles of the treaty in- Vol. I. volved in this action and which re- $ 326. lated to the collection of debts due 13 Dallas p. 242; italics are so in from citizens of the one county to the original. citizens of the other, are quoted 2 Idem, p. 244.

statement that the clause in the treaty under consideration deserved the utmost latitude of exposition, saying:

“The fourth article embraces all creditors, extends to all pre-existing debts, removes all lawful impediments, repeals the legislative act of Virginia, which has been pleaded in bar, and with regard to the creditor annuls everything done under it.'

$ 327. Opinions of Justices Wilson and Cushing.-Mr. Justice Wilson devotes one half of a concise opinion of less than a page to the point under consideration, and says:

“Even if Virginia had the power to confiscate, the treaty annuls the confiscation. The fourth article is well expressed to meet the very case: it is not confined to debts existing at the time of making the treaty ; but is extended to debts heretofore contracted. It is impossible by any glossary, or argument, to make the words more perspicuous, more conclusive, than by a bare recital. Independent, therefore, of the Constitution of the United States, (which authoritatively inculcates the obligation of contracts) the treaty is sufficient to remove every impediment founded on the law of Virginia.

The State was a party to the making of the treaty; a law does nothing more than express the will of a nation; and a treaty does the same.'

Justice Cushing, who was the last member of the Court to deliver an opinion, disposes of this element of the case as follows: “The State may make what rules it pleases, and those rules must necessarily have place within itself. But here is a treaty, the supreme law, which overrules all State laws upon the subject, to all intents and purposes; and that makes the difference.?

To effect the object intended, there is no want of proper and strong language; there is no want of power, the treaty being sanctioned as the supreme law, by the constitution of the United States, which nobody pretends to deny to be paramount and controlling to all state laws, and even state constitutions, wheresoever they interfere or disagree. The treaty, then, as to the point in question, is of equal force with the Constitution itself; and certainly, with any law whatsoever.” 3



2 Idem, p. 282.
3 Idem, p. 284.

Idem, p. 256. $ 327. 13 Dallas, p. 281.


$ 328. Justice Iredell's dissenting opinion.—Justice Iredell dissented from the final result reached by the Court; he did not base his dissent, however, upon any lack of power in the Central Government to bind the States; in regard to the treaty-making power he used these words:

“I consider the treaty, (speaking generally, independent of the particular provisions on the subject, in our present Constitution, the effect of which I shall afterwards observe upon) as a solemn promise by the whole nation, that such and such things shall be done, or that such and such rights shall be enjoyed.”

Although this opinion dissented as to the general result, it contains a strong exposition of the right of the United States to make treaties in regard to State matters. Justice Iredell declared that the Confederation did not have the power necessary to enforce the treaty of 1783, and expressed as his opinion, that a British creditor could not have maintained a suit under the treaty of 1783 in any State where an impediment existed by reason of a State act before the present Constitution of the United States had been formed; he made the following statement, which he gave as his reason for the existence of Article VI of the Constitution :

“The article in the constitution concerning treaties I have always considered, and do now consider, was in consequence of the conflict of opinions I have mentioned on the subject of the treaty in question. It was found in this instance, as in many others, that when thirteen different legislatures were necessary to act in union on many occasions, it was in vain to expect that they would always agree to act as Congress might think it their duty to require.

The right and power being separated, it was found often impracticable to make them act in conjunction.

Similar embarrassments had been found about the treaty. This was binding in moral obligation, but could not be constitutionally carried into effect (at least in the opinion of many,) so far as the acts of legislation then in being constituted an impediment, but by a repeal. The extreme inconvenience felt from such a system dictated the remedy which the Constitution has now

$ 328.
13 Dallas, p. 271.

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