delivered his opinion, giving his individual views. Justice Swayne's mistake in supposing that Justice Chase delivered the opinion of the court seems to be a mistake common to the profession, and shows to what extent the case has been misleading. The authority of the case would indeed be binding if Justice Chase had delivered the opinion of the Court. His opinion was clearly the ablest and most logical of those delivered in the case. He considered first whether Virginia had the right to pass the law of 1777, and held that she did have the right. Next, he considered the question whether having the right to enact it, did the Virginia law confiscate British debts, and he held that it did. The law being valid and its effect being to confiscate a British debt, a clear conflict existed between the treaty and the law, unless you take the view suggested by Judge Marshall. If his premises were correct there was no escape from his conclusion. In the opinion of a majority of the Court, however, as we have seen, his premises were not correct. It seemed to have been the evident intention of the framers of the Constitution to adopt all treaties of the old government without question as to their validity under the new Constitution and make them valid, but the ratification or acceptance of the obligations of the old government in the form of treaties, should in no wise control the construction to be given the treatymaking power under the Constitution of the United States with its many constitutional limitations. 1 Senator Elihu Root, in delivering his address as President of the American Society of International Law, April 19, 1907, at Washington, D. C., quoted from the opinion of Justice Chase in Ware v. Hylton and referred to it as the opinion of the Court. (Proceedings of the American Society of International Law, First Annual Meeting, p. 53.) At the same meeting, in addresses upon the Treaty-making Power under the Constitution, Professor Theodore P. Ion, of the Boston University Law School, referred to Justice Chase's opinion as the opinion of the Court in Ware v. Hylton. Id., p. 130. Dean Charles Noble Gregory, of the Law School of George Washington University, also referred to Justice Chase's opinion as the opinion of the Court. Id., p. 155. § 181. But there were other considerations undoubtedly quite potential which entered into the decision of Ware v. Hylton that cannot be overlooked, for as certain as the human body is affected by conditions of the atmosphere in which it lives, or the vegetable kingdom assumes colorings from the character of the soil from which it draws its life, so surely are courts unconsciously influenced by the political or moral atmosphere by which they are surrounded. The influence of public opinion upon the decisions of the highest courts of the land has been recognized by the Supreme Court itself. In Ex parte Milligan,1 Justice David Davis used the following language: "The importance of the main question presented by this record cannot be overstated; for it involves the very framework of the government and the fundamental principles of American liberty. "During the late wicked Rebellion the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment." In Hepburn v. Griswold,2 Chief Justice Chase recognized the same fact in the following language: "It is not surprising that amid the tumult of the late civil war, and under the influence of apprehensions for the safety of the Republic almost universal, different views, never before entertained by American statesmen or jurists, were adopted by many. The time was not favorable to considerate reflection upon the constitutional limits of legislative or executive authority. If power was assumed from patriotic motives, the assumption found ready justification in patriotic hearts. Many who doubted yielded their doubts; many who did not doubt were silent." 14 Wall. 109, 18 L. ed. 281. 28 Wall. 625, 19 L. ed. 513. § 182. The country had just been through seven years of war; the resources of the people had been exhausted thereby. Poverty, debt, and taxation were pressing upon them These conditions found a natural outlet in the attempt to break the bonds that bound them to their British creditors. The passage of repudiation or confiscation acts in most of the States, and every device that human ingenuity could devise, seemed to have been exhausted in their efforts to free themselves from debt at any expense or any cost. Depreciated currency, stay laws, exemption laws and the like, filled the statute books in defiance of their voracious creditors. Before the adoption of the Constitution, Congress felt impelled to call attention, by resolution, to these conditions that threatened the good name of the country at home and abroad. The Constitution, just adopted, forbade any State from impairing the obligation of contracts. The official conscience of the young empire was aroused, and the Judges who sat in the case of Ware v. Hylton and gave their decisions show that these conditions were uppermost in their minds, and that they were fully determined to meet the spirit of repudiation that was abroad in the land with the wholesome lesson of courageous honesty. Hear the language of Justice Paterson : 1 "Confiscation of debts is considered a disreputable thing among civilized nations of the present day. . . . I feel no hesitation in declaring, that it has always appeared to me to be incompatible with the principles of justice and policy, that contracts entered into by individuals of different nations, should be violated by their respective governments in consequence of national quarrels and hostilities. National differences should not affect private bargains. The confidence, both of an individual and national nature, on which the contracts were formed, ought to be preserved inviolate. Is not this the language of honesty and honor? Does not the sentiment correspond with the principles of justice, and the dictates of the moral sense? In short, is it not the result of right reason and natural equity?... "Contracts entered into in such a state of things, ought to 1 1 p. 255. be sacredly regarded. Inviolability seems to be attached to them. Considering then the usages of civilized nations, and the opinion of modern writers, relative to confiscation, and also the circumstances under which these debts were contracted, we ought to take the expressions of this fourth article in their most extensive sense. We ought to admit of no comment, that will narrow and restrict their operation and import. The construction of a treaty made in favor of such creditors, and for the restoration and enforcement of pre-existing contracts, ought to be liberal and benign. For these reasons, this clause in the treaty deserves the utmost latitude of exposition." Justices Cushing and Iredell, in their opinions, emphasize the same principles. § 183. Such is Ware v. Hylton! A case that for one hundred and eighteen years has been cited by statesmen, authors, and writers as having finally determined the question of the supremacy of a treaty over State laws, when, as we have seen, Marshall, the great counsellor, rested his case in the argument on other grounds entirely, and did not discuss that question; when Justice Chase, who delivered the leading opinion in the case, doubted his authority to decide such a question if it was involved in the case; and when the pleadings in the case show, not only that it was not, but that that question could not have been decided, since a majority of the court were of the opinion that the Virginia law was invalid or inoperative. CHAPTER VIII THE CLAIM OF SUPREMACY OF THE TREATY POWER OVER § 184. The advocates of the unlimited scope of the treatymaking power rest their argument largely upon the language of Article VI of the Constitution, which declares that treaties are "the supreme law of the land," and without reference to its relation to the other clauses of the Constitution, but considering merely the language of this clause, they assert its supremacy over all else, including the Constitution itself, and at one stroke seek to obliterate the whole scheme of the Constitution with its limitations and prohibitions, and establish this one power, affecting the relations of our country and its people with foreign nations, as the one supreme unlimited power in our system. They deny the limitations as to treaties which they admit apply to laws of Congress, and while conceding that every law must be constitutional, they deny such requirements in a treaty. The executive, the legislative, and the judicial powers of the Constitution, subject to the limitations of the Constitution which creates them, must be exercised within prescribed limits or be set aside by the judiciary whose province it is to preserve within proper bounds every department of the Constitution. The Congress may not exceed its powers granted by the Constitution; the President may not; the Judiciary may not; the States may not; but the treaty-making power, declared to be |