the day appeared as counsel. Justices Chase, Patterson, Wilson and Cushing all concurred in reversing the judg ment 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.1

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." 2

Mr. Justice Paterson concluded his opinion with the

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."3

§ 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."1

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.2 . 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."

8 Idem, p. 256.

§ 327.

13 Dallas, p. 281.

2 Idem, p. 282.

& Idem, p. 284.

§ 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 embarrass

ments 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.

provided. 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. § 329.

2

1 For Justice Story's opinion as to the qualifications of the members of the Supreme Court, see note under § 143, pp. 246-247, Vol. I.

2 For the part taken by Justice Wilson in the Federal Convention see § 182, p. 314, Vol. I; for the part which he took in the Pennsylvania State Convention, see § 199, p. 341, 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

See § 227, p. 366, Vol. I. 4 See § 253, p. 389, Vol. I. See § 249, p. 387, Vol. I. § 330.

important principle that the Treaty of Peace, like the Constitution, was in respect to matters embraced by 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.

Mr. Carson, the historian of the Supreme Court, in his Centennial History, on page 169, after referring to the case of the State of Georgia vs. Brailsford, says:

"This decision, although not elaborately expressed, involved the

the most exhaustive examination in the far more celebrated case of Ware vs. Hylton, in which the splendid eloquence of Patrick Henry, the great reasoning faculties of John Marshall at the bar, and the powerful dissenting opinion of Iredell were employed in