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as a monument of that learned jurist's legal acumen, but of the ability of the Court to discriminate between those powers which Congress can exercise and those powers which the States must be permitted to exercise even under the widest theories of Federal power.

The esteem with which the opinion in the Slaughter House Cases is held, and the salutary effect of that decision, has been referred to by Mr. Carson in his Centennial History of the Supreme Court, and a full quotation therefrom will be found in the notes to this section. The decision has however, been

tennial celebration of the Univer- eral Government to enforce those sity, June 29th, 1887: “Although provisions, no substantial change this decision did not meet the ap- has been made. The necessity of proval of four out of nine of the the great powers conceded by the Judges, on some points on which constitution originally to the Fedit rested, yet public sentiment, as eral Government, and the equal nefound in the Press, and in the uni- cessity of the autonomy of the versal acquiescence with which it States, and their power to regulate was received, accepted it with great their domestic affairs, remain as unanimity, and although there were the great features of our complex intimations that in the legislative form of government.'" Mr. Carbranches of the Government the son says that this decision is a bulopinion would be reviewed and crit- wark of State authority, the most icised unfavorably, yet no such important and substantial of those thing has occurred in the fifteen erected since the days of Taney, and years which have elapsed since it Mr. Carson quotes the glowing was delivered, and while the ques- terms in which Mr. John S. Wise tion of the construction of these of Virginia expressed himself in reAmendments, and particularly the gard to this decision in his speech Fourteenth, has often been before in reply to the toast of "The Amerthe Supreme Court of the United ican Lawyer,” at the breakfast States, no attempt to overrule or given to the Justices of the Supreme disregard this elementary decision Court of the United States by the of the effect of the three new Con- Bar of Philadelphia, Septemstitutional Amendments upon the ber 15, 1887: relations of the State Governments ,2 " I said that we owed more to the to the Federal Government has American lawyer than to the Amerbeen made; and it may be consid-ican soldier, and I repeat it; for not ered now as settled that, with the all the victories of Grant, or all the exception of the specific provisions marches of Sherman, have by brute in them for the protection of the force done as much to bulwark this personal rights of the citizens and people with the inestimable blesspeople of the United States, and ings of Constitutional liberty as that the necessary restrictions upon the one decision of the Supreme Court States for that purpose, with the in the Slaughter Ilouse Cases, deaddition of the powers of the Gen- claring what of their ancient liber

the subject of criticism by some writers whose views are also referred to in the notes.

ties remained. That decision, i tion must be sought in the words worthy to live through all time for of the Amendment; and the deits masterly exposition of what the bates in Congress are not admissiwar did and did not accomplish, did ble as evidence to control the more than all the battles of the meaning of those words.' But Union to bring order out of chaos. nevertheless, these debates are fre

: . When war had ceased, when quently referred to and are valublood was stanched, when the vic- able as contemporaneous opinions tor stood above his vanquished foe of jurists and statesmen upon the with drawn sword, the Surpeme legal meaning of the words themCourt of this Nation, when it spoke selves.'” in the great decision of the Slaugh Citing Blaine's Twenty Years in ter House Cases, planted its foot Congress, vol. 2, p. 419, as follows: and said, “This victory is not an “ The contentions which have annihilation of State Sovereignty, arisen between political parties as but a just interpretation of Federal to the rights of negro suffrage in the power.'

Southern States, would scarcely be 8 On the other hand Mr. Justice cognizable judicially under either Miller's decision has been criti- the Fourteenth or the Fifteenth cized and commented upon by Amendment to the Constitution. many writers on this subject. Wm. Both of those Amendments operate D. Guthrie, in his recently pub- as inhibitions upon the power of lished monograph, says: “As what the State, and do not have referhave been called the conservative-ence to those irregular acts of the I would say almost hostile—views people which find no authorization of Mr. Justice Miller were clearly in the public statutes. The defect in conflict with the intention of the in both Amendments, in so far as framers of the amendment and for their main object of securing rights many years dwarfed and dulled the to the colored race is involved, lies protective power of the amend- in the fact that they do not operment, it will be interesting to quote ate directly upon the people, and from some of the speeches in Con- therefore Congress is not endowed gress, and thus realize the inten- with the pertinent and applicable tion of the framers. There is, power to give redress. By decimoreover, today in many quarters sions of the Supreme Court, the a remarkable misconception of the Fourteenth Amendment has been intention and purpose of the fram- deprived in part of the power which ers of the Fourteenth Amendment. Congress no doubt intended to imThe debates upon all these ques- part to it. Under its provisions, tions are most interesting and con- as construed by the Court, little, vincing, and should always be if anything, can be done by Conconsulted. It has lately been de gress to correct the evils or avert clared that, 'Doubtless the inten- the injurious consequences arising tion of the Congress which framed from such abuses of the suffrage and of the States which adopted as distinguished the vote of Louisthis Amendment of the Constitu- iana in the Presidential election of

$ 358. California decision in conflict with general rules. -There have also been cases in which State courts have refused to acknowledge the supremacy of treaties, but such instances are few. They are notably in California where an effort was made to uphold the anti-Chinese legislation, which was as we have seen, promptly suppressed by the Federal courts, even, however, earlier than the “Chinese epoch.'

The Supreme Court of the State 1 laid down the rule which it attempted to support by decisions of the Supreme Court of the United States that “A treaty is supreme only when it does not transcend certain limits and that it cannot supersede a State law which enforces or exercises any part of the State power not granted away by the Constitution,” 3

The same court, however, subsequently decided 4 that the treaty with Prussia of 1828 entitled Prussians to inherit, notwithstanding the State laws of California; two opinions were delivered in that case; one of the Justices declared that he could not see that any danger would result from yielding to the Federal Government the full extent of the powers which it might claim from the plain language, intent and meaning of the grant under consideration. The opinion

I have per

1868, and in the numerous flagrant |neous. It appears to me to have cases which followed that baleful thrown away the great gain in the precedent of unrestrained violence domain of civil liberty won by the and unlimited wrong. Those out- terrible exertions of the nation in rages are the deeds of individual the appeal to arms. citizens or of associated masses, fect confidence that the day will acting without authority of law come when it will be seen to be inand in defiance of law. Yet when tensely reactionary and will be a violated public opinion justifies overturned.'" The Fourteenth their course, and when indictment Amendment, by William D. Guthand conviction are impossible, the rie, p. 21. injured citizen loses his rights as $ 358. conclusively as if the law had de 1 People vs. Naglee, Sup. Ct. Cal. nied them, and indeed far more 1850, 1 Cal. 232, BENNETT, J. cruelly.' Also citing:

2 Citing the Passenger and Li"Prof. Burgess's Political Sc. & cense Cases, 5 How. 613; 7 How. 283. Const. Law, vol. I, 225, et seq.: (See citations from, and comments •From whatever point of view I re-on, these cases in SS 468,et seq., post.) gard the opinion of the Court in 3 See p. 246, 1 Cal. Rep. the Slaughter House Cases,- from 4 People vs. Gerke, Sup. Ct. Cal. the historical, political, or juris- | 1855, 5 Cal. 381, HEYDENFETL and tic,-it appears to me entirely erro- BRYAN, JJ.

contains the following statement as to the necessity of vesting this power in the Central Government:5 “Upon some subjects the policy of a State Government, as shown by her legislation, is dependent upon the policy of foreign Governments, and would be readily changed from the principle of mutual concession. This can only be effected by the action of that branch of the State sovereignty known as the General Government, and when effected the State policy must give way to that governmental agent of her foreign relations."

“The treaty-making power of the Federal Government must, from necessity, be sufficiently ample so as to cover all of. the usual subjects of treaties between different powers. If we. were to deny to the treaty-making power of our Government the exercise of jurisdiction over the property of deceased aliens, upon the ground of interference with the course of descents, or the laws of distribution of a State where property may exist; by parity of reasoning we should not make commercial treaties with foreign nations; because, it might be said, some of their provisions would injure the business of a portion of the citizens of one of the States of the Union.

“If the treaty-making power which resides in the Federal Government is not sufficient to permit it to arrange with a foreign nation the distribution of an alien's property, then that power resides nowhere, (since it is denied to the States,) and we must confess our system of government so weak and faulty, as to be incapable of extending to its citizens in foreign lands that protection which is most common amongst a majority of modern civilized nations."

Notwithstanding these opinions, however, the Supreme Court declared in in 1869, that it was no answer in regard to congressional statutes to say that they had been enacted under the treaty-making power because “a treaty is but a part of the law of the land and what is forbidden by the Constitution can no more be done by a treaty than by an act of Congress,” and, relying upon that declaration the court upheld certain laws of California which were appar


5 See pp. 385–6, 5 Cal. Rep.

See also, however, Bodley vs. FerPeople vs. Washington, Sup. Ct. guson, Sup. Ct. Cal. 1866, 30 Cal. Cal. 1869, 36 Cal. 658, RHODES, J; 511, (see p. 517), SHAFTER, J. see p. 668.

ently repugnant to the Fourteenth Amendment, and the Civil Rights Bill.

$ 359. General rule, State statutes must give way when in conflict with treaty stipulations.—The decisions of cases affecting State statutes and treaties show that in all instances the treaty-making power is supreme and that conflicting State statutes must yield, and that State statutes have been upheld only when it clearly appears that they are not in contravention of the treaty stipulations involved. In none of the cases reviewed in this chapter has the treaty-making power of the United States in any way been attacked or affected; the power exists, the treaties have always been declared valid; as to that point no question has been raised; the question for the Court has always been whether the statute conflicts with the treaty or whether it be so construed as to be consistent therewith, for only in such case can it be sustained.

7 Many of the cases involving cases on the subjects involved in questions under the first section of the preceding clause of the Constithe Fourteenth Amendment to the tution, see Lectures on the FourConstitution of the United States, teenth Article of Amendment to and the Civil Rights Bill are appli- the Constitution of the United cable to cases involving the usual States by "William D. Guthrie, treaty stipulations in regard to ac- Boston, 1898; also, A Treatise on cording to citizens of the other the Rights and Privileges Guarnation the same rights that are ac- anteed by the Fourteenth Amendcorded to citizens of the United ment to the Constitution of the States. The Fourteenth Amend- United States by Henry Brannon, ment provides: Ҥ 1. All persons Judge of the Supreme Court of born or naturalized in the United West Virginia, Cincinnati, 1901. States, and subject to the juris It can readily be seen that decidiction thereof, are citizens of the sions as to whether or not State United States and of the State laws are Constitutional as viewed wherein they reside. No State in the light of the Fourteenth shall make or enforce any law Amendment would be applicable which shall abridge the privileges i in many respects to questions afor immunities of citizens of the fecting rights guaranteed by the United States; por shall any State Federal government under treaty deprive any person of life, liberty, stipulations to citizens of foreign or property, without due process governments. of law; nor deny to any person

$ 359. within its jurisdiction the equal 1 Fisher vs. Harnden, U. S. Cir. protection of the law."

Ct. N. Y. 1812, 1 Payne, C. C. 55, For exhaustive collections of LIVINGSTON, J. (Afterwards re

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