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§ 13a. By whom expounded and enforced (Distinguished from statute).- A treaty differs greatly in some respects from a statute. If parties, under the latter, acquire rights, they go to the courts to obtain them, and from their determination thereon there is no appeal to any other department of the government. Hence the courts are necessarily the exclusive ex

relative to the Transmission of Real with France gave to her citizens the Estate to Aliens,” published in 1871: right to purchase and hold land in "Whether the treaty-making power the United States, removed the inof the general government is compe- capacity of alienage, and placed them tent to enter into stipulation with in precisely the same situation as if foreign powers, affecting the trans- they had been citizens of this counmission of real estate and other mat- try. The state law was hardly adters generally considered to be of verted to, and seems not to have been state cognizance, has been made a considered a factor of any imporquestion in the supreme court of the tance in this view of the case. The United States. Though that tribunal same doctrine was reaffirmed touchhad previously recognized as the su- ing this treaty in Carneal v. Banks, preme law of the land the treaty of 10 Wheat. 181, and with respect to 1794 with England, by which, ac- the British treaty of 1794, in Hughes cording to Attorney-General Cush- v. Edwards, 9 Wheat. 489. A treaty ing, 'all impediment of alienage was stipulation may be effectual to proabsolutely leveled to the ground de- tect the land of an alien from forspite the states' (Fairfax v. Hunter, 7 feiture by escheat under the laws of Cranch, 603), yet in the case of Fred. a state. Orr v. Hodgson, 4 Wheat. erickson v. S., 23 How. (U. S.) 445, it 453. By the British treaty of 1794, abstained, even though the question 'all impediment of alienage was abbefore it referred merely to personal solutely leveled with the ground, property, from expressing an opinion despite the laws of the states. It is as to the competency of the govern- the direct constitutional question in ment of the United States to regu. its fullest conditions. Yet the sulate, by treaty, testamentary dispo- preme court held that the stipulation sitions or laws of inheritance within was within the constitutional powers the states.” Pages 45–47. Now, the of the Union. Fairfax v. Hunter, 7 constitution of the United States de Cranch, 608, 627. See Ware v. Hylton, clares treaties to be supreme over 3 Dall. 199, 242;' 8 Opin. Att. Gen. state laws and constitutions in just 417. Mr. Calhoun, after laying down the same words as it declares itself certain exceptions and qualifications to be. How, then, can there be doubt? which do not affect this case, says: And, in point of authority, in the last Within these limits all questions case before me on the subject, the which may arise between us and supreme court of the United States other powers, be the subject-matter held that our treaty with the Swiss what it may, fall within the treatyConfederation superseded the Vir- making power and may be adjusted ginia state laws of inheritance. Said by it.' Treat. on the Const. and Gov. Swayne, J., in delivering the opinion: of the U.S. 204.” Hauenstein u Lyn. “In Chirac v. Chirac, 2 Wheat. 259, ham, 100 U. S. 483, 489, 490. it was held by this court that a treaty


pounders of the statute, and, so far as its validity is a question of constitutional law, of the constitution also. But, if another nation claims of ours a right under a treaty, it does not ordinarily undertake the enforcement thereof in our courts, it makes application to the executive department of our government. Hence, to the extent to which this doctrine is applicable, the ultimate interpretation of the treaty is beyond the judicial jurisdiction. So likewise the power which makes and conducts war may refuse to fulfill a treaty, and the courts must follow the lead. But, in the absence of any lead by the treaty-making or the war power, the courts must construe and enforce a treaty as they would any other law. So in reason the question stands, and the adjudications are not widely different. Now,

$ 14. Treaty and statute in conflict.— Congress, by the constitution, has the power to declare war. As a measure of war, therefore, it can abrogate, hence it can violate, a treaty. But, aside from this power, as it cannot make a treaty, so therefore it cannot annul one. Such plainly is the view which should govern the legislative body, and from which it cannot without a dereliction of duty depart. The result of which is that, in general, a treaty takes precedence of a statute. But if congress, having power to override a treaty as an act of war, in disregard of its constitutional duty herein trenches upon it from other motives, can the courts look into the motives and hold the statute to be therefore void ? The judicial doctrine appears to be established that they cannot, so that practically an act of congress is superior to a prior treaty, while also a treaty may supersede an act of congress."

1 Const. U. S., art. 1, $ 8.

and controls all prior attempts by 2 Post, S 38.

treaty to dispose of them. Every 3 The Cherokee Tobacco, 11 Wall. treaty with foreign nations or de616; U. S. v. Tobacco Factory, 1 Dill. pendent tribes of Indians yields to a 264; Webster v. Reid, Morris, 467; later act of congress in relation to a Ropes v. Clinch, 8 Blatch. 304; Lang subject-matter within its jurisdicford v. U. S., 12 Ct. of Cl. 338. In an tion. Congress has passed many such able argument, now before me, by acts, and the courts yield .to the will Hon. William Lawrence, he says: of the legislature' always.” He ro " It is so well settled that congress fers to “Act July 17, 1798, 1 Stat. 578; can by law dispose of the public 2 Curt. C. C. 460; 3 Opin. Att. Gen. lands that no one controverts it. It 737; Act March 26, 1804; Foster v. is equally certain, and will not be Neilson, 2 Pet. 253, 303, 307; Joint denied, that this power is superior to Resolution, April 10, 1869, 16 Stato

Judicial effect - Interpretation.— In the absence of any ac

tion of the political department binding the courts, they take judicial notice of a treaty, and give it effect, precisely as they do the constitution and acts of congress. Hence they must and do interpret the treaty;? yet, where the political depart

55; Osage Treaty, 1865, 14 Stat. 687; judiciary to prevent it. True, a Act July 15, 1870, $ 12, 16 Stat. 362; treaty is by the constitution declared same treaty, arts. 1, 2 and 17; Act to be a supreme law of the land, but Feb. 21, 1863, 12 Stat. 658–1101; Act so is an act of congress. The latter Feb. 16, 1863, 12 Stat. 652; Act Jan. may repeal the former in the same 29, 1861, erected state of Kansas; manner that one statute may repeal Art. 5, Cherokee Treaty, Dec. 1835, another. It is an act of sovereignty, and other treaties; (U. S. v. Lynde,] which, if the judiciary could arrest, 11 Wall. 632: Taylor v. Morton, 2 Curt. they might paralyze all the energies C. C. 454, 458; The Clinton Bridge, 1 of the war itself, on the ground that Woolw. 150, 155; Mitchell v. U. S., 9 the declaration of war was a violaPet. 711, 712; Act June 30, 1834, 4 tion of treaties.” Mason, C. J., in Stat. 729; Act March 30, 1802, 2 Stat. Webster v. Reid. supra, at pp. 477, 478. 141.” The reader perceives that the The fact that the constitution does question is here put in not quite the not in words declare the order of same form as in my text, though the precedence between a statute and a effect of the doctrine is not different. treaty should, it is believed, have no So, in the supreme court of the weight in the argument. It does United States, Swayne, J., in deliv- not say whether itself or a statute ering the opinion, said: “The effect shall be of the greater effect; and of treaties and acts of congress, when the result that a statute is void which in conflict, is not settled by the con- violates it is a mere deduction of stitution. The question is not in- construction. By a like construcvolved in any doubt as to its proper tion it results “that,” in the words solution. A treaty may supersede a of Swayne, J., in the above case of prior act of congress (Foster v. Neil- The Cherokee Tobacco, “a treaty son, 2 Pet. 253, 314) and an act of con- cannot change the constitution, or gress may supersede a prior treaty. be held valid if it be in violation of Taylor v. Morton, 2 Curt. C. C. 454; that instrument."

Under The Clinton Bridge, 1 Woolw. 150, the constitution the treaty-making 155.

The consequences, in power is not in congress, but in the all such cases, give rise to questions president and senate. Congress can which must be met by the political declare war. In any exercise of the department of the government. They war power it may violate a treaty. are beyond the sphere of judicial But, by construction, since it cannot cognizance.” The Cherokee Tobacco, make one, it cannot otherwise than supra, at p. 621.

Another learned as a measure of war unmake one. judge said: “Government is cer. Still the courts do, doubtless proptainly under the strongest moral ob- erly, decline jurisdiction to rectify a ligation to preserve inviolate the wrong of this sort. (See Horner v. faith of all treaties; but if the legis. U. S., 143 U. S. 570.] lative power, which in such matters 1 Martin v. Hunter, 1 Wheat. 304; is sovereign, sees proper to violate Clark v. Braden, 16 How. (U. S.) 635. this duty, there is no power in the 2 Crim. Pro., I, § 224; Holden v.

p. 620.



ment has spoken, they follow its interpretation,' deeming themselves to be, in the words of Eyre, C. J., in an English case, “not even the expounders of treaties.”? When a statute and a treaty have been made with reference to each other, to carry out a common object, they are to be construed together. And no statute will be so construed as to violate a treaty, when any other interpretation is reasonably permissible."

Treaty requiring legislation.- A treaty, like a clause of the constitution, requires in some circumstances a statute to give it practical effect, and in others it does not. Without legislation it may annul a conflicting state law. If, for example, it declares the subjects of the foreign power entitled to hold or inherit lands in our states the same as though they were citizens of the United States, it overrides at once every conflicting state law and becornes law in each state.? In the nature of things, no act of congress is required to give effect to such a treaty. But one which provides for the surrendering, to the foreign power, of certain classes of offenders against its laws would seem not to confer, without legislation, on any particular officer a jurisdiction to carry the stipulation into effect; hence, to render it effectual, an act of congress is required. Still there are distinctions on this subject not best to be entered into here."

Joy, 17 Wall. 211; Gray v. Coffman, 3 Green v. Aker, 11 Ind. 223; Com. v. Dill. 393; Hicks v. Butrick, 3 Dill. 413; Collis, 10 Phila. 430; Com. v. HardOliver v. Forbes, 17 Kan. 113; Fox v. ing, 87 Pa. St. 343. Southack, 12 Mass. 143; Com. v. Bris- 6 Fisher v. Harnden, 1 Paine, 55; tow, 6 Call, 60; Fellows v. Black Opinion of Justices, 68 Me. 589. smith, 19 How. (U. S.) 366; Wilson v. 7 Chirac v. Chirac, 2 Wheat. 259; Wall, 34 Ala. 288; [Scharpf v. Schmidt, Orr v. Hodgson, 4 Wheat. 453; Hughes 172 III. 255, 50 N. E. R. 182.]

v. Edwards, 9 Wheat. 489; Carneal v. IU. S. v. Arredondo, 6 Pet. 691, 711; Banks, 10 Wheat. 181; P. v. Gerke, 5 Foster u. Neilson, 2 Pet. 253, 309; Gar. Cal. 381; Succession of Prevost, 12 cia v. Lee, 12 Pet. 511; U. 8. v. Reynes, La. An. 577; Succession of Dufour, 10 9 How. (U. S.) 127, 153, 154; Williams La. An. 391; Succession of Mager, v. Suffolk Ins. Co., 13 Pet. 415, 420. 12 Rob. (La.) 584; Droit d'Aubaine, 8

2 Marryat v. Wilson, 1 B. & P. 430, Opin. Att. Gen. 411; [Kull v. Kull, 37 433.

Hun (N. Y.), 476.] 3 Reg. v. Wilson, 3 Q. B. D. 42; 8 In re Metzger, 1 Barb. 248. As (Whitney v. Robertson, 124 U. S. 195.) confirming this principle, see Turner

4 Leavenworth, etc. R. R. Co. v. American Baptist Missionary U. S., 92 U.S. 733, 742; (Chew Heong Union, 5 McLean, 345; Taylor v. v. U.S., 112 U. S. 536; In re Ah Lung, Morton, 2 Curt. C. C. 454. See In re 18 Fed. R. 28.)

Metzger, 5 How. (U. S.) 176. Ante, & 11a, note; post, $ 926; 9 Consult British Prisoners, 1


Marshall, C. J., once stated in the supreme court of the United States the doctrine as follows: “Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court.” 1


§ 15. In general.- Whether we deem an act of congress superior or inferior to a treaty, or equal with it, the national constitution places it, like this instrument itself, above every sort of state law, written or unwritten, constitutional or statutory. To have this effect it must, of course, be within the powers conferred on congress.“



$ 16. In general.— Though, as just explained, the constitution of a state must give way to the constitution of the United States, and to national treaties and statutes made in pursuance thereof, in all other particulars it is the supreme law of the particular state, and to it all conflicting statutes and other laws must yield.

V. STATE STATUTES. $ 17. In general.- Practically, in most things, the statutes of the state are the highest authorities known to the court; because only of comparatively a few questions do the superior laws above mentioned have jurisdiction. A statute is superior

Woodb. & M. 66; Ex parte Metzger, 3 Const. U. S., art. 6. 5 N. Y. Leg. Obs. 83; In re Kaine, 10 Ante, $ 13; Story, Const., 8 1837. N. Y. Leg. Obs. 257; Robbins' Case, 6 In re Goode, 3 Mo. A p. 226; Loftin Whart. St. Tr. 392; S. 6. nom. U. S. v. Watson, 32 Ark. 414; Sovereign v. v. Nash, Bee, 266.

S., 7 Neb. 409; Indiana v. Agricultural 1 Foster v. Neilson, 2 Pet. 253, 314. Society, 85 Pa. St. 357; Pierce v. And see Taylor v. Morton, 2 Curt. C. Pierce, 46 Ind. 86; S. v. Lancaster, 6 C. 454; Jones v. Walker, 2 Paine, 688; Neb. 474; Frye v. Partridge, 82 Ill. [Whitney v. Robertson, 124 U. S. 190.] 267; Haley v. Philadelphia, 153 Pa. St. 2 Ante, $ 12.

45, (8 Am. R. 68.)

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