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. 2 Post, § 38.

The Cherokee Tobacco, 11 Wall. 616; U. S. v. Tobacco Factory, 1 Dill. 264; Webster v. Reid, Morris, 467; Ropes v. Clinch, 8 Blatch. 304; Langford v. U. S., 12 Ct. of Cl. 338. In an able argument, now before me, by Hon. William Lawrence, he says: "It is so well settled that congress can by law dispose of the public lands that no one controverts it. It is equally certain, and will not be denied, that this power is superior to

and controls all prior attempts by treaty to dispose of them. Every treaty with foreign nations or dependent tribes of Indians yields to a later act of congress in relation to a subject-matter within its jurisdiction. Congress has passed many such acts, and the courts yield to the will of the legislature' always." He refers to " Act July 17, 1798, 1 Stat. 578; 2 Curt. C. C. 460; 3 Opin. Att. Gen. 737; Act March 26, 1804; Foster v. Neilson, 2 Pet. 253, 303, 307; Joint Resolution, April 10, 1869, 16 Stat.

Judicial effect - Interpretation. In the absence of any action 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

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 de

clares 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 becomes 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 Dill. 393; Hicks v. Butrick, 3 Dill. 413; Oliver v. Forbes, 17 Kan. 113; Fox v. Southack, 12 Mass. 143; Com. v. Bristow, 6 Call, 60; Fellows v. Blacksmith, 19 How. (U. S.) 366; Wilson v. Wall, 34 Ala. 288; [Scharpf v. Schmidt, 172 Ill. 255, 50 N. E. R. 182.]

1 U. S. v. Arredondo, 6 Pet. 691, 711; Foster v. Neilson, 2 Pet. 253, 309; Garcia v. Lee, 12 Pet. 511; U. S. v. Reynes, 9 How. (U. S.) 127, 153, 154; Williams v. Suffolk Ins. Co., 13 Pet. 415, 420. 2 Marryat v. Wilson, 1 B. & P. 430, 433.

Reg. v. Wilson, 3 Q. B. D. 42; [Whitney v. Robertson, 124 U. S. 195.] 4 Leavenworth, etc. R. R. Co. v. U. S., 92 U. S. 733, 742; [Chew Heong v. U. S., 112 U. S. 536; In re Ah Lung, 18 Fed. R. 28.]

5 Ante, § 11a, note; post, § 926;

Green v. Aker, 11 Ind. 223; Com. v. Collis, 10 Phila. 430; Com. v. Harding, 87 Pa. St. 343.

6 Fisher v. Harnden, 1 Paine, 55; Opinion of Justices, 68 Me. 589.

7 Chirac v. Chirac, 2 Wheat. 259; Orr v. Hodgson, 4 Wheat. 453; Hughes v. Edwards, 9 Wheat. 489; Carneal v. Banks, 10 Wheat. 181; P. v. Gerke, 5 Cal. 381; Succession of Prevost, 12 La. An. 577; Succession of Dufour, 10 La. An. 391; Succession of Mager, 12 Rob. (La.) 584; Droit d'Aubaine, 8 Opin. Att. Gen. 411; [Kull v. Kull, 37 Hun (N. Y.), 476.]

8 In re Metzger, 1 Barb. 248. As confirming this principle, see Turner V. American Baptist Missionary Union, 5 McLean, 345; Taylor v. Morton, 2 Curt. C. C. 454. See In re Metzger, 5 How. (U. S.) 176.

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 legis lature, 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."

III. AOTS OF CONGRESS.

§ 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.*

IV. THE CONSTITUTIONS OF THE SEVERAL STATES.

§ 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, 5 N. Y. Leg. Obs. 83; In re Kaine, 10 N. Y. Leg. Obs. 257; Robbins' Case, Whart. St. Tr. 392; s. c. nom. U. S. v. Nash, Bee, 266.

1 Foster v. Neilson, 2 Pet. 253, 314. And see Taylor v. Morton, 2 Curt. C. C. 454; Jones v. Walker, 2 Paine, 688; [Whitney v. Robertson, 124 U. S. 190.] 2 Ante, § 12.

3 Const. U. S., art. 6.

Ante, § 13; Story, Const., § 1837. In re Goode, 3 Mo. Ap. 226; Loftin v. Watson, 32 Ark. 414; Sovereign v. S., 7 Neb. 409; Indiana v. Agricultural Society, 85 Pa. St. 357; Pierce v. Pierce, 46 Ind. 86; S. v. Lancaster, 6 Neb. 474; Frye v. Partridge, 82 Ill. 267; Haley v. Philadelphia, 153 Pa. St. 45, [8 Am. R. 68.]

alike to the unwritten law, which it supersedes in a case of conflict, and to a municipal by-law.1 Even

Colonial statute.—A colonial statute appears to have the same effect as any other."

VI. BY-LAWS OF MUNICIPAL CORPORATIONS.

§ 17a. In general.- By-laws of municipal corporations are subject to be controlled by statutes, and in the main by the unwritten law, giving way when in conflict with either. shall now devote to them a separate chapter.

1 Field v. Des Moines, 39 Iowa, 575, [18 Am. R. 46,] and other cases cited to the next section.

2 Brice v. S., 2 Tenn. 254.

'Field v. Des Moines, 39 Iowa, 575, [18 Am. R. 46]; Vestry v. Mathews, 4 Des. 578; S. v. Curtis, 9 Nev. 325;

13

We

Thomas v. Richmond, 12 Wall. 349; Lisbon v. Clark, 18 N. H. 234; Canton v. Nist, 9 Ohio St. 439; Thompson v. Mt. Vernon, 11 Ohio St. 688; S. v. Crummey, 17 Minn. 72; S. v. Lindsay, 34 Ark. 372.