the subject of criticism by some writers whose views are also referred to in the notes.3 ties remained. That decision, | 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 freWhen 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 Slaughter House Cases, planted its foot and said, 'This victory is not an annihilation of State Sovereignty, but a just interpretation of Federal power.'" Citing Blaine's Twenty Years in Congress, vol. 2, p. 419, as follows: "The contentions which have arisen between political parties as to the rights of negro suffrage in the Southern States, would scarcely be cognizable judicially under either the Fourteenth or the Fifteenth 3 On the other hand Mr. Justice Miller's decision has been criticized 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 of Mr. Justice Miller were clearly in conflict with the intention of the framers of the amendment and for many years dwarfed and dulled the protective power of the amendment, it will be interesting to quote from some of the speeches in Congress, and thus realize the intention of the framers. There is, moreover, today in many quarters a remarkable misconception of the intention and purpose of the framers of the Fourteenth Amendment. The debates upon all these questions are most interesting and convincing, and should always be consulted. It has lately been declared that, 'Doubtless the intention of the Congress which framed and of the States which adopted as distinguished the vote of Louisthis Amendment of the Constitu-iana in the Presidential election of By deci people which find no authorization § 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 State1 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 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 domain of civil liberty won by the 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 and unlimited wrong. Those outrages are the deeds of individual citizens or of associated masses, acting without authority of law and in defiance of law. Yet when a violated public opinion justifies their course, and when indictment and conviction are impossible, the injured citizen loses his rights as conclusively as if the law had denied them, and indeed far more cruelly.'" Also citing: § 358. 1 People vs. Naglee, Sup. Ct. Cal. 1850, 1 Cal. 232, BENNETT, J. 2 Citing the Passenger and License Cases, 5 How. 613; 7 How. 283. (See citations from, and comments on, these cases in §§ 468, et seq., post.) 8 See p. 246, 1 Cal. Rep. "Prof. Burgess's Political Sc. & Const. Law, vol. I, 225, et seq.: From whatever point of view I regard the opinion of the Court in the Slaughter House Cases,— from the historical, political, or juris-1855, 5 Cal. 381, HEYDENFETL and tic, it appears to me entirely erro- BRYAN, JJ. 4 People vs. Gerke, Sup. Ct. Cal. 5 contains the following statement as to the necessity of vesting this power in the Central Government: "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 1869,6 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. People vs. Washington, Sup. Ct. Cal. 1869, 56 Cal. 658, RHODES, J; see p. 668. See also, however, Bodley vs. Ferguson, Sup. Ct. Cal. 1866, 30 Cal. 511, (see p. 517), SHAFTER, J. 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.1 United States by Henry Brannon, 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 Guar nation 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 Amendment provides: "§ 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State 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 or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law." It can readily be seen that decisions as to whether or not State laws are Constitutional as viewed in many respects to questions af- 1 Fisher vs. Harnden, U. S. Cir. Ct. N. Y. 1812, 1 Payne, C. C. 55, For exhaustive collections of LIVINGSTON, J. (Afterwards re Having thus shown that the supremacy of treaties over all State statutes conflicting therewith has not only been upheld by the Federal courts, but has been universally recognized by the State courts, in the next chapter we will review the decisions of the Courts in regard to the relations of congressional legislation and treaties; we will find that the Courts necessarily determine questions in that branch of the subject from an entirely different standpoint on account of the acknowledged equality of statutes and treaties of the United States under Article VI of the Constitution. versed in Harnden vs. Fisher, U. S. | MARSHALL, Ch. J., but treaty and Sup. Ct. 1816, 1 Wheaton, 300, State statute point not affected.) 62 |