CHAPTER XI.

JUDICIAL DECISIONS IN REGARD TO THE RELATIVE EFFECT OF TREATY STIPULATIONS AND STATE LAWS.

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.

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.1 Other decisions were

* See § 227, p. 366, Vol. I. * See § 253, p. 389, Vol. I. 5 See § 249, p. 387, Vol. I. § 330.

1 State of Georgia vs. Brailsford, U. S. Sup. Ct. 1794, 3 Dallas, 1, JAY, Ch. J., involved similar questions to those involved in Ware vs. 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

important principle that the Treaty of Peace, like the Constitution, was in respect to matters embraced by its terms, the supreme law, and could not be restricted in its operation by State action or State laws. The same result was reached, and the same conclusion justified after 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

rendered involving similar questions but this was the leading case and established the legal principles involved.2

tions as to those decided in Ware vs. Hylton and was decided in the same manner and without opinion.

Society for the Propagation of the Gospel vs. Hartland, U. S. Cir. Ct. Vermont, 1814, 2 Paine, 536; Federal Cases 13, 155; THOMPSON, J.

Same vs. Wheeler, U. S. Cir. Ct. New Hampshire, 1814, 2 Matthews, 105; Federal Cases 13, 156; STORY, J.

State of Vermont vs. Society for the Propagation of the Gospel, U. S. Cir. Ct. Vermont, 1826, Federal Cases 16, 919-20; THOMPSON, J.

Society &c. vs. Town of New Haven, United States Sup. Ct. 1823; 8 Wheat. 464; WASHINGTON, J.

These cases were all the result of State confiscation acts of property

vain to convince the Court that Congress had no power to make a treaty that could operate to annul a legislative act of any of the States, and thus destroy rights acquired under such an act. Chase, Patterson, Wilson and Cushing, impressed by the uncommon magnitude of the subject, the bitter and exciting controversies it had provoked, and the far-reaching consequences by which their decision would be attended, although differing upon some matters of detail and in the mode of their reasoning, reached the conclusion that the Treaty of 1783 was the supreme law, equal in its effect to the Constitution itself, in overruling all State laws upon the subject, and the words that British creditors should meet with no law-owned by the British Society; the ful inpediment, were as strong as the wit of man could devise to avoid all effects of sequestration, confiscation, or any other obstacle thrown in the way by any law, particularly pointed against the recovery of such debts. The decision expanded from a statement of the contractual liability of an individual to an assertion that the treaty obligations of the nation were paramount to the laws of the individual States. Happy conclusion! A contrary result would have blackened our character, at the very outset of our career as a nation, with the guilt of treachery to the terms of the treaty by which our Independence had been recognized, and would have prostrated the national sovereignty at the feet of Virginia."

2 Clarke vs. Harwood, U. S. Sup. Ct. 1797, 3 Dallas, 342, PER CURIAM. This case involved similar ques

Supreme Court held that the society had a right to hold the property, and that its rights became vested under the treaty of 1783, the provisions of which were superior to State laws; also that although these suits were not brought until after the War of 1812, the rights had become so vested under prior treaties that the Society had a right to recover and hold its property. It was also held that a State cannot pass laws confiscating franchises. There is quite a lengthy discussion in the opinion as to the effect of war upon treaties. In Society for the Propagation &c. vs. Pawlett, U. S. Sup. Ct. 1830, 4 Peters, 480, STORY, J., it was held, however, that the Society could not recover mesne profits during the period of confiscation.

Higginson vs. Mein, U. S. Sup. Ct. 1808, 4 Cranch, 415, MARSHALL, J. In a foreclosure case held that the