312 BURR— THE TREATY-MAKING POWER [April 20, 



become " a treaty in the sense intended by the Constitution when it 

 says a treaty is the supreme law of the land." No better opportu- 

 nity to enunciate this doctrine could have been presented. By Act 

 of March 26th, 1804, Congress had provided that all such grants for 

 lands as constituted the plaintiff's title, *' are hereby declared to be. 

 and to have been from the beginning, null, void and of no effect in 

 law or equity." And yet the Court said : Had the treaty provided 

 " that those grants are hereby confirmed," " it would have acted 

 directly on the subject, and would have repealed those Acts of 

 Congress which were repugnant to it." The act was passed in 1804 

 presumably under Article IV., Section 3, of the Constitution : " The 

 Congress shall have power to dispose of and make all needful rules 

 and regulations respecting the territory or other property belonging 

 to the United States." The treaty was made fifteen years there- 

 after, and yet the Court held that it could have operated, by a slight 

 change in phraseology sufficient to show an intention that its pro- 

 visions should operate forthwith, as a repeal of the acts of Congress 

 upon a subject of law so local and individual in its nature as the 

 subject of land titles. To say that this case went off on the interpre- 

 tation of the treaty, is to deal with the shadow of things. 



It is to do more ; it is to ignore the authority and significance 

 of the numerous other cases decided shortly thereafter with refer- 

 ence to this same Spanish treaty. In United States z's. Pefche- 

 man,^" a case similar to that of Foster & Elam I's. Neilson, it was 

 brought to the attention of the Court, that in the Spanish original 

 of the treaty, the language used was equivalent to a confirmation 

 by force of the treaty itself. Said Mr. Chief Justice ^larshall : 



" When we observe that in the counterpart of the same treaty, executed 

 at the same time by the same parties, they are used in this sense, we think 

 the construction proper, if not unavoidable. 



" In the case of Foster vs. Elam, 2 Peters, 253, this Court considered 

 considered these words as importing contract. The Spanish part of the 

 treaty was not then brought to our view, and we then supposed that there 

 was no variance between them. We did not suppose that there was even a 

 formal difference of expression in the same instrument, drawn up in the 

 language of each party. Had this circumstance been known, we believe it 

 would have produced the construction which we now give to the article. 



""7 Peters, 51 (1833). 



