«9i-'.] OF THE UNITED STATES. 313 



" This understanding of the article, must enter into our construction of 

 the acts of Congress on the subject.""* 



After the death of Marshall in 1835, there followed a series of cases 

 coiiGerning these Spanish grants, in which was discussed the case of 

 Foster & Elam vs. Neilson. The important ones are Strother z's. 

 Lucas/^- Garcia z's. Lee/^^ and Pollard I's. Kibbe."* Differences of 

 opinion developed among the judges but each of them in explicit 

 language adopted and approved the doctrine of Foster & Elam Z's. 

 Neilson that a treaty when made self -executing by its terms has the 

 force of a legislative act. Thus in Garcia z's. Lee, Mr. Chief Justice 

 Taney in delivering the opinion of the Court, unanimous upon this 

 point, "^ said : 



" If, therefore, this was a new question and had" not already been decided 

 in this Court ; we should be prepared now to adopt all of the principles 

 affirmed in Foster & Elam z's. Neilson, with the exception of the one since 

 over-ruled in the case of the United States z's. Percheman, as hereinbefore 

 stated.""' 



In arguing Foster & Elam z's. Neilson, it had been said : 



" The plaintiffs invoke the aid of treaties. They place their claim upon 

 the language of treaties which the Constitution has made the law of the land, 

 and which cannot be annulled by the executive, or by the legislature.""' 



Apparently, therefore, doubt existed generally as to whether Con- 

 gress by the passage of an act could in effect repeal the provisions 

 of a treaty as operative local law.^^^ The question was brought 

 squarely before Mr. Justice Curtis sitting at circuit in 1855 i" 



"' Ibid., p. 89. 



"' 12 Peters, 410 (1838). 



"^Ibid., 511 (1838). 



"*I4 Peters, 353 (1840). 



"^The single dissent of Mr. Justice Baldwin, as is apparent from his 

 long opinion in Pollard x's. Kibbe, was based on the fact that he thought the 

 interpretation put upon the treaty in United States z's. Percheman should be 

 followed out further than the remaining members of the Court had de- 

 termined in Garcia z's. Lee. 



"° 12 Peters, p. 522. 



"' 2 Peters, p. 277. 



"* Writing in The Federalist, Jay had said: "The proposed Constitution 

 has not in the least extended the obligation of treaties. They are just as 

 binding and just as far beyond the lawful reach of legislative acts now as 

 they will be at any future period or under any form of government." 



