316 BURR— THE TREATY-MAKING POWER [April 20. 



when such rights are of a nature to be enforced in a Court of justice, that 

 Court resorts to the treaty for a rule of decision for the case before it as it 

 would to a statute.'""^ 



To say, in a case where the Act of Congress under discussion was 

 sustained as a regulation of commerce, that " a treaty is a law of the 

 land as an act of Congress is," is flatly inconsistent with the doctrine 

 that a treaty must to receive recognition '" be sanctioned by an act 

 of Congress." And the opinion quoted was that of Mr. Justice 

 Miller acquiesced in by the whole Court. 



The case of United States vs. 43 Gallons of Whiskey^-'^ has been 

 passed over for the moment. Therein the question was as to the 

 efTect of a treaty with the Chippewa Indians proclaimed May 5, 

 1864. By Article VII. thereof, it was provided that the laws of the 

 United States respecting the sale of liquors in the Indian country 

 should be in full force throughout the country thereby ceded. This 

 ceded territory had become part of the State of Minnesota. The 

 Court sustained the efificacy of the provisions in the treaty and said : 



"The Constitution declares a treaty to be the supreme law of the land; 

 and Chief-Justice Marshall, in Foster & Elam vs. Neilson, has said, ' that a 

 treaty is to be regarded, in Courts of justice, as equivalent to an Act of the 

 Legislature, whenever it operates of itself, without the aid of any legislative 

 provision.' No legislation is required to put the Seventh Article in force ; 

 and it must become a rule of action, if the contracting parties had power 

 to incorporate it in the treaty of 1863. About this there would seem to be 

 no doubt."''' 



This is another case where a united court concurred in ]\Ir. Chief 

 Justice Marshall's view respecting the meaning of Article VI. of 

 the Constitution and the consequent efificacy of treaty provisions 

 even when not " sanctioned by an Act of Congress." 



It will be best to consider together the Chinese Exclusion Cases, 

 and therefore the case of United States z's. Rauscher^'-^ next de- 

 serves attention. It arose under the provisions of an extradition 

 treaty and decides that under its proper construction a person de- 

 manded and received from Great Britain in accordance with its 

 provision, cannot be tried for a crime other than the one for which 

 he was extradited. In the course of the opinion the language of 



'"I-bid., pp. 598-9. "'Ibid., p. 106. 



'=°o3 U. S., 188 (1876). '-'119 U. S., 407 (1886). 



