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



tlic judges in every State shall be bound thereby, anything in the Constitution, 

 or laws, of any State to the contrary notwithstanding.' There can be no 

 limitation on the power of the people of the United States. By their author- 

 ity the State constitutions were made, and by their authority the Constitution 

 of the United States was established ; and they had the power to change or 

 abolish the State Constitutions, or to make them yield to the general 

 government, and to treaties made by their authority. A treaty cannot be 

 the supreme law of the land, that is of all the United States, if any act of a 

 State legislature can stand in its way. If the Constitution of a State (which 

 is the fundamental law of the State, and paramount to its legislature) must 

 give way to a treaty, and fall before it; can it be questioned, whether the less 

 power, and act of the state legislature, must not be prostrate? It is the 

 declared will of the people of the United States that every treaty made, by 

 the authority of the United States, shall be superior to the Constitution and 

 laws of any individual State; and their will alone is to decide. — If a law of a 

 State, contrary to a treaty, is not void, but voidable only by a repeal, or nulli- 

 fication by a State legislature, this certain consequence follows, that the will 

 of a small part of the United States may control or defeat the will of the 

 whole. The people of America have been pleased to declare, that all treaties 

 made before the establishment of the National Constitution, or laws of any 

 of the States, contrary to a treaty, shall be disregarded. 



" Four things are apparent on a view of the 6th Article of the National 

 Constitution, ist. That it is retrospective, and is to be considered in the 

 same light as if the Constitution had been established before the making of 

 the treaty of 1783. 2nd. That the Constitution, or laws, of any of the States 

 so far as either of them shall be found contrary to that treaty are by force of 

 the said article, prostrated before the treaty. 3rd. That consequently the 

 treaty of 1783 has superior power to the Legislature of any State, because no 

 Legislature of any State has any kind of power over Constitution, which was 

 its creator. 4thly. That it is the declared duty of the State judges to deter- 

 mine any Constitution, or laws of any State, contrary to that treaty (or any 

 other) made under the authority of the United States, null and void. 

 National or Federal judges are bound by duty and oath to the same con- 

 duct."^"' 



Mr. Justice Wilson was of the opinion that the treaty, being made 

 by Virginia as a State, annulled the confiscation.^^^ Mr. Justice Ire- 

 dell expressly disagreed with the other members of the Court as to 

 the efficacy of the treaty provision independent of the Constitution, 

 and held that the treaty could only become effective " by a repeal 

 of the statutes of the different States."^''* With respect to the appli- 



'" 3 Dallas, pp. 235-7. 

 "' See note 10. 

 "° See note 1 1. 



