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



This case is examined by Professor Mikell with the conclusion 

 that it " is no authority for the broad proposition that the treaty- 

 making power is not limited by the reserved rights of the States "-*'- 

 — a conclusion based, first, on the fact that the treaty under discus- 

 sion was one entered into under the Confederation and therefore 

 that " it might well be that greater force should be allowed to " 

 such a treaty ; and secondly, on the constitutional provision that 

 States shall not impair contracts. This first conclusion is contrary 

 to (a) the judgment itself of the Court and (b) the opinions of the 

 justices; (c) the historical facts respecting treaties made under the 

 Confederation; (d) the interpretation given to this case in the sub- 

 sequent decisions of the Supreme Court. The second conclusion is 

 curious ; for when Virginia passed the Confiscation Act, the Consti- 

 tution was of course not in force. Professor Mikell must mean that 

 as a confiscation by a State statute cannot now occur, the treaty only 

 deprived Virginia of the power of doing something later forbidden 

 by the Constitution ; and hence not a State right today. But this is 

 only to say that the question then before the Supreme Court in 

 Ware vs. Hylton could not recur in just that form. But in what 

 way could the fonn matter? The principles and considerations in- 

 volved would be precisely identical, and the authority of this case 

 equally cogent. -'^'^ 



But there is yet a further consideration demonstrating that there 

 is involved in the very tissue of the decision in Ware vs. Hylton a 

 recognition of the force and supremacy of the treaty provisions of 

 the Constitution. Whence else came to the court the pozver to record 

 its judginentf Assume the treaty of peace to be valid under the 

 Confederation, as manifestly it was, assume it to be binding on A'ir- 

 ginia as a State; in what sense was it binding? Surely by force of 

 international law and not by virtue of any power in Congress to 

 enforce its provisions. Could Congress, by a judiciary it did not 

 possess, by a resolution it had no power to enforce, give to the indi- 

 vidual British creditor redress? Could such creditor successfully 

 appeal to a State court? By a fundamental canon of American law 



^'■American Law Register, Vol. 57, P- 540. 

 ^"^ See note 12. 



