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



judgment of the High Court of Appeals, and affirmed the judgment of the 

 general Court." 



'This case has been generally ignored; it is significant. It came be- 

 iore the Supreme Court of the United States on writ of error to the 

 Supreme Court of Appeals of Maryland, where judgment adverse 

 to the claimant was reversed. In so setting aside the action of the 

 highest judicial agency of the State, and its declaration that the 

 treaty was not binding on its citizen, the United States Supreme 

 Court by its action unecjuivocally demonstrated that it acted by vir- 

 tue of the Constitution, and gave effectiveness to the treaty-pro- 

 visions thereof. If any one could be found to claim that in Ware 

 vs. Hylton, the Federal court only acted as a \'irignia court might 

 have done, and so its judgment did not necessarily derive its virtue 

 from the Constitution, this case of Clerke vs. Harwood shows that 

 no such limitation to the significance of Ware vs. Hylton is possible. 

 It cannot be gainsaid that the judgments in these causes, once they 

 be fully analyzed and understood, determine completely and finally 

 the supremacy of treaty provisions over State law. 



The decision in Ware z's. Hylton was prefigured in the consti- 

 tutional debates ; likewise was it with the decision in Fairfax vs. 

 Hunter.-"'' In the Virginia debates Mr. Mason spoke vehemently 

 upon the subject. 



" I am personally endangered," he said, " as an inhabitant of the Northern 

 Neck. The people of that part will be obliged, by the operation of this power, 

 to pay the quit rents of their lands. Whatever other gentlemen may think, I 

 consider this as a most serious alarm. . . . Lord Fairfax's title was clear and 

 undisputed. After the revolution we taxed his lands as private property. 

 After his death an act of Assembly was made, in 1782, to sequester the quit 

 rents due at his death, in the hands of his debtors. Next year an act was 

 made restoring them to the executor of the proprietor. Subsequent to this 

 the treaty of peace was made, by which it was agreed, that there should be 

 no further confiscations. But after this an act of Assembly passed, con- 

 fiscating this whole property. As Lord Fairfax's title was indisputably good, 

 and as treaties are to be the supreme law of the land, will not his representa- 

 tives be able to recover all in the Federal court? How will gentlemen like to 

 pay additional tax on lands in the Northern Neck? This the operation of 

 this system will compel them to do.""'" 



"-'"7 Cranch, 603 (1812). 



"" Elliott's Debates, Vol. IL, pp. 387-8. 



