191-'] OF THE UNITED STATES. 397 



old Court, and I cannot consent to remain where I can no longer hope to see 

 those doctrines recognized and en forced. '"'^^ 



Those words were written when, under the influence of Calhoun, 

 a great party was adopting his State rights views, and when south- 

 ern judges filled the bench. Can one doubt that those facts should 

 be borne in memory when the License Cases,^*-' decided in 1847, ^^^ 

 quoted as authoritative utterances respecting the true relations of 

 Federal action and State police power? Have they really any more 

 validity today than an old bill of sale for a negro slave could have? 

 This is perhaps too strong a comparison; it will serve to emphasize, 

 even if unduly, the necessity for a discriminative estimate of the 

 value of decisions. 



The main question asked in this essay by its title is the status 

 of treaty provisions brought into conflict with the attempted exercise 

 of State police powers. The answer is that, without qualification of 

 any kind whatsoever and without limitation by any possible defini- 

 tion of the treaty-making power, a treaty provision as the embodied 

 manifestation of the Federal will is supreme over any and all State 

 enactments made in the exercise of the police power. Such was the 

 idea of those who framed the Constitution and who believed that they 

 had written their purpose into that instrument ; such also was the 

 idea of those who favored and those who opposed its ratification by 

 the States. This unanimous contemporary interpretation was stated 

 and applied by the Supreme Court of the United States and pervades 

 and informs every word which John Marshall uttered during the years 

 in which the fundamental canons of constitutional interpretation 

 were evolved. On the death of that greatest English-speaking jurist 

 of all time, the advocates of State rights, soon to become the forces 

 of disunion, gained the ascendancy in the national councils. Mem- 

 bers of that party to which Marshall had his whole life long opposed 

 the authority of his office and the distinction of his character, be- 

 came justices of the Supreme Court and were the men of whom 

 Joseph Story wrote. The decisions of the Court so constituted 



^"Letter to Ezekiel Bacon, April 12, 1845, "Life and Letters of Joseph 

 Story," Vol. IL, p. 527. 

 '■'"' Supra, pp. 187-192. 



PROC. AMER. PHIL. SOC, LI. 2o6 W, PRINTED SEPT. 9, I912. 



