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



respecting State police power, Federal control over commerce, and 

 treaty rights, became so clouded by hazy ciualifications and hesi- 

 tations, that one is justified in the assertion that to political con- 

 siderations alone can one look to explanations which shall clarify. 

 The Civil War came and passed. New men succeeded to the bench 

 of the Supreme Court. The arms of the North had brought 

 supremacy to the Federal will. It remained unquestioned and un- 

 questionable for years. When, in 1879, instances of its enforc:^- 

 ment came before the Supreme Court, the supremacy of that will 

 was, in the cases we have analyzed,^*^ established in language which 

 rings with vehement conviction. And so was the return made to the 

 thought and logic of IMarshall, who perpetuated in the records of 

 the Supreme Court what the constitutional conventions had declared 

 and established. That decision of 1879 persists as the law today, 

 reiterated in 1895, when in days of financial panic, organized labor, 

 and a sympathetic State executive, doubted the Federal power. "*= 

 Failure to impress the Federal will, intended to be expressed in a 

 treaty, may occur; but the cause must be sought in inadequate acts 

 of Congress and inexplicit treaty provisions. Fortified by the prin- 

 ciples established by Marshall and recognized by the Supreme Court 

 today, one may conclude : A violation of rights secured by treaty 

 provisions may be made punishable under the laws of the United 

 States, suppressed by its armies, or enjoined in its courts. 



NOTES. 



Note I. — In a letter to Senator Breckinridge of Kentucky, dated August 

 12, 1803, Jefferson wrote : " The Constitution has made no provision for our 

 holding foreign territory, still less for incorporating foreign nations into our 

 Union. The executive in seizing the fugitive occurrence which so much 

 advances the good of their country, have done an act beyond the Constitu- 

 tion. The legislature, in casting behind them metaphysical subtleties, and 

 risking themselves like faithful servants, must ratify and pay for it, and 

 throw themselves On their country for doing for them unauthorized what 

 we know they would have done for themselves had they been in a situation to 

 do it." Jefferson's Works, IV., p. 500. 



^^ Supra, pp. 212-217. 

 ^*- Supra, pp. 224-229. 



