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



Note 12. — Additional comment upon this case made by Professor Mikell 

 is as follows : " In Ware vs. Hylton, it was decided that a law of Virginia, 

 passed in 1777, which provided that any citizen of Virginia, owing money to 

 a subject of Great Britain, might pay the same into the loan office of the 

 State and l)e discharged of the debt, was abrogated by the treaty of 1783, 

 between the United States and England. This treaty provided that the 

 creditors of either of the contracting parties should meet with no lawful 

 impediment to the recovery of all debts theretofore contracted. 



" It is submitted that this case is no authority for the broad proposition 

 that the treaty-making power is not limited by the reserved rights of the 

 States. In the first place the treaty in question was entered into by the 

 Continental Congress before the adoption of the present Constitution. Now 

 the method of entering into a treaty under the confederation differed from 

 that under the Constitution. Under the confederation each state was entitled 

 to only one vote in Congress and Congress could make no treaty without 

 the consent of nine States. As there were thirteen states in the confedera- 

 tion, this meant that the assent of three- fourths of all the States was neces- 

 sary to the making of a treaty. Under the present Constitution a treaty is 

 not so directly the act of a State, and that assent of three-fourths of the 

 States is not necessary. Each State has two Senators and they may not vote 

 in unison; but, more important is the difference that the Constitution does 

 not require the assent of three-fourths or even of two-thirds of the States to 

 the making of a treaty, but only the assent of two-thirds of the Senators 

 present when the treaty is voted on. It might well be then that greater 

 force should be allowed to a treaty negotiated by the States in the Con- 

 tinental Congress where they acted much as independent States in a league, 

 than under the present Constitution where the vote on treaties is not by 

 States at all. The position of the States in the Confederation seems to be 

 referred to by Wilson, J. where he says (p. 281) : 'The State made th^ law; 

 the State was a party to the making of the treaty ; a law does nothing more 

 than express the will of a nation; a treaty does the same.' Again the 

 decision in Ware vs. Hylton that a treaty overrides a state law confiscating 

 debts due foreigners is not a decision that the treaty-making power under the 

 Constitution can be used to deprive a State of any of its reserved rights ; 

 for while this right of confiscation did exist in Virginia before the present 

 Constitution it was not only not reserved, but is expressly surrendered by 

 the Constitution — in that section providing that no State shall pass any law- 

 impairing the obligations of a contract. 



" Indeed, the very reason the States were so careful to insist on an ex- 

 pression of their reserved rights, in framing the present Constitution, was 

 because, by the new Constitution, they had in general created a more cen- 

 tralized government than existed under the Confederation. 



" What the case really decides is that any treaty made under the 

 Articles of Confederation and which was valid under the Articles of Con- 

 federation was valid by adoption after the Constitution was adopted." 

 American Lazv Register. Vol. 57, pp. 540-2. 



