762 



TREATY-MAKING POWER OF THE UNITED STATES. 



tween that nation and the United States, stipu- 

 lating that such tobucco should be exempt 

 from taxation. Justice Swayne said: "A 

 treaty may supersede a prior act of Congress 

 (Foster vs. Neilson, 2 Peters's Reports, 314), 

 and an act of Congress may supersede a prior 

 treaty (Taylor vs. Morton, 2 Curtis's Reports, 

 454, Clinton Bridge case, 1 Walworth's Re- 

 ports, 155). In the cases referred to these 

 principles were applied to treaties with for- 

 eign nations. Treaties with Indian nations 

 within the jurisdiction of the United States, 

 whatever considerations of humanity and good 

 faith may be involved and require their faith- 

 ful observance, can not be more obligatory. 

 They have no higher sanctity, and no greater 

 inviolability or immunity from legislative in- 

 vasion can be claimed for them. The con- 

 sequences in all such cases give rise to ques- 

 tions which must be met by the political de- 

 partment of tbe Government. They are be- 

 yond the sphere of judicial cognizance." These 

 decisions were cited with approval, and the 

 principles laid down in them were reaffirmed 

 by the United States Supreme Court in the 

 case of Edye vs. Robertson, decided Dec. 8, 

 1884. In this case the constitutionality of the 

 Immigration Act of Congress was under con- 

 sideration. It was contended on one side that 

 the act was in violation of existing treaties 

 with friendly foreign powers. The Court re- 

 marked that " we are not satisfied that this 

 act of Congress violates any of these treaties, 

 or any just construction of them," but held 

 that, " so far as the provisions in that act may 

 be found to be in conflict with any treaty with 

 a foreign nation, they must prevail in all the 

 judicial courts of this country." Justice Mil- 

 ler, who delivered the opinion, then expounded 

 the law on tins point as follows : 



A treaty is primarily a compact between independ- 

 ent nations. It depends for the enforcement of its 

 provisions on the interest and the honor of the gov- 

 ernments which are parties to it. If these fail, its 

 infraction becomes the subject of international nego- 

 tiations and reclamations, so far as the injured party 

 chooses to seek redress, which may in the end be en- 

 forced by actual war. It is obvious that with all this 

 the judicial courts have nothing to do, and can give no 

 redress. But a treaty may also contain provisions 

 which confer certain rights upon the citizens or sub- 

 jects of one of the nations residing in the territorial 

 limits of the other, which partake of the nature of 

 municipal law, and which are capable of enforcement 

 as between private parties in the courts of the coun- 

 try. An illustration of this character is found in 

 treaties which regulate the mutual rights of citizens 

 and subjects of the contracting nations in regard to 

 rights of property by desccnt'qr inheritance, when 

 the individuals concerned are aliens. The Constitu- 

 tion of the United States places such provisions as 

 these in the same category as other laws of Congress 

 by its declaration that ''this Constitution and the 

 laws made in pursuance thereof, and all treaties made 

 or which shall be made under authority of the United 

 Slates, shall be the supreme law of the land." A 

 treaty, then, is a law of the land as an act of Con- 

 gress is, whenever i f .s provisions prescribe a rule by 

 which the rights of the private citizen or subject may 

 be determined. And when such rights are of a na- 

 ture to be enforced in a court of justice, that court 



resorts to the treaty for a rule of decision for the case 

 before it, as it would to a statute. 



But even in this aspect of the case there is nothing 

 in this law which makes it irrepealable or unchanged 

 able. TLe Constitution gives it no superiority over 

 an act of Congress in this respect, which may be re- 

 pealed or modified by an act of a later date. Nor is 

 there anything in its essential character, or in the 

 branches of the Government by which the treaty is 

 made, which gives it this superior sanctity. 



A treaty is made by the President and the Senate. 

 Statutes are made by tbe President, the Senate, and 

 the House of Kepresentatives. The addition of the 

 latter body to the other two in making a law certainly 

 does not render it less entitled to respect in the matter 

 of its repeal or modification than a treaty made by the 

 other two. If there be any difference in this regard, 

 it would seem to be in favor of an act in whicTi all 

 three of the bodies participate. And such is, in fact, 

 the case in a declaration of war, which must be made 

 by Congress, and which, when made, usually sus- 

 pends or destroys existing treaties between the nations 

 thus at war. 



In short, we are of opinion that, so far as a treaty 

 made by the United States with any foreign nation 

 can become the subject of judicial cognizance in the 

 courts of this country, it is subject to such acts as 

 Congress may pass for its enforcement, modification, 

 or repeal. 



At the session beginning in October, 1879, 

 the same court rendered an opinion in the case 

 of Hauenstein vs. Lynham (100 United States 

 Reports. 483) that a treaty giving subjects of a 

 foreign country the right to hold lands in the 

 United States supersedes any State laws in 

 conflict with it. "It must always be borne in 

 mind," said Justice Swayne in the opinion of 

 the Court, "that the Constitution, laws and 

 treaties of the United States are as much a part 

 of the law of every State as its own local law s 

 and constitution. This is a fundamental prin- 

 ciple in our system of complex national polity." 

 The same principle was laid down by the Su- 

 preme Court as early as 1798 only seven years 

 after the Federal Constitution took effect in 

 the case of Ware vs. Hylton, (3 Dallas's Reports 

 236). The opinion delivered by Judge Chace 

 contains this passage : 



A treaty can not be the supreme law of the land, 

 that is of all the United States, if any act of the State 

 Legislature can stand in its way. If the Constitution 

 of a State (which is the fundamental law of the 

 State, and paramount to its Legislature) must crive way 

 to a treaty and fall before it, can it be questioned 

 whether the less power, an act of the State Legislature, 

 must not be prostrate ? It is the declared will of the 

 people of the United States that every treaty made by 

 the authority of the United States shall be superior to 

 the Constitution and laws of any individual State, and 

 their will alone is to decide. If a law of a State con- 

 trary to a treaty is not void but voidable only, by a 

 repeal or nullification by a State Legislature, this cer- 

 tain consequence follows .that the will of a small part 

 of the United States may contiol or defeat the will of 

 the whole. 



From this review it will be seen that from 

 the earliest time to the present both the Su- 

 preme and the lower Federal courts have given 

 a uniform construction to the Constitution on 

 the questions that have been brought before 

 them touching the treaty-making power. By 

 these decisions, certain principles may be re- 

 garded as settled. The power of the Presi- 



