the right reciprocally to confer upon foreign citizens those privileges consistent with the laws and usages of nations; and, lastly, it established a tribunal-the federal judiciary-which was to preserve the constitutional guaranties of liberty, maintain the supremacy of the Union, and enforce its laws and treaties. We come now to the last and conclusive interpretation of the treaty-making power by the Supreme Court of the United States. We shall see how citizens of foreign countries, whose rights, guaranteed by treaties with the central government, had been violated by the states, naturally sought redress in the tribunal the Constitution created for this purpose, and how that court, fully realizing its grave responsibility, established beyond peradventure the supremacy of the treaties over the laws of the states and enforced the rights of foreign citizens, in the face of popular prejudice. These decisions were rendered at a time when the reasons for the adoption of the constitutional provisions were fresh in the minds of lawyers and jurists. Many of the men who participated in these trials and in the decisions as judges had been members of the Constitutional Convention and of the Congress of the confederation. They knew the reasons which had actuated the convention in adopting these provisions and the construction which ought to be placed upon them; and by an unbroken line of decisions, evincing the most profound knowledge of the principles underlying representative government, the court sustained the supremacy of the treaty-making power in relation to the subjects under discussion. Alexander Hamilton was the first to assert the rights of British subjects to lands in the state of New York, claiming that they were protected by the treaty, notwithstanding the confiscatory legislation of that state. He argued the case of Elizabeth Rutgers vs. Joshua Waddington, in the Mayor's Court of the City of New York, in 1784. The decision in that case, which sustained the treaty as against the law of the State of New York, brought forth a storm of protest and created the most bitter feeling. It was denounced in mass meetings of the people, and and an extra session of the Legislature condemned the action of the court. Hamilton was publicly abused, and his motives ques tioned. But with commendable courage and with masterly ability he defended the treaty-making power and denounced the violations of the treaties by the several states. He published a series of letters under the name of Phocion, in which he clearly set forth the injustice to foreign citizens, their rights under the treaties, and the danger to the government from these flagrant violations by the states. These letters created a powerful impression upon the public mind, and contributed in no small degree to the action in the constitutional convention to guard against a possibility of such abuses in the future. The first reported case on the subject in the Supreme Court of the United States is the case of Ware vs. Hylton.' It was in substance provided by a law of the Commonwealth of Virginia that a citizen of Virginia owing money to a subject of Great Britain might pay the same to the State of Virginia, and that the receipt of the governor and council should be a discharge from such debt. The law required the governor and the council to lay before the General Assembly an accounting of these certificates of payment, and provided that they should see to the safe-keeping of the money subject to the future directions of the Legislature. A British subject sued a citizen of Virginia upon a debt. The defendant pleaded the law of Virginia and the payment to the state. The plaintiff replied setting up the 4th Article of the treaty between Great Britain and the United States. The court held that the treaty was the supreme law of the land, and repealed all provisions of the state laws and constitution to the contrary. There were opinions by Justices Chace, Paterson, Wilson, and Cushing. Justice Chace said": "There can be no limitation on the power of the people of the United States. By their authority the state constitutions were made, and by their authority the Constitution of the United States was established; and they had the power to change or abolish the state constitutions, or to make them yield to the general government, and to treaties made by their authority. A treaty cannot be the supreme law of the land, that is, of all the '3 Dallas 199. 8 3 Dallas 236-237 United States if any act of a 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 give 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, contrary to a treaty, is not void, but voidable only by a repeal, or nullification by a state legislature, this certain consequence follows, that the will of a small part of the United States may control or defeat the will of the whole. The people of America have been pleased to declare that all treaties made before the establishment of the national constitution, or laws of any of the states, contrary to a treaty, shall be disregarded.” It will be remembered that the 4th Article of the treaty provided that creditors on either side "shall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted." Speaking specially of this provision, Justice Chace said: 66 The only impediment to the recovery of the debt in question, is the law of Virginia, and the payment under it; and the treaty relates to every kind of legal impediment. "But it is asked, did the fourth article intend to annul a law of the states? and destroy rights acquired under it? "I answer, that the fourth article did intend to destroy all lawful impediments, past and future; and that the law of Virginia, and the payment under it, is a lawful impediment; and would bar a recovery, if not destroyed by this article of the treaty. Our Federal Constitution establishes the power of a treaty over the constitution and laws of any of the states; and I have shown that the words of the fourth article were intended, and are sufficient to nullify the law of Virginia and the payment under it." Justice Paterson said: "The fourth article embraces all creditors, extends to all preexisting debts, removes all lawful impediments, repeals the legislative act of Virginia, which has been pleaded in bar, and with regard to the creditor annuls everything done under it." Justice Wilson said: "Even if Virginia had the power to confiscate, the treaty annuls the confiscation. The fourth article is well expressed to meet the very case; it is not confined to debts existing at the time of making the treaty; but is extended to debts heretofore contracted. It is impossible by any glossary or argument, to make the words more perspicuous, more conclusive, than by a bare recital. Independent, therefore, of the Constitution of the United States, which authoritatively inculcates the obligation of contracts the treaty is sufficient to remove every impediment founded on the law of Virginia." Justice Cushing said: "A state may make what rules it pleases, and those rules must necessarily have place within itself. But here is a treaty, the supreme law, which overrules all state laws upon the subject, to all intents and purposes; and that makes the difference. ". . . . To effect the object intended, there is no want of proper and strong language; there is no want of power, the treaty being sanctioned as the supreme law, by the Constitution of the United States, which nobody pretends to deny to be paramount and controlling to all state laws, and even state constitutions, wheresoever they interfere or disagree. The treaty, then, as to the point in question, is of equal force with the constitution itself; and certainly, with any law whatsoever." Both Justices Paterson and Wilson had been members of the Constitutional Convention. Justice Wilson had been a member of the Congress and a signer of the Declaration of Independence, and was one of the most distinguished lawyers of the United States. The Chief Justice was one of the authors of the "Federalist." They were all men deeply learned as lawyers and statesmen. This opinion was delivered in the February term 1796. It was the leading case which for the first time laid down the principles of the supremacy of the federal treaties over state laws. It was argued by distinguished counsel, Marshall, subsequently Chief Justice, appearing for the defendants in opposition to the treaty power. It received the most careful and painstaking consideration by the court. It was followed by many decisions all along the same line, some of them particularly applying to the ownership or the devolution of real estate within the states. In the case of Chirac vs. Chirac, decided at the February term in 1817, Chief Justice Marshall wrote the opinion. The question involved was whether the heirs of Chirac, being aliens, might inherit property in Maryland according to the terms of the treaty with France, although in violation of the anti-alien law of that state. Chief Justice Marshall said ": "It is unnecessary to inquire into the consequences of this state of things, because we are all of opinion that the treaty between the United States and France, ratified in 1778, enabled the subjects of France to hold lands in the United States. That treaty declared that the subjects and inhabitants of the United States, or any one of them, shall not be reputed Aubains (that is aliens) in France.' They may, by testament, donation, or otherwise, dispose of their goods, movable and immovable, in favor of such persons as to them shall seem good; and their heirs, subjects of the said United States, whether residing in France or elsewhere, may succeed them ab intestat, without being obliged to obtain letters of naturalization. The subjects of the most Christian king shall enjoy, on their part, in all the dominions of the said states, an entire and perfect reciprocity relative to the stipulations contained in the present article." "Upon every principle of fair construction, this article gave to the subjects of France a right to purchase and hold lands in the United States. "It is unnecessary to inquire into the effect of this treaty under the confederation, because, before John Baptiste Chirac emigrated to the United States, the confederation had yielded to our present constitution, and this treaty had become the supreme law of the land." In Orr vs. Hodgson" it was held that the treaty with Great Britain of 1783 protected the estates of citizens of that country from forfeiture by way of escheat for the defect of alienage. In the case of Fairfax's Devisee vs. Hunter's Lessee," Justice Story writing the opinion, held that the heir of Lord Fairfax, although being an alien, was protected by the treaty of 1794 from any forfeiture for alienage, under the laws of Virginia. ⚫2 Wheat 259. |