and two make four, that the treaties made are only. Is it not necessary that they should be Fatal experience has proven that treaties would if their observance depended on the will of the ces would be constant war. For, if any one state aty, how could the United States avoid hostility with not gentlemen see the infinite dangers that would a small part of the community could drag the whole 191 the conditions out of which were evolved the treaty Constitution; such was the universal contemporary purpose, significance, and import. een noted that the clause assuming to insure supremacy · “ovisions, past and future, was adopted to cover existing ntroversies. Did none of them-the question asks itself the courts, and result in an authoritative declaration interthese discussed clauses? What did the courts decree when 1 creditors sought to recover debts, and British claimants of sought to recover possession, in reliance on existing treaty prons? The answer is that the case of Ware vs. Hylton192 recoged in 1796 the rights of British creditors, and the case of Fairfax Hunter,193 decided in 1812, determined that the title of an alien as saved by the treaty of peace. It has been noted that in debating the constitutional provision on subject, James Wilson had said: Vol. II., pp. 372-3. Vol. II., p. 375. 192 193 3 Dallas, 199 (1796). '7 Cranch, 603 (1812). Richard Henry Lee, another delegate from Virginia, gave similar reasons: "In the new Constitution, the President and Senate have all the execu tive, and two thirds of the legislative power. In some weighty instances (as making all kinds of treaties, which are to be the laws of the land), they have the whole legislative and executive powers.' 99186 Patrick Henry was a violent opponent of the adoption of the Constitution in the Virginia debates. The reporter says that he urged that "the power of making treaties, by this Constitution, ill-guarded as it is, extended farther than it did in any country in the world.-Treaties were to have more force here than in any part of christendom. For he defied any gentleman to shew anything so extensive in any strong energetic government in Europe. Treaties rest, says he, on the laws and usages of nations. To say that they are municipal, is, to me, a doctrine totally novel. To make them paramount to the Constitution, and laws of the states, is unprecedented. I would give them the same force and obligation they have in Great Britain, or any other country in Europe. Gentlemen are going on in a fatal career; but I hope they will stop before they concede this power unguarded and unaltered."187 In the North Carolina convention, Mr. Bloodworth thus opposed the supremacy assigned to the acts of Congress and to the treatymaking power: "This clause will be the destruction of every law which will come in competition with the laws of the United States. Those laws and regulations which have been, or shall be made in this state, must be destroyed by it if they come in competition with the powers of Congress." To him Governor Johnston thus replied: 188 "The Constitution must be the supreme law of the land, otherwise it will be in the power of any one state to counteract the other states, and withdraw itself from the Union. The laws made in pursuance thereof by Congress, ought to be the supreme law of the land, otherwise any one state might repeal the laws of the Union at large. Without this clause, the whole Constitution would be a piece of blank paper. Every treaty should be the supreme law of the land; without this, any one state might involve the whole Union in war. 186 187 99189 Ibid., Vol. I., p. 503, Ed. of 1854. 188 Ibid., Vol. III., p. 160. In the Virginia convention George Nicholas quoted from Blackstone a passage to show the status of treaties in Great Britain, and adds: 66 The president and senate have the same power of making treaties; and when made they are to have the same force and validity. They are to be the supreme law of the land here-this book shews us they are so in England. Have we not seen in America that treaties were violated, though they are in all countries considered as the supreme law of the land? Was it not therefore necessary to declare in explicit terms, that they should be so here?"190 Later in these Virginia debates Mr. Corbin, assuming the unanimous interpretation, argued for the wisdom of the clause: "It is as clear, as that two and two make four, that the treaties made are to be binding on the states only. Is it not necessary that they should be binding on the states? Fatal experience has proven that treaties would never be complied with, if their observance depended on the will of the states; and the consequences would be constant war. For, if any one state could counteract any treaty, how could the United States avoid hostility with foreign nations? Do not gentlemen see the infinite dangers that would result from it, if a small part of the community could drag the whole confederacy into war?"191 Such were the conditions out of which were evolved the treaty clauses of the Constitution; such was the universal contemporary analysis of their purpose, significance, and import. It has been noted that the clause assuming to insure supremacy to treaty provisions, past and future, was adopted to cover existing practical controversies. Did none of them-the question asks itself -reach the courts, and result in an authoritative declaration interpreting these discussed clauses? What did the courts decree when British creditors sought to recover debts, and British claimants of land sought to recover possession, in reliance on existing treaty provisions? The answer is that the case of Ware vs. Hylton192 recognized in 1796 the rights of British creditors, and the case of Fairfax vs. Hunter,193 decided in 1812, determined that the title of an alien was saved by the treaty of peace. It has been noted that in debating the constitutional provision on the subject, James Wilson had said: "I am sorry to say it, that in order to prevent the payment of British debts, and from other causes, our treaties have been violated, and violated too by the express laws of several States in the Union. . . . This clause, sir, will show the world that we make the faith of treaties a constitutional part of the character of the United States; that we secure its performance no longer nominally, for the judges of the United States will be enabled to carry into effect, let the legislatures of the different states do what they may." "'194 In the Virginia debates, Governor Randolph had likewise expressly adverted to this concrete cause to be subserved directly by the adoption of the Constitution. "I come now to what will be agitated by the judiciary. They are to enforce the performance of private contracts. The British debts, which are withheld contrary to treaty, ought to be paid." 195 The Constitution was adopted, a British creditor brought suit, and on appeal the case was argued in the Supreme Court by John Marshall on behalf of the debtor. In a volume of reports comprising 519 pages and covering a period of over five years the report of this case is allotted 87 pages; the opinions of the court cover over 64 pages. This is conclusive evidence of the contemporary estimate of its importance. The suit arose on a bond given by Virginian citizens, and was brought in the Federal court for the District of Virginia. The facts material in the present discussion, in addition to the citizenship of the parties and the notorious fact of war, were these. In 1774, the bond was dated. In 1777, an Act of Virginia was passed entitled "An Act for Sequestering British Property," and providing that full discharge of the debt should be created by the payment of the sum due to the commonwealth. In 1780, payment in accordance with the act was made by the defendant. In 1783, the treaty of peace was made. In 1788, the Constitution was declared operative by Congress. Marshall thus divided his argument. I. That the Virginia Act was effective as a bar (ignoring for the moment the treaty) because (a) the State had the power to create a bar; and (b) the State had by the Act exercised its power; II. That the treaty did not remove the bar. Marshall argued (a) that the Act had operated in 1780 to extinguish the debt, that therefore in 1783 there was no debt and no creditor upon whom 194 Elliott's Debates, Vol. III., pp. 280-1. the treaty might operate when it provided "that creditors on either side shall meet with no lawful impediment to the recovery of the full value, sterling money, of all bona fide debts heretofore contracted"; (b) that the treaty should not be interpreted to repeal an act known to the commissioners who framed the treaty, without express language of repeal; (c) that the treaty, if it operated to deprive the debtor of a right which had vested in 1780 three years before the date of the treaty, was beyond the power of Congress. The judgment of the Court was in favor of the creditor. Four of the five judges delivered their opinions. All concurred in upholding the power of Virginia to pass the Act of 1777 and in its efficacy apart from treaty stipulation. Mr. Justice Iredell alone dissented on the ground that while the treaty operated to repeal the Virginia statute, it could not properly be interpreted as operating to annul acts done under it while in force and prior to its repeal. It will be observed that the annulment of the Virginia statute might logically be maintained in either or both of two ways: First, because of the operation to that extent of the treaty by virtue of the Articles of Confederation and of the assent thereto by Virginia as a State; second, by the supreme efficacy given to the treaty by the Constitution. A careful study of the opinions of Mr. Justice Chase and of Mr. Justice Paterson196 shows that they placed their decision upon both grounds; Mr. Justice Wilson placed his concurrence on the first, and was silent as to the second; Mr. Justice Iredell denied the validity of the first ground, and acquiesced emphatically in the validity of the second (dissenting in the interpretation he gave to the treaty). Said Mr. Justice Chase upon the second ground: "If doubts could exist before the establishment of the present national government, they must be entirely removed by the 6th article of the Constitution, which provides 'That all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and 195 Ibid., Vol. II., p. 352. 196 The acquiescence of Mr. Justice Paterson in the first ground is shown by these words: "If the Legislature had authority to make the act, the Congress could, by treaty, repeal the act, and annul everything done under it," at p. 249. His acquiescence in the second ground is shown by his rather technical opinion having as its object the sustaining of the demurrer to the second plea which demurrer relied wholly on the constitutional provision. |