CHAPTER XI.

OPERATION OF TREATIES AS MUNICIPAL LAW.

$70. Operation Without the Aid of State Legislation.-The primary purpose of the clause in the Constitution, declaring treaties to be the supreme law of the land, was to ensure their faithful observance without the aid or intervention of legislation on the part of the States, anything in the constitution or laws of the States to the contrary notwithstanding. Under the Articles of Confederation, although the power to make treaties was entrusted to the Congress, the fulfillment of the promise was ultimately dependent upon the action of the State legislatures. On various occasions the Congress was obliged to resort to recommendations to the legislatures for this purpose. Although, in the Federal letter to the States prepared by Jay and adopted unanimously by the Congress, April 13, 1787, shortly before the assembling of the Federal Convention, it was declared that treaties constitutionally made, ratified and published became in virtue of the Confederation part of the law of the land and were not only independent of the will and power of the legislatures of the States but obligatory on them, the States were nevertheless requested to repeal all acts then existing which might be repugnant to the treaty of peace, "as well to prevent their continuing to be regarded as violations of that treaty, as to avoid the disagreeable necessity there might otherwise be of raising and discussing questions touching their validity and obligation." Early in the Federal Convention, May 31, 1787, on motion of Franklin, it was unanimously agreed that the national legislature should have the power to negative all laws of the States which might contravene any treaties subsisting under the authority of the Union. On July 17, 1787, a provision was agreed to declaring that all treaties made and ratified under the authority of the United States should be the "supreme law of the respective States," and that the judiciaries of the several States should be bound thereby anything in the respective laws of the individual States to the contrary notwithstanding. The clause, "supreme law of the respective States," was changed to "supreme law of the land" in the Committee on Style and Arrangement near the close of the Convention. On August 23, 1787, a pro

vision expressly giving to the central government power to use the militia in the enforcement of treaties was stricken out on the suggestion of Gouverneur Morris that the provision was superfluous since treaties were to be laws.

That treaties, made under the authority of the United States, operate by virtue of Article VI of the Constitution, proprio vigore, as laws, and, without the aid of State legislation, supersede conflicting State acts, was fully established in Ware v. Hylton, decided by the Supreme Court, March 7, 1796. Opinions were read seriatim by the several justices who sat in the case, but upon this proposition there was no disagreement. Mr. Justice Chase, in the leading opinion, said: "A treaty cannot be the supreme law of the land, that is of all the 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 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." Mr. Justice Paterson, in referring to the fourth article of the treaty of peace with Great Britain, said: "All lawful impediments of whatever kind they might be, whether they related to personal disabilities, or confiscations, sequestrations, or payments into loan offices or treasuries, are removed. No act of any State legislature, and no payment made under such act into the public coffers, shall obstruct the creditor in his course of recovery against the debtor. The act itself is a lawful impediment, and therefore is repealed; the payment under the act is also a lawful impediment, and is made void.

*The fourth article embraces all creditors, extends to all pre-existing debts, removes all lawful impediments, repeals the legislative act of Virginia, which has been pleaded in bar, and with regard to the creditor annuls every thing done under it." In the

opinion read by Mr. Justice Iredell, who did not concur in the decision on the ground that the treaty did not have the effect of reviving as against the original debtor a debt then extinguished, it is declared in equally clear language that under the Constitution, "so far as a treaty constitutionally is binding, upon principles of moral obligation, it is also by the vigor of its own authority to be executed in fact. It would not otherwise be the supreme law in the new sense provided for, and it was so before in a moral sense. The provision extends to subsisting as well as to future treaties. I consider, therefore, that when this Constitution was ratified, the case as to the treaty in question stood upon the same footing, as if every act constituting an impediment to a creditor's recovery had been expressly repealed, and any further act passed, which the public obligation had before required, if a repeal alone would not have been sufficient." The concise statement of Mr. Justice Wilson was: "But 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 impos

sible 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." And Mr. Justice Cushing said: "Was there a power, by the treaty, supposing it contained proper words, entirely to remove this law, and this bar, out of the creditor's way? This power seems not to have been contended against, by the defendant's counsel. And, indeed, it cannot be denied; the treaty having been sanctioned, in all its parts, by the Constitution of the United States, as the supreme law of the land." It was held that, under the provision in the fourth article of the treaty of peace that creditors on either side should meet with no lawful impediment to the recovery of all bona fide debts theretofore contracted, a British creditor could recover against the original debtor, although the debt had been paid to the State of Virginia under an act of the legislature of that State of 1777, which declared such payment to be a lawful discharge. A like conclusion was reached in circuit by

3 Id., 277. 4 Id., 281. 5 Id., 282.

Chief Justice Jay (who had retired prior to the date of the decision of the Supreme Court in Ware v. Hylton) in respect of payment under the act of Virginia, and by Chief Justice Ellsworth (whose commission bearing date of March 4 was read in court March 8, 1796, the day following the date of the decision in Ware v. Hylton) in respect of payment under a similar act of North Carolina. With reference to the repeal of the act of the legislature by the treaty, Chief Justice Ellsworth said: "As to the opinion that a treaty does not annul a statute, so far as there is an interference, it is unsound. * * A treaty, when it is in fact made, is, with regard to each nation that is a party to it, a national act, an expression of the national will as much so as a statute can be. And it does, therefore, of necessity annul any prior statute so far as there is an interference."

6 Jones v. Walker, 2 Paine 688.

6a Hamilton & Co. v. Eaton (argued at the June term, 1796), 1 Hughes 249, 259; s. c. 2 Martin's Repts. 1. See infra, 514, for other cases in which the provisions of Articles IV and V of the treaty of peace with Great Britain were enforced and held to have superseded conflicting State legislation.

An eminent author has, after an extensive examination of the record, reached the conclusion that the decision of the issue raised by the pleadings in Ware v. Hylton did not cover the question of the effect of a treaty on an inconsistent statute of a State. It is his view that a majority of the court were of the opinion that the act of Virginia of October, 1777, was "invalid or inoperative," and that, accordingly, the decision of the court could not reach the question of the effect of the treaty on this act. The case was argued February 6, 8, 9, 10, 11 and 12, 1796, before Justices Chase, Paterson, Iredell, Wilson, and Cushing. It is admitted that each of the justices, who sat in the case and concurred in the decision, took occasion to declare in unequivocal language the supremacy of the treaty over the State statute. It was provided in the treaty that "creditors" on either side should meet with "no lawful impediment" to the recovery of all “bona fide debts" thertofore contracted. The Virginia statute of 1777 provided that it should be lawful for any citizen of the State, owing money to a subject of Great Britain, to pay the same or any part thereof into the loan office of the State, receiving therefor a receipt, which receipt should "discharge him from so much of the debt" as had been so paid. This was a suit against the original debtor who had made such payment. The argument of Marshall for the defendant in error (i. e., the original debtor) before the Supreme Court was, as reported, in effect that the debt having been extinguished by payment to the State under the statute prior to the date of the treaty, no "debt" existed on the date of the treaty, which by its terms was protected; that there could be no "creditor" where there was no debt; and that the provision in the treaty "must be construed