decisions, anything in the constitutions or laws of the several states to the contrary notwithstanding."

When the convention took up the clause for consideration, it amended it by inserting the word, "Constitution," and by changing the words "acts of the legislature" to "laws," so that in its amended form it read: "This Constitution, and the laws of the United States made in pursuance thereof, and all the treaties made under the authority of the United States, shall be the supreme law of the several states, and of their citizens and inhabitants; and the judges of the several states shall be bound thereby in their decisions, anything in the Constitutions or laws of the several states to the contrary notwithstanding."'3

§ 164. Pre-existing treaties.-Later the clause was amended by inserting the words "or which shall be made" after the words "all treaties made," for the purpose of removing any doubt that might exist as to the application of the clause to pre-existing treaties, by using language that covered both past and future treaties. The clause was then referred to the "Committee on Style," who struck out the words "in their decisions" after the words "bound thereby"; substituted the words "in every state" for the words "of the several states"; before the word "made" after the words "United States" inserted the words "which shall be," and substituted the phrase "supreme law of the land" for the phrase "supreme law of the several states, and of their citizens and inhabitants." This left the clause in the form in which it now appears in the Constitution. The convention rejected a proposition that "no treaty should be binding on the United States unless ratified by law."4

Mr. George Ticknor Curtis, speaking of the amendment to this clause, to make the Constitution, and the laws passed in pursuance of it, the supreme law of the land, binding upon all judicial officers, says: "It is a remarkable circumstance that this provision was originally proposed by a very earnest advocate of the rights of the States-Luther Martin. His design, however, was to supply a substitute for a power over State legislation, which had been embraced in the Virginia plan, and which was to be

2

654.

5 Marshall's Life of Washington,

Treaties-13

5 Marshall's Life of Washington, 654-658.

exercised through a negative by the national legislature upon all laws of the States contravening, in their opinion, the Articles of Union or the treaties subsisting under the authority of the Union. The purpose of the substitute was to change a legislative into a judicial power, by transferring from the national legislature to the judiciary the right of determining whether a state law supposed to be in conflict with the Constitution, laws, or treaties of the Union should be inoperative or valid. By extending the obligation to regard the requirements of the national Constitution and laws to the judges of the state tribunal, their supremacy in all the judicatures of the country was secured. This obligation was enforced by the oath or affirmation to support the Constitution of the United States; and, as we shall see hereafter, lest this security should fail, the final determination of questions of this kind was drawn to the national judiciary, even when they might have originated in a state tribunal." 5

§ 165. Under the authority of the United States. It will be observed that in this clause of the Constitution it is declared that all laws which shall be made "in pursuance" of the Constitution shall be the supreme law of the land, but that as to treaties, the language is, "All treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land." The explanation given for this difference of phraseology is that at the time the Constitution was adopted, certain treaties were in existence which had been entered into by Congress under the confederation, and it was desired to declare their continuing obligation. By using the phrase "under the authority of the United States," treaties previously made were placed on the same footing as those that might be made after the adoption of the Constitution, as such former treaties could not properly be described as made pursuant to a Constitution which had not yet been adopted.

"The power to make treaties and to send ambassadors and other public ministers and consuls are essential attributes of national sovereignty, and of that international equality which the interests of every sovereignty require it to preserve. Both

Curtis' Constitutional History of the United States, 2d ed., p. 554.

Rawle's A View of the Constitu

tion of the United States, 1st ed., p. 58, 2d ed., p. 65.

powers were possessed by Congress under the Confederation, but not to the extent to which they are now enjoyed; for then the former power was embarrassed by an exception, under which treaties might be substantially frustrated by regulations of the States, and the latter did not comprehend 'other public ministers and consuls.'

"As treaties with France and Holland, and especially the treaty of peace with Great Britain, existed, it became necessary to vary its terms in regard to treaties, from those relative to the laws of the United States; the declaration it contains in respect to the supremacy of the latter operating only in future, while in reference to the former the terms are, 'All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.' These terms were intended to apply equally to previously existing treaties, as well as to those made. subsequently to the Constitution; and it has, accordingly, been adjudged by the Supreme Court that they effectually repeal so much of the State laws and Constitutions as are repugnant to them."7

$166. Construction of clause.-The Constitution declares that all treaties made under the authority of the United States shall be the supreme law of the land. In an early case the supreme court of the United States was called upon to construe this clause. In 1796 it decided that by the treaty of peace made between Great Britain and the United States, on September 3, 1783, the law of Virginia sequestering British property was nullified. Under this statute a debt due before the war from an American to a British subject was, during the progress of the war, paid into the loan office of Virginia. The treaty, it was held, destroyed the payment made under the statute, revived the debt, and gave a right of recovery against the principal debtor.8

It was conceded that the legislature of Virginia had power to enact such a law because from the 4th of July, 1776, to the formation of the confederation, the American states possessed and exercised all the rights of independent governments, but the

7 William A. Duer's A Course of Lectures on the Constitutional Jurisprudence of the United States, 2d ed., Lect. VIII, p. 227.

Ware v. Hylton, 3 Dall. 235, 1 L. ed. 568.

treaty under the provisions of the Constitution declaring treaties to be the supreme law of the land, it was decided, superseded the act.9

§ 167. Treaty is equivalent to an act of Congress.-While it is true that a treaty is the supreme law of the land, it is not supreme in the same sense as is the Constitution itself. A treaty is equivalent in legal effect to a law of Congress, and a subsequent act of Congress will repeal or annul a prior treaty, as will a subsequent treaty annul a prior act of Congress, where there is a conflict. From the very nature of the Constitution a treaty cannot alter it, nor can a treaty be valid if it violates any of its provisions. The Constitution does not attempt to settle the effect of treaties when they conflict with acts of Congress, but the courts have uniformly announced the rule that a treaty may supersede a prior act of Congress, or an act of Congress may supersede a prior treaty.10

§ 168. Treaty is a contract.-A treaty is essentially a contract between two independent nations. If one of the contracting parties violates the stipulations of the treaty, a remedy for the violation must be sought by the party injured by reclamations upon the other, and the courts cannot determine whether the nation alleging a breach of treaty obligations has just cause of complaint. The validity of a law clear in its provisions cannot be assailed before the courts on the ground that it does not conform to the stipulations of a prior treaty. No superior efficacy can

' Ware v. Hylton, 3 Dall. 235, 1 L. ed. 568. Said Mr. Justice Chase: "I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is concluded neither the matter in dispute nor the conduct of either party, during the war, can ever be revived or brought into contest again. All violences, injuries, or damages, sustained by the government, or people of either, during the war are buried in oblivion; and all these things are implied in the very treaty of peace; and therefore not necessary to be expressed."

11

10 The Cherokee Tobacco, 11 Wall. 616, 20 L. ed. 227; Ward v. Race Horse, 163 U. S. 511, 16 Sup. Ct. 1078, 41 L. ed. 246; North etc. S. S. Co. v. Hedden, 43 Fed. 22; Clark v. Bates, 1 Dak. 50, 46 N. W. 512; Bartram v. Robertson, 21 Blatchf. 214, 15 Fed. 214; Minnesota Canal & Power Co. v. Pratt (Minn.), 112 N. W. 395.

be given to a treaty over an act of Congress. It is the endeavor of the courts, if they both relate to the same subject, to give them a construction that will make both effective, if this can be accomplished without violating the language of either. If, how ever, there is an inconsistency between them, the one last in date will control the other, if the stipulation on the subject in the treaty is self-executing. If the action taken by the legislative department is not satisfactory to the country with which the treaty has been made, it may adopt such measures as it deems proper for the protection of its interests, but it is beyond the powers of the courts to give any redress. The courts cannot determine whether the legislation of Congress was justified or whether the nation complaining has just cause to complain. The decision of questions of this character belong to the diplomatic and legislative departments of the government and not to the judiciary.12 "So far as a treaty made by the United States with any foreign nation can be 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." 13 An act of Congress imposing taxes on distilled spirits and tobacco. applies to the country of the Cherokee Nation, and prevails over the treaty with that nation.14

§ 169. Tariff laws and treaties.-The question as to the effect of tariff laws upon treaty stipulations has frequently arisen, and it has been uniformly held that treaty stipulations, when a conflict arises, are annulled, or perhaps, more correctly speaking, suspended, by the later acts of Congress. The legislative department may place restrictions and obligations upon all who owe obedience to our laws, with the understanding, of course, that the nation, in its character as a nation, may be responsible to another nation for any breach of treaty obligations. The legis

"Whitney v. Robertson, 124 U. S. 194, 8 Sup. Ct. Rep. 456, 31 L. ed. 386; Taylor v. Morton, 2 Curt. 454, Fed. Cas. No. 13,799.

"Head Money Cases, 112 U. S. 580, 5 Sup. Ct. Rep. 247, 28 L. ed. 798: A treaty may supersede a prior act of Congress. Foster v. Neilson, 2

Pet. 314, 7 L. ed. 415; and a prior treaty may be superseded by an act of Congress. Taylor v. Morton, 2 Curt. 454, Fed. Cas. No. 13,799; The Clinton Bridge, 1 Woolw. 155, Fed. Cas. No. 2900.

14 Cherokee Tobacco V. United States, 11 Wall. 616, 20 L. ed. 227.