ted States by George Ticknor Curtis will perpetuate the name of that author as long as the Constitution shall remain the

"Nor is this inconsistent with the power of Congress to pass subsequent laws, qualifying, altering or wholly annulling, a treaty; for such an authority, in certain cases, is supported on grounds wholly independent of the treaty-making power. For, as Congress possesses the sole right of declaring war, and as the alteration or abrogation of a treaty tends to produce it, the power in question may be regarded as an incident to that of declaring

war.

sentation would be fallacious. It force, are binding upon the whole would subject the public faith to nation. If a treaty require the payjust imputation and reproach, and ment of money to carry it into efdestroy all confidence in the na- fect, and the money can only be tional engagements. The immedi- raised or appropriated by an Act ate operation of a treaty must, of the Legislature, it is morally obtherefore, be to overrule all exist-ligatory upon the legislative power ing laws incompatible with its to pass the requisite law; and its stipulations. refusal to do so would amount to a breach of the public faith, and afford just cause of war. That department of the Government which is intrusted with the power of making treaties may bind the national faith at its discretion; for the treaty-making power must be coextensive with the national exigencies, and necessarily involves in it every branch of the national sovereignty, of which the operation may be necessary to give effect to negotiations and compacts with foreign nations. If a nation have conferred on its Executive department, without reserve the right of treating and contracting with other sovereignties, it is considered as having invested it with all the power necessary to make a valid contract, because that department is the organ of the Government for the purpose, and its contracts are made by the deputed will of the nation. The fundamental laws of the State may withhold from it the power of alienating the public domain, or other property belonging to it; but if there be no express provision of that kind, the inference is that it has confided to the department, charged with the duty and the power of making treaties, a discretion commensurate with all the great interests of the nation. (Citing Vattel's Law of Nations, b. 1, ch. 21, sec. 2; 3 Dall. 199;

The exercise of such a right may be rendered necessary to the public welfare and safety, by measures of the party with whom the treaty was made, contrary to its spirit, or in open violation of its letter; and on such grounds alone can this right be reconciled either with the provisions of the Constitution, or the principles of public law. A memorable instance has occurred in our history of the annulment of a treaty by the act of the injured party. In the year 1798, Congress declared that the treaties with France were no longer obligatory on the United States, as they had been repeatedly violated by the French Government, and our just claims for reparation disregarded. Nevertheless, all treaties, as soon as ratified by competent authority, become of absolute efficacy, and, as long as they continue in

foundation of our Government. Ile states the reason for the adoption of Article VI, in clear and concise terms as follows:

Grotius' Law of War and Peace, | commerce and navigation with

b. 3, ch. 20, sec. 7; ibid. b. 4, ch. 2, secs. 11, 12; 1 Cranch, 103.)

"The concurrence of each branch of the Legislative power, we have seen, is necessary to a declaration of war, while the President with the advice and consent of the Senate alone, may conclude a treaty of peace. Now a power to make treaties necessarily implies a power to settle the terms on which they shall be concluded; and foreign States could not deal safely with the Government on any other presumption. That branch of the Government which is intrusted thus largely and generally with authority to make valid treaties of peace, can, of course, bind the nation by the alienation of part of its territory; and this, according to an approved writer on the law of nations, (Grotius, b. 4, ch. 2, secs. 11, 12) is equally the case, whether that territory be already in the occupation of the enemy, or remain in possession of the nation, or whether the property be public or private. In a case decided in the Supreme Court of the United States, it was admitted that individual rights acquired by war, and vested rights of the citizen, might be sacrificed by treaty for national purposes. (1 Cranch, 103.)

Great Britain, in 1794, gave rise to much public discussion as to the nature and extent of the treatymaking power. A resolution was passed by the House of Representatives, requiring the President to lay before them a copy of his instructions to the Minister who conducted the negotiation, with the correspondence and other documents, relative to the treaty, excepting such papers as any existing negotiations might render it improper to disclose."

Mr. Duer then quotes largely from the reply of President Washington to this resolution which is quoted in full as a note to § 292 post of this volume, and in which he refused to comply with the request.

"The principles thus laid down by General Washington, were so far acquiesced in by the House, that they passed a resolution, disclaiming the power to interfere in making treaties; but asserting the right of the House of Representatives, whenever stipulations are made on subjects committed by the Constitution to Congress, to deliberate on the expediency of carrying them into effect; and subsequently it was declared, by a small majority, to be expedient to "And in another case, it was pass the laws necessary for carryheld to be a clear principle of na- ing the treaty into effect. From tional law, that private rights that time the question remained might be surrendered by treaty to undisturbed until the conclusion secure the public safety, but the of a convention with Great Britain, Government would be bound to in 1815, when the House of Repremake compensation and indemnity sentatives, after much debate, to the individual whose rights had passed a bill specifically enacting, thus been sacrificed. on a particular subject, the same "The conclusion of a treaty of provisions which were contained

"The articles specially designed to assert and carry out the supremacy of the National Government, as they came from the Committee, embodied the resolutions on the same subject which had passed the Convention. The only material addition consisted in the qualification that the legislative acts of the United States, which were to be the supreme law, were such as should be made in pursuance of the Constitution. Subsequently the article was so amended as to make the Constitution, the laws passed in pursuance of it, and the treaties of the United States the supreme law of the land, binding upon all judicial officers.

"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 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 tribunals, their supremacy in all the judicatures of the country was secured. This obligation

as stipulations in the treaty. This vention with Great Britain, should, dangerous innovation on the treatymaking power was warmly opposed by a minority in the House, and disagreed to by the Senate; but, after several conferences between them, the affair terminated in a compromise which it is difficult to reconcile with a sound construction of the Constitution. The law passed on the occasion briefly declares that so much of any Act as imposes a duty on tonnage, contrary to the provisions of the con- this note.)

from the date of that instrument, and during its continuance, be of no force or effect; thus setting a precedent which may produce future difficulty in our national legislation, though the Judicial tribunals would probably regard such a law as a work of supererogation, or a mere nullity, and, from its retroactive operation, at variance with the spirit of the Constitution." (For citation see head of

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.”

$265. Joseph Story, the commentator of the Constitution.-Joseph Story was but nine years of age when the Constitution was finally ratified, but he had the double advantage of acquaintance with many of those who had participated in framing it, and of being called upon to construe it as one of the Justices of the Supreme Court of the United States at the very early age of thirty-two, being the youngest man who ever sat upon that bench.1

While the palm for Constitutional exposition must necessarily be given to the great Chief Justice, the centennial of whose appointment? has this year been celebrated throughout the United States in a manner appropriate to the occasion, and to the memory of one of the greatest jurists and most distinguished statesinen of this, or any other country, we must not overlook the debt of gratitude we owe to Joseph Story, for many years Marshall's associate upon the Supreme Court of the United States, and who not only displayed great ability in his opinions, on constitutional and other ques

§ 264.

1 Constitutional History of the United States from the Declaration of Independence to the close of the Civil War, by George Ticknor Curtis, in two volumes, 2d edition, New York, 1889, p. 554.

§ 265.

Joseph Story, born Sept. 18, 1779, appointed Associate Justice of the Supreme Court 1811, by President Madison, died Sept. 10, 1845. His decisions extend through thirty-five volumes of the Reports of the Supreme Court; many of them relate to constitutional construction, and several of them to the question under discussion.

2 John Marshall of Virginia was born September 24, 1755, he was

appointed Chief Justice of the United States by President John Adams early in 1801. He assumed his place as Chief Justice on February 4, 1801, and occupied that position until his death, July 6, 1835. On February 4, 1901, centennial anniversary exercises were held under the auspices of the American Bar Association in Washington, D. C.; the New York State and New York City Bar associations jointly in Albany, N. Y., and under various local associations in many other cities of the United States, Chief Justice Fuller, Associate Justice Gray, John M. Dillon, Wayne McVeagh, Wm. Wirt Howe, W. Bourke Cochran and others delivering addresses at various places.

tions of law, but who, on some occasions, forced the entire Court into uniting with him in expounding the limitations upon, and at the same time expanding the powers of, the Federal Government.

§ 266. Story's views on Article VI of the Constitution. -His "Commentaries" on the Constitution published in 1833, at once became, as they have ever since remained, a standard authority on the construction of the Constitution from legal and historical standpoints. In speaking of Article VI, he says: "The propriety of this clause would seem to result from the very nature of the Constitution. If it was to establish a national government that government ought, to the extent of its powers and rights, to be supreme. It would be a perfect solecism to affirm that a national government should exist with certain powers, and yet that in the exercise of those powers it should not be supreme. In regard to treaties, there is equal reason why they should be held, when made, to be the supreme law of the land. It is to be considered that treaties constitute solemn compacts of binding obligation among nations; and unless they are scrupulously obeyed and enforced, no foreign nation would consent to negotiate with us; or if it did, any want of strict fidelity on our part in the discharge of treaty obligations would be visited by reprisals or war.2. It is, therefore, indispensable that they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws. This will not prevent them from being canceled or abrogated by the nation upon grave and suitable occasions; for it will not be disputed that they are subject to the legislative power, and may be repealed, like other laws, at its pleasure, or they may be varied by new treaties. Still, while they do subsist they ought to have a positive binding efficacy as laws upon all the States and all § 266.

1 Commentaries on the Constitution of the United States, with a Preliminary Review of the Constitutional History of the Colonies and States before the adoption of the Constitution, by Joseph Story, LL. D., in two volumes, 5th

edition, by Melville M. Bigelow, Ph. D., Boston, 1891, vol. II, § 18371840, pp. 603–607.

2 Citing the Federalist, No. 64. (See §§ 244-245, pp. 381 et seq. ante.)

3 See numerous cases cited in notes on p. 605, 2 Story's Com.