Page images

rying on therein any trade or occupation, or of the written description of the property covered by storing or keeping therein articles, goods or mer- the policy." chandise denominated hazardous or extra hazardous Johnson, C., said: “Under the condition in the or specially hazardous, in the second class of haz- policy, suspending its operation so long as the ards annexed to the policy, except as therein spe- premises should be used for the purpose of carrying cially provided for, or thereinafter agreed to by the on therein any trade or occupation, or for storing or defendant, in writing upon the policy, then so long | keeping therein, any articles, goods or merchandise, as the same shall be so used the policy was to be of denominated hazardous or extra hazardous or speno effect. The policy of insurance was accepted by cially hazardous, in the second class of the classes the plaintiff with the condition last referred to, and of hazards annexed to the policy, except as therein the privilege to keep ‘fire-crackers on sale' was specially provided for or thereafter agreed to by the specially written in the policy, and added ten cents corporation in writing upon the policy, it is the setmore of premium to the $100. “Fire-works' are tled law of this State, that any such article is speclaimed as 'specially hazardous,' and added fifty cially provided for, if it, as matter of fact, enters cents or more per $100 to the rate of insurance, into and forms a part of the kind or line of busiand it is claimed, that to be covered by the insur- ness specified in the written part of the policy in ance, must have been specially written in the policy, the description of the risk assumed. The insurers which in this case was not done. The rule which being bound to know the nature and kind of artiprevails in the interpretation of contracts of insur- cles belonging to the business and occupations ance is or should be the same as in all other written against the risks of which they undertake to insure, contracts of whatever nature. The intent is to be the specification of the business is a sufficient speascertained and observed, and if it clearly appears cial provision for all the articles belonging to it unby the writing, the contract must have effect ac- der the condition in the policy, even though some cording to its terms. In this case, without evidence of those articles belong to the second class of hazaliunde, it would be difficult, if not impossible, to ards mentioned in the condition. Harper v. Albany say what articles in fact were intended to be insured. M. Ins. Co., 17 N. Y. 194; Harper v. N. Y. City The court cannot judicially take notice of the pre- Ins. Co., 22 id. 441." cise commodities which make up a stock of fancy “In conclusion it is proper to advert to the degoods, toys, and other articles in that line of busi- cision in Steinbach v. Insurance Co., 13 Wall. 183, ness, nor can it be declared, as a legal proposition, in which a different construction was placed upon what precise things pertain to the occupancy of a similar terms in another policy in favor of the plaintbuilding in the city of Baltimore as a ‘German job- iff here. The New York cases do not seem to have ber and importer.' In the prosecution of his busi- been adverted to, nor the case itself much considness the plaintiff did keep ‘fire-works,' and the loss ered. We should not be justified under these cirwas occasioned by their accidental ignition, and it cumstances, in abandoning a settled line of decision appears to have been absolutely necessary, in order in our own State in order to conform to it.” The to settle the dispute between the parties, to ascer- doctrine of this case is reiterated in Hall v. Insurtain whether the keeping of 'fire-works’ for sale ance Co. of North America, 58 N. Y. 292. was in the line of the plaintiff's business. If not, The facts in Steinbach v. Insurance Co., above it is very clear they were not insured against, be- cited, were the same as in the New York case, cause they were not specially written in the policy,' and the decision was exactly the reverse. The court and the fact that the privilege to keep 'fire-crackers simply said: “It is not pretended that fire-works on sale' was specially written in the policy, affords are included under the name of fire-crackers. But a very strong argument in favor of the defendant the plaintiff contends that they are included in the that 'fire-works' were not insured against, for there description of other articles in his line of business.' was no special writing in regard to them, unless in. The answer to this is that the policy itself requires cluded in the written words in the line of the busi- that fire-works shall be specially written in it. ness of the plaintiff. I do not understand it was They are among the goods described as specially hazclaimed by the counsel for the defendant, on the ardous, and add 50 cents on the $100 to the orditrial, that the plaintiff was not at liberty to show nary rate of insurance. It is impossible to think that keeping 'fire-works' for sale was in the line of that they are described by the general terms used in the plaintiff's business. It was in fact shown, with- the policy. The insurance was at the ordinary out objection, that he had always kept them as a rates. There can be no doubt that the evidence was part of his stock in trade, and had some on hand properly rejected.” No authorities were cited. Mr. when the insurance was effected. Evidence was Wood says this is in conflict with all the better class also given, on the part of the plaintiff, tending to of cases. Fire Ins., 370, note. show that similar dealers usually kept fire-works as In Whitmarsh v. Conway Fir Ins. Co., 16 Gray, a part of their stock in trade. Evidence on the 359, the insurance was on a “stock in trade, conpart of the defendant was given tending to show sisting of the usual variety of a country store, exthe contrary, but it was not very conclusive. cept dry goods," with “permission to keep and sell If, therefore, as a matter of fact, the keeping of burning fluid and gunpowder,” and provided that fire-works was in the line of the plaintiff's business, if certain enumerated articles, denominated hazardthe cases are quite too numerous and familiar to ous, extra hazardous, and risks prohibited, were need citation, that ‘fire-works' were embraced in 'kept on the premises, the policy should be void, un



less they were specially provided for. Held, that therefore, applicable to such instruments, which the keeping of some of such enumerated articles did gives to the written portion of them controlling not avoid the policy, they being such as are usually force, when there is any conflict or want of harkept in a country store, and that parol evidence was mony between it and the printed stipulations. Ang. admissible to prove that fact. The articles in ques- on Ins., $$ 14, 15.” " All such articles are just as tion were oil, friction matches, glass and earthen-clearly embraced in the policy as if each article thus

This followed Elliott v. Hamilton Mutual In- necessarily used was enumerated at length. Insursurance Co., 13 Gray, 139, where the insurance was ance companies must be deemed to be familiar with on "goods usually kept in a country store," and the the materials necessary to the carrying on any trade prohibition was of "cotton or woolen waste or or business, the “stock in trade' of which they in

Held, not to cover clean, white cotton rags, sure, and in issuing the policy they must be deemed if usually forming part of the stock of a country to have intended to include all such materials in the store. (The mere description of the premises as “a risk.” Citing the Harper case. provision and grocery store,” would not, however, In Archer v. Merchants and Manufacturers' Ins. Co., outweigh an express prohibition. Whitmarsh v. 43 Mo. 434, the insurance was on a wagonmaker's Charter Oak Ins. Co., 2 Allen, 581.)

shop and materials, with a printed prohibition of In Niagara Fire Ins. Co. v. De Graff, 12 Mich. 124, benzine. The insured kept benzine in a paint shop the insurance was on a stock of “groceries,” with in the same building. The same doctrine was hield an exception of alcoholic liquors, unless specially as in the last case, following the New York cases. provided or agreed to in writing on the policy. There is a dictum to the same effect in Leggett v. Held, that the liquors were covered if the jury Ins. Co., 10 Rich. 202. should find them to be groceries.” The court said: In Collins v. Farmville Ins. and Banking Co., 79 “By the use of a term including them they are 'spe- N. C. 279; S. C., 28 Am. Rep. 322, the insurance cially provided for in writing on the policy.' In- was on a stock of “drugs and medicines," with a suring a class of goods includes what is usually prohibition of gunpowder, fire-works, salt petre, etc. contained in it, whether extra hazardous or not." Held, that this did not extend to saltpetre kept as a Citing the New York Bryant and Harper cases. drug.

In Viele v. Germania Insurance Co., 26 Iowa, 9, It therefore seems that the principal case is utterly the company consented to the use of the insured opposed to the decisions in all the other States, and premises as a manufactory of window shades, in that it is quite difficult to reconcile it with previous the conduct of which business benzine was necessa- decisions in the same State. We think the matter rily used. The policy prohibited the keeping of can be tested thus: suppose the written clause had benzine. But it was held that the policy was not insured all the usual articles of the stock of a counavoided. The court said: “The consent to the try store, specifically naming them all, and includmanufacture of the window shades implied a con- ing turpentine and benzine, and then in the printed sent to the use of benzine if it was necessary or portion had excepted and prohibited turpentine and commonly used in making those articles; otherwise benzine; would it be contended that the insurance a direct permission to continue the manufactory did not cover turpentine and benzine ? In the polwould be defeated by the prohibition in the policy." icy in question turpentine and benzine were as effectThis is founded on the Harper and McLaughlin ually included in the written clause, if they form

part of the usual stock of a country store, as if they In Phænix Insurance Co. v. Taylor, 5 Minn. 492, had been specifically named. the insurance was 'on a stock of goods consisting of a general assortment of dry goods, groceries, crockery, boots and shoes, and such goods as are

THE LEGAL OPERATION OF TREATIES. usually kept in a general retail store.” By a printed clause, the keeping of gunpowder was prohibited

BY SAMUEL T. SPEAR, D. D. unless especially consented to in writing on the policy. It was held that the written portion prevailed TREATIES of the United States are a part of "the over the printed, and that the written words would supreme law of the land," and, as such, binding authorize the keeping of gunpowder, it being proved upon the judges in the several States. All cases in law

and equity arising under these treaties come within that it was usually kept in general retail stores.

the cognizance of the National judiciary. Such cases, The court said: “In the interpretation of such in- arising in State courts, are among those that may by struments it is always to be kept in sight, that the writ of error be transferred to the Supreme Court of main portion of the policy, with all its conditions the United States for final settlement. Treaties are and restrictions, is in a printed form, intended to

hence rules for guiding the action of courts, both State

and National, in determining rights growing out of or be sufficiently general to meet all cases, and prevent protected by them. In this respect they have the the necessity for drawing a policy for each risk character and authority of supreme municipal laws taken, which would very much retard and embarrass within the territory and among the people of the the transaction of such business, and that the writ- United States. The courts of this country, both State ten part, inserted by the parties, is more immedia and National, have on numerous occasions expounded

and applied them as laws. And thus a body of prinately expressive of their meaning and intention con

ciples, or legal propositions relating to treaties, has cerning the contract they are entering into, than the been gradually established by judicial authority, esprinted portion. There is a rule of construction, pecially by the highest tribunal of the land. A brief


* * *

statement of some of these principles will constitute Indian nations, and consequently admits their rank the object of this article.

among those powers who are capable of making treat1. Courts take judicial notice of treaties as public ies." As to the words “treaty” and “nation,” he laws, equal in rank to the laws of Congress. They are added: “We have applied them to Indians as we havo a part or the whole of the law in every case to which applied them to other nations of the earth. They are they are applicable; and courts are presumed to know applied to all in the same sense." what the law is, as thus established, and where it is to In Turner v. The American Baptist Missionary Union, be found. Treaties are preserved in the archives of 5 McLean, 344, Mr. Justice McLean said: “It is conthe government, and are, moreover, published by its tended that a treaty with Indian tribes has not the authority as rules for courts of justice, and that, too same dignity and effect as a treaty with a foreign and whether they are reminded of them or not in the independent nation. This distinction is not authorpleadings. It is their business to understand this ized by the Constitution. Since the commencement branch of the law. Mr. Justice Story, in Martin v. of the Government treaties have been made with the Hunter's Lessee, 1 Wheat. 304, referring to a treaty of Indians, and the treaty-making power has been exerthe United States, said that it “was uot necessary to cised in making them. They are treaties within the have been stated, for it was the supreme law of the meaning of the Constitution, and as such are the suland, of which all courts must take notice."

preme law of the land." And, as to their rank, treaties stand on the same It is sadly true that the political department of the footing as the acts of Congress, and are to be so re- Government has in numerous instances most shamegarded by courts. Chief Justice Marshall, in The Uni- fully disregarded its treaties with the Indian tribes. ted States v. The Schooner Peggy, 1 Cranch, 103, said The National judiciary, however, has uniformly asthat "the Constitution of the United States declares a serted and maintained the sacredness of their obligatreaty to be the supreme law of the land. Of conse- tion and their authority as a part of “the supreme law quence, its obligation on the Courts of the United of the land." States must be admitted.

Where a treaty

3. The cases in law and equity” arising under affects the rights of parties litigating in court, that treaties of the United States are such, and such only, treaty as much binds those rights, and is as much to as involve rights that directly grow out of or are dibe regarded by the court as an act of Congress."

rectly protected by these treaties. On this point Chief So, also, in Foster v. Neilson, 2 Pet. 253, the same Justice Marshall, in Owings v. Norwood's Lessee, 5 eminent jurist said that a treaty of the United States Cranch, 344, remarked: “The words of the Constituis “to be regarded in courts of justice as equivalent to tion are 'cases arising under treaties.' Each treaty an act of the Legislature, whenever it operates of itself stipulates soinething respecting the citizens of the two without the aid of any legislative provision.” Whether nations, and gives them rights. Whenever a right therefore a law be established by the action of Con- grows out of or is protected by a treaty, it is sancgress, or by an exercise of the treaty power, is an im- tioned against all the laws and judicial decisions of the material circumstance in the judicial notice to be States; and whoever may have this right, it is to be taken of it, and in the rank to be assigned to it.

protected. But if the person's title is not affected by 2. This judicial notice extends to treaties which pre- the treaty, if he claims nothing under a treaty, his ceded the adoption of the Constitution, as well as to title cannot be protected by that treaty." those made since its adoption, and also to treaties It was accordingly held that the twenty-fifth secwith the Indian tribes, as well as to those with foreign tion of the Judiciary Act of 1789, providing for a writ nations. The Constitution expressly specifies all treat- of error from the Supreme Court of the United States ies made, or which shall be made, under the authority to the highest State courts, in cases in which the validof the United States," as a part of “the supreme law ity of a treaty is drawn in question, etc., must be so of the laud." The attribute of supremacy hence at- restrained as to make it conformable to the Constitutaches to them, whether made by the United States tion, and limit the judicial power to cases actually under the Articles of Confederation, or by the Presi- arising under treaties. The Constitution itself fixes dent, with the approval of the Senate, under the au- this limit. If the right does not so arise, then it canthority of the Constitution. Mr. Justice Chase, in not make a case under a treaty. Henderson v. TenWare v. Hylton, 3 Dall. 199, referring to a particular nessee, 10 How. 311; Gill v. Oliver's Executors, 11 id. article in the treaty of peace with Great Britain, made 529; and Verden v. Coleman, 1 Black, 472. in 1783, said that it is “retrospective and is to be con- 4. The construction of treaties, considered as laws sidered in the same light as jf the Constitution had affecting rights as between individuals, is exclusively beeu established before the making of the treaty of a judicial funotion. Mr. Justice Grier, in Wilson v. 1783.” Force was given to this treaty in its relation to Wall, 6 Wall. 83, observed : “Congress has no constitua law ertacted by the Legislature of Virginia in 1777. tional power to settle the rights under treaties, except The priority of the treaty to the Constitution was held in cases purely political. The construction of them is not to impair its efficacy as a supreme law.

the peculiar province of the judiciary when a case So, also, treaties with the Indian tribes, whether shall arise between individuals.” Congress may legismade before or after the adoption of the Constitution, late for the execution of treaties by establishing courts have the same legal character as those made with for- and defining their jurisdiction; but the work of exeign nations, and are to be so regarded by courts of jus- pounding them and applying them as laws, and by tice. Chief Justice Marshall, in Worcester v. The State them determining the rights and obligations of indi. of Georgia, 6 Pet. 515, declared certain laws of Georgia viduals interested in or affected by them as laws, beto be unconstitutional, and, among other reasons, as- longs to the courts of the land. In this respect there signed the fact that "they were in direct hostility is no distinction between a treaty and a law enacted with treaties repeated in a succession of years, which by Congress. The province of the judiciary is the mark out the boundary that separates the Cherokee same in both cases. country from Georgia, guaranty to them all the land This function of construction is simply one of interwithin their boundary, solemnly pledge the faith of pretation, rigidly applied to all parts of the treaty. the United States to restrain their citizens from tres- Mr. Justice Story, in The Amiable Isabella, 6 Wheat. passing on it, and recognize the pre-existing power of 1, thus stated this doctrine: “We are to find out the the'nation to govern itself." He also said: “The Con- intention of the parties by just rules of interpretation stitution, by declaring treaties already made, as well as applied to the subject-matter, and having found that to be made, to be the supreme law of the land, bas our duty is to follow it as far as it goes, and to stop adopted and sanctioned the previous treaties with the where that stope, whatever may be the imperfections




or difficulties which it leaves behind.

We are not at liberty to dispense with any of the conditions or requirements of the treaty, or to take away any qualification or integral part of any stipulation upon any motion of equity or general convenience or essential justice. The terms which the parties have chosen to fix, the forms which they have prescribed, and the circumstances under which they are to have operation, rest in the exclusive discretion of the contracting parties. * * We can as little dispense with forms as with substance." What is sometimes called "judge-made" law has no application to treaties between sovereign nations.

The general rule for the construction of treaties is that furnished by the established sense of their words, unless the treaties themselves expressly define some of the words in a different sense. Mr. Justice Daniel, in United States v. D'Auterive, 10 How. 609, said: “Compacts between governments or nations, like those between individuals, should be interpreted according to the natural, fair and received acceptation of the terms in which they are expressed." This rule of common sense is alike applicable to all contracts, whether under municipal or international law. The rule rests upon the assumption that the contracting parties understood at the time of the contract the received sense of the words they employed, and that they meant to make their stipulation with each other according to this seuse. This is the sense which it is the duty of courts to enforce, unless a different sense is expressly stated in respect to some word or words that may be used.

Courts, in applying treaties to specific cases, are to assume that nations, ip making contracts with each other, intend to act in good faith, and hence that they never intend to authorize or protect fraudulent transactions under the color of these treaties. Mr. Justice Story, in The United States v. The Amistad, 15 Pet. 518, observed: “In the solemn treaties between nations it

mination, but simply a case in which they are thus divested by the treaty itself, subject to the constitutional requirement that a “just compensation" must be made.

6. Treaties, regarded simply as contracts between the governments making them, take effect at and from the date of their signature, unless they otherwise stipulate; but considered as laws affecting the rights of citizens of the United States, they do not take effect until ratified and proclaimed. The first of these propositions was affirmed by the Supreme Court of the United States in Davis v. The Police Jury of Concordia, 9 How. 280, and both were affirmed in The United States v. Arredondo, 6 Pet. 691. Both were again affirmed in Haver v. Yaker, 9 Wall. 32, in which Mr. Justice Swayne said: “It is undoubtedly true, as a principle of international law, that, as respects the rights of either government under it, a treaty is considered as concluded and biuding from the date of its signature. In this regard the exchange of ratifications has a retroactive effect, confirming the treaty from its date. But a different rule prevails when the treaty operates ou individual rights.

As the individual citizen on whose rights it operates has no means of knowing any thing of it while before the Senate, it would be wrong in principle to hold him bound by it, as the law of the land, until it was ratified and proclaimed. And to construe the law, so as to make the ratification of the treaty relate back to its signing, thereby divesting a title already vested, would be manifestly unjust and cannot be sanctioned."

This relates to a treaty considered simply as a law, and, as such, affecting private rights. It fixes the date at which a treaty becomes operative as a law. The reason for the rule lies in its obvious justice. Until ratified and proclaimed, a treaty has no form of publicity of which the private citizen can take notice; and to bind him by it as a law, without any publicity, would be manifestly wrong and might work serious injustice to his rights.

[ocr errors]

is never to be assumed that either state intends to pro- | * 7. The competency of the coutracting parties to make


[ocr errors]

vide the means of perpetrating or protecting frauds; but all provisions are to be construed as intended to be applied to bona fide transactions." When a fraud is attempted under the color and protection of a treaty, it is, as remarked by the learned justice, “the duty of our courts to strip off the disguise and look at the case according to its naked realities.” This is precisely what was done by the court in the case of The Amistad.

5. Rights of property acquired and vested under treaties are not divested by their termination, even by war.

Mr. Justice Washington, in The Society, etc., v. New Haven, 8 Wheat. 464, stated this doctrine as fol. lows: “The termination of a treaty cannot divest rights of property already vested under it. If real estate be purchased or secured under a treaty it would be most mischievous to admit that the extinguishment of the treaty extinguished the right of such estate. In truth, it no more affects such rights than the repeal of a municipal law affects rights acquired under it. We think, therefore, that treaties stipulating for permanent rights and general engagements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the ocourrence of war, but are at most only suspended while it lasts; and unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operation on the return of peace.”

It was held by the United States Court of Claims, in Meade v. The United States, 2 Ct. of Cl. 224, that the United States may take private property for public use by the terms of a treaty, or may release the choses in action of American citizens to a foreigu government, making, of course, "just compensation "for the same. This, however, would not be a case in which rights of property vested under a treaty are divested by its ter

a treaty is not a question into which courts can inquire as a condition precedent to regarding it as a law. The President, with the consent of the Senate, is constitutionally competent to make a treaty; and as to the treaty-making competency of the party with whom the treaty is made, they are the sole judges. It is the duty of courts to accept their decision as final, and apply the treaty as they find it. The question is not judicial, but political, and belongs to the treatymaking power.

Chief Justice Taney, in Doe v. Braden, 16 How. 635, remarked that a treaty made by the President, with the approval of the Senate, is “a law made by the proper authority,” and that “ courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States." He added: “It would be impossible for the executive department of the Government to conduct our foreigu relations with any advantage to the country, and to fulfill tbe duties which the Constitution has'imposed upon it, if every court in the country was authorized to inquire and decide whether the person who ratified the treaty in behalf of the foreign nation had power, by its constitution and laws, to make the engagements into which he entered.”

In Fellows v. Blacksmith, 19 How. 366, an objection was made to a treaty with a certain tribe of Indians, on the ground that the chiefs and head-men were not represented in the negotiations: and to it Mr. Justice Nelson replied as follows: “But the answer to this is, that the treaty, after executed and ratified by the proper authorities of the Government, becomes the supreme law of the land; and the courts can no more go behind it for the purpose of annulling its effect and operation, than they can behind an act of Con. gress."


The President, with the advice and consent of the be a part of “the supreme law of the land,” and Senate, having exercised the power vested in him by hence, that this treaty enabled “ British creditors to the Constitution in making a treaty, the treaty itself, recover debts previously contracted to them by our it constitutional, and if it does not require legislation citizens, notwithstanding the payment of the debts for its execution, is ipso facto a law for the government into a State treasury had been made during the war of courts. Their business is to apply it without any under a State law of sequestration." attempt to review the action of the President in The principle involved and asserted in this case is making it.

that the treaties of the United States are, as laws of 8. Treaties that require no legislation on the part of the land, paramount to all the forms of State authority, Congress to carry them into effect have the character and hence, that the latter are null and void, so far as of supreme laws when ratified and proclaimed; but if they are in conflict with the former. A treaty," said they require such legislation for their execution, then Mr. Justice Chase, “cannot be the supreme law of the they are not a rule for courts until the necessary legis- land – that is, of all the United States -- if any act of lation has been supplied. Chief Justice Marshall, in a State Legislature can stand in its way." "The treaty,” Foster v. Neilson, 2 Pet. 253, having adverted to the said Mr. Justice Wilson, “is sufficient to remove every fact that “the Constitution declares a treaty to be the impediment founded on the law of Virginia." “The law of the land,” proceeded to say: “It is, conse- treaty then as to the point in question," said Mr. Jusquently, to be regarded in courts of justice as equiva- tice Cushing, “is of equal force with the Constitution lent to an act of the Legislature, whenever it operates itself." of itself without the aid of any legislative provision. This early decision as to the paramount authority of But when the terms of a stipulation import a contract, treaties, when compared with State constitutions and when either of the parties engages to perform a par- laws has become the settled doctrine of American courts ticular act, the treaty addresses itself to the political, Owings v. Norwood's Lessee, 5 Crauch, 314; Fairfax's not the judicial department, and the Legislature must Devisee v. Hunter's Lessee, 7 id. 603; Gordon's Lessee execute the contract before it can become a rule for v. Halliday, 1 Wash. 291 ; and Fisher v. Harden, 1 Paine, the court." The same doctrine was stated by Mr. 55. The Constitution admits of no doubt on this subJustice McLean, in Turner v. The American Baptist ject. It is the duty of all State judges to regard the Missionary Union, 5 McLean, 344.

treaties of the United States as supreme laws, and the Whether then a treaty is of itself a law of the land or same duty is devolved on the National judiciary. If not depends, according to these authorities, upon its the former fail to do so there is a remedy for the failcharacter and this is to be determined by examining the ure, in the powers of the latter. terms in which it is expressed. If by its terms it is an 10. The constitutional validity of treaties, considered executed contract, acting proprio vigore upon the sub- as municipal laws, is a question which courts, with ject-matter involved, then it is a part of the law of the proper cases before them, are authorized to consider land, and as such, is to be applied by courts in the ab- and determine. It is supposable that the President sence of any legislation to give it effect. If, however, might, with the advice and consent of the Senate, make the treaty is simply an executory contract, pledging an unconstitutional treaty, and should this be the fact, the faith of the Government to do certain things in the treaty would furnish no rule for the guidance of futuro, the doing of which requires legislative action, a court. The judiciary is as much bound by the Conthen it is not a law of the land for the purposes of ju-stitution when called upon to give effect to treaties as dicial administration until the requisite legislation laws, as it is when giving effect to the laws of Congress. shall have been furnished. If, for example, the stipu- The Constitution itself is in all cases the paramount lation be for the payment of money by the United authority, and no law in conflict with the Constitution States, then it is not operative as a law until Congress can bind any court, whether State or National. This legislatively appropriates the money.

doctrine was fully considered in the case of Marbury In Foster v. Neilson, supra, it was held that the v. Madison, 1 Cranch, 137, and has been repeatedly afeighth article of the treaty of 1818, between Spain and firmed by the Supreme Court of the United States in the United States was simply an executory contract, subsequent cases. not acting directly upon the subject-matter referred to, Iu Doe v. Braden, 16 How. 635, Chief Justice Taney, but pledging action on the part of Congress, and, after referring to treaties as supreme laws, proceeded hence, that until this action should be had, the court to say: "The treaty is, therefore, a law made by the was “not at liberty to disregard the existing laws on proper authority, and courts of justice have no right the subject." The article, until such action, was not a to annul or disregard any of its provisions, unless they rule for courts; that is to say, it was not a law, because violate the Constitution of the United States.” This it was addressed to the legislative branch of the Gov- implies that a treaty may be exposed to this objection, ernment, and needed legislation to make it operative and indirectly asserts that such a treaty should not as a law.

by courts be regarded as a law. So, also, in The Chero9. Treaties of the United States abrogate all provis-kee Tobacco Case, 11 Wall. 616, Mr. Justice Swayne ions in State constitutions or laws in conflict therewith. said: “It need hardly be said that a treaty cannot To secure this result was the main, if not the sole, change the Constitution, or be held valid if it be in reason for making treaties a part of “the supreme violation of that instrument. This results from the law of the land." The great question before the court nature and fundamental principles of our Governin Ware y. Hylton, 3 Dall. 199, was whether the treaty ment." of peace made with Great Britain in 1783, rendered in- Section 709 of the Revised Statutes of the United operative the law of Virginia enacted in 1777, confiscat- States provides that “a final judgment or decree in ing debts due from citizens of that State to British any suit in the highest court of a State, in which a desubjects, and discharging the former from any liability cision in the suit could be had, where is drawn in quesof payment to the latter. The treaty declared that tion the validity of a treaty,” of the United States, “creditors on either side should meet with no lawful " and the decision is against” its “ validity," " may be impediment to the recovery of the full value, in ster- re-examined and reversed or affirmed in the Supreme ling money, of all the bona fide debts heretofore con- Court upon a writ of error." This supposes that a State tracted." 8 U. S. Stat. at Large, 80. The court held court may decide against the validity of a treaty, as a that this language applied to the debts which had been rule of guidance in the case pending before it, and confiscated by the Legislature of Virginia; that the should it do so, then the Supreme Court of the United treaty of 1783 came under the provision of the Consti- States is authorized to reverse or affirm the decision. tution which declares treaties of the United States to The Constitution, in both courts, would be the supreme

« PreviousContinue »