the effect of Article VI upon the State constitutions and legislation, he recognized the necessity of central action without any reference whatever to the States; in this respect he says: "The effect of a treaty on state constitutions and state laws cannot be questioned. Without considering whether it operates directly as a repeal of them, we are warranted in saying that an act done under a state law, in opposition to a treaty, cannot be set up as a legal bar to a proceeding founded on a treaty.

"The inability of the Confederation to enforce the treaties made by them was severely felt. Many state laws which had been passed, during, or shortly after the war of the revolu tion, were inconsistent with some of the articles of the treaty of peace with Great Britain, and that power, complaining of injuries sustained in consequence thereof, postponed the fulfillment of the treaty in some points on their part. The inadequacy of the powers of congress to enforce it were then sensibly felt, and a serious declaration that a treaty, in virtue of the confederation, was part of the law of the land and obligatory on the several legislatures, was transmitted to all the states, with an urgent recommendation that the states themselves would repeal all those acts and parts of acts that were repugnant to the treaty. In this respect the want of a judicial power was strongly perceived.

"After the adoption of the Constitution, its retrospective effect upon the opposing laws of a state, passed even before the treaty, was speedily and fully established by the Supreme Court of the United States.” 1

$263. Views of William A. Duer; 1833.-Another of the early commentators of the Constitution was William A. Duer who as early as 1833, published his first text book on the Constitution, which was afterwards followed by his Constitutional Jurisprudence in which he declared that "the powers $ 262.

1 A view of the Constitution of the United States, by William Rawle, Philadephia, 1825 and 1829, 1st edition p. 68; 2d edition, p. 74. § 263.

1 Outlines of the Constitutional Jurisprudence of the United States,

by William Alexander Duer, LL. D. New York, 1833.

2 A course of Lectures on the Constitutional Jurisprudence of the United States by William Alexander Duer, 2d edition, Boston, 1856.

to make treaties, and to send and receive 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 pre

serve." 3

The opening pages of his seventh Lecture, which are quoted at length in the notes show how thoroughly he had examined this point and how consistent it is with the nationality and sovereignty of the United States.1

3 Idem, p. 227.

joyed; for then the former power

Lecture VIII, p. 227, idem, con- was embarrassed by an exception, tinues:

"The powers vested in the General Government for regulating foreign intercourse, consist,

"First. Of the powers to make treaties, and to send and receive Ambassadors, and other public Ministers, and Consuls.

"Secondly. Of the power to define and punish piracies and felonies committed on the high seas, and other offences against the law of nations; and,

"Thirdly. Of the power of regulating foreign commerce; including a power to prohibit, after a certain period, now elapsed, the importation of slaves.

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 when the Constitution was adopted, 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 Constitu"1. The powers to make treaties, tion; and it has, accordingly, been and to send and receive Ambassa- | adjudged, by the Supreme Court, dors and other public Ministers, and that they effectually repeal so Consuls, are essential attributes of much of the State laws and Connational sovereignty, and of that stitutions as are repugnant to international equality which the them. interests of every sovereignty require it to preserve. Both powers were possessed by Congress under the Confederation, but not to the extent to which they are now en

"This class of powers forms an obvious and essential branch of Federal administration; for if the United States are one nation in any respect, they are most clearly so in respect to other nations.

"More general and extensive terms, also, are used in vesting the power with respect to treaties, than in conferring that relative to laws; and, while the latter is laid

§ 264. George Ticknor Curtis' Constitutional History of the United States.-The Constitutional History of the Uniunder several restrictions, there is a compact entered into with a are none imposed on the exercise foreign power, and extends to all of the former, notwithstanding matters which are usually the subit is committed to the President ject of compact between independand Senate, in exclusion of the ent nations. It is, in its nature, a House of Representatives, and is contract, and not a Legislative act; executed through the instrumen- and does not, according to general tality of agents delegated for the usage, effect of itself the objects purpose. And although the Presi- intended to be accomplished by it, dent and Senate are thus invested but requires to be carried into exewith this high and exclusive con- cution by some subsequent act of trol over all those subjects of nego- sovereign power by the contracting tiation with foreign powers, which, parties, especially in cases where it in their consequences, may affect is meant to operate within the terimportant domestic interests, yet ritories of either of them. With it would have been impossible to us, however, a different principle is have defined a power of this nature, established, in certain cases. It and, therefore, general terms only has been settled by the Supreme were used. These general expres- Court, that, inasmuch as the Consions, however, ought strictly to be stitution declares a treaty to be the confined to their legitimate signifi- law of the land, it is to be regarded cation; and in order to ascertain in Courts of Justice as equivalent whether the execution of the treaty- to an act of Legislature, whenever making power can be supported in it operates of itself without requirany given case, those principles of ing the aid of any legislative prothe Constitution, from which the vision. But when the terms of any power proceeds, should carefully treaty stipulation import an execube applied to it. The power must, tory contract, it addresses itself to indeed, be construed in subordina- the political, and not to the Judicial tion to the Constitution; and how department for execution, and Conever, in its operation, it may gress must pass a law in execution qualify, it cannot supersede or in- of the compact, before it becomes terfere with, any other of its funda- a rule for the Courts. The Constimental provisions, nor can it ever tution does not expressly declare be so interpreted as to destroy whether treaties are to be held suother powers granted by that perior to the Acts of Congress, or instrument. A treaty to change whether the laws are to be deemed the organization of the Govern- coequal with, or superior to treament, or annihilate its sovereignty, ties; but the representation it holds or overturn its Republican form, forth to foreign powers, is that the or to deprive it of any of its con- President, by and with the advice stitutional powers, would be void; and consent of the Senate, may because it would defeat the will of bind the nation in all legitimate the people, which it was designed contracts; and if pre-existing laws, to fulfill. contrary to a treaty, could only be "A treaty, in its general sense, abrogated by Congress, this repre

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 negotia tions 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. He states the reason for the adoption of Article VI, in clear and concise terms as follows:

Grotius' Law of War and Peace, 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.)

commerce and navigation with 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