the citizens of the States. The peace of the nation, and its good faith, and moral dignity indispensably require that all State laws should be subjected to their supremacy.

It

is notorious that treaty stipulations (especially those of the treaty of peace of 1783) were grossly disregarded by the States under the confederation. They were deemed by the States not as laws, but like requisitions of mere moral obligation and dependent upon the good-will of the States for their execution. Congress, indeed, remonstrated upon this construction as unfounded in principle and justice. But their voice was not heard.

4

"Power and right were separated; the argument was all on one side, but the power was on the other. It was probably to obviate this very difficulty that this clause was inserted in the Constitution; and it would redound to the immortal honor of its authors if it had done no more than to bring treaties within the sanctuary of Justice as laws of supreme obligation. . It is melancholy to reflect that conclusive as this view of the subject is in favor of the supremacy clause, it was assailed with great vehemence and zeal by the adversaries of the Constitution. The very circumstance that an objection was made demonstrated the utility, nay, the necessity of the clause, since it removed every pretence under which ingenuity could, by its miserable subterfuges, escape from the controlling power of the Constitution.

"To be fully sensible of the value of the whole clause, we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor. The new Congress would have been reduced to the same impotent condition with their predecesAs the Constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others."5

sors.

.

4 The italics are the author's. Justice Story follows this with a discussion of the question as to how far the treaty-making power

embraces commercial regulations; this subject will be referred to in the next chapter.

$267. Judge Cooley's "Constitutional Limitations; " 1873.-Forty years after Justice Story's Commentaries had appeared, Mr. Justice Cooley of Michigan issued the first edition of his "Treatise on Constitutional Limitations," which has since then run through numerous editions, and holds high rank as an authority, especially as to the constitutional limitations resting upon the legislative powers reserved to the States. He, also, recognized the absolute necessity of empowering the Central Government of the United States to make treaties in such manner that there could be no collision between State and National authorities, as would certainly be the result if the adjustment of international matters were regulated by legislation in over forty-five different States. Nothing more hopeless can be imagined than the prospect of uniformity in such cases; he gives to treaties the highest authority allowed by almost any writer on the subject, either in text-books, or in decisions, and in the following paragraph, after quoting Article VI, at length, he shows how essential this power is to the protection of the National jurisdiction:

"It is essential to the protection of the national jurisdiction, and to prevent collision between State and national authority, that the final decision upon all questions arising in regard thereto should rest with the courts of the Union; and as such questions must frequently arise first in the State courts, provision is made by the Judiciary Act for removing to the Supreme Court of the United States the final judgment or decree in any suit, rendered in the highest court of law or equity of a State in which a decision could be had, in which is drawn in question the validity of a treaty, or statute of, or authority exercised under the United States, and the decision is against its validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity; or where any title, right, privilege, or immunity is claimed under the Constitution or any treaty or statute of or commission held or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set

up or claimed by either party under such Constitution, treaty, statute, commission or authority.""

1

In his "General Principles of Constitutional Law,” in which he also discusses the same subject, he says:

"A State law must yield to the supreme law, whether expressed in the Constitution of the United States or in any of its laws or treaties, so far as they come in collision, and whether it be a law in existence when the 'supreme law' was adopted, or enacted afterwards. The same is true of any provision in the constitution of any State which is found to be repugnant to the Constitution of the Union. And not only must the judges in every State, be bound by such supreme law, but so must the State itself, and every official in all its departments, and every citizen." 2

§ 268. Professor Pomeroy's Views. Another recent writer on the Constitution whose books have great weight in regard to its construction is Professor John Norton Pomeroy, whose "Introduction to the Constitutional Law of the United States" has already reached its ninth edition. He has, perhaps, more than any other writer, examined the subject of the treaty-making power, and his opinion, amply sustained by citations and extracts from other authorities, is unequivocally expressed as follows:

"Of the unlimited extent and transcendent importance of this (treaty-making) function thus confided to the Executive, either alone or in connection with the Senate, there can be no doubt.1 The Constitution places no express limits whatever upon the subjects, conditions, or contents of treaties. The President shall have power to make treaties. Now, the subjects to which these international compacts

§ 267.

1 A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union, by Thomas M. Cooley, LL. D., 6th edition, edited by Alexis C. Angell, Boston, 1890, pp. 18-19.

2 The General Principles of Constitutional Law in the United States of America, by Thomas M. Cooley, LL.D., 3d edition, by An

drew C. McLaughlin, A.M., LL.B., Boston, 1898, pp. 32-33. And see numerous authorities cited in notes thereto.

$ 268.

1 An Introduction to the Constitutional Law of the United States, by John Norton Pomeroy, 9th edition, revised and enlarged by Edmund H. Bennett, Boston and New York, 1886, § 670, p. 563.

may legitimately refer, are innumerable; the stipulations they may legitimately contain, are equally various, dependent on numberless changes of circumstances and relations. They may affect most vitally the interest of the nation as a whole, or the private and personal interests of individuals. The genus, treaties, includes all the usual kinds

and sorts." "

He expresses, however, an opinion that there are some implied limitations, as for instance the deprivation of Congress or the Judiciary, or the President, of any general powers which are granted by the Constitution, or any general change in the form of government of this country, but, with this exception, he does not consider that there are any limitations, and draws particular attention to the fact that all "treaties made by the authority of the United States are, equally with the Constitution and the laws of Congress passed under it, the supreme law of the land, and are binding upon, and superior to, state authority, whether that be expressed in state constitutions or state laws."

§ 269. Professor Pomeroy's broad views in regard to the Executive and foreign relations.-The most pertinent part of his conclusions upon this subject are found in the following remarks, "upon the scope and extent of this executive function of regulating foreign relations, and its influence and effect upon the general powers of the national government." Continuing he says: "There is here, as I believe, a mine of power which has been almost unworked, a mine rich in beneficent and most efficacious results. The President may, and must, manage the foreign relations; he may, in the manner prescribed, enter into treaties.

Where the act is legislative in its nature, the Congress may legislate; where the act is executive in its nature, the President may execute. But Congress may, in aid of this function of the President, pass laws which are addressed directly to the separate states, and which control the acts of their governments. The states have no international status; but they may, through their governments, do such acts as endanger the foreign relations of the nations; for these acts 2 Idem, § 674, p. 566. 3 Idem, § 675, p. 567.

the Government is responsible to the foreign power, and cannot evade the responsibility by asserting its want of control over the state. As the responsibility rests upon it, the power must belong to it. I am of opinion that the general government, under its function of controlling international relations, has the power by proper legislation, to prevent a state from repudiating its public debt, so far as that debt may be held by foreign citizens. I repeat, that in this Executive attribute, and in the capacity of Congress to pass laws in aid thereof, there is a source of power which has, as yet, been little resorted to, which has even been little thought of, but which is fruitful in most important and salutary results.

"When we reflect upon the great variety of treaties which may be made, and the compulsive character which the Constitution stamps upon them, the power of the general government, through their means to control state legislation is even more plainly apparent." 1

$270. Professor Pomeroy on State statutes and treaty stipulations.—Referring to the provisions in one of the treaties with France, in which the United States agreed to urge the various States to make laws permitting aliens to acquire real estate, which provisions he considers useless, he says: "If the treaty had expressly declared that French subjects may have full powers and rights to acquire and hold lands in any part of the United States, such compact would have overridden, in favor of Frenchmen, any state law forbidding aliens to acquire and hold real property. And such compact would have executed itself; it would have become part of the supreme law of the land; it would have required no congressional sanction; state courts would have been bound to give it force. In fact, the treaty of 1794, between Great Britain and the United States, contained a provision identical in principle with the one supposed; for the citizens of each country were allowed to hold and inherit lands held by them or their ancestors in the other country prior to the Revolution. It is, therefore, possible at the present day for a British subject to inherit lands § 269. stitutional Law, §§ 679, 681, pp. 569

1 Pomeroy's Introduction to Con--571.