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 revolution, 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 preserve."

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.

* Lecture VIII, p. 227, idem, continues:

"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.

joyed; 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, ex"Secondly. Of the power to de- isted when the Constitution was fine and punish piracies and felo- adopted, it became necessary to nies committed on the high seas, vary its terms in regard to treaties, and other offences against the law from those relative to the laws of of nations; and, the United States; the declaration "Thirdly. Of the power of regu- it contains in respect to the supremlating foreign commerce; includ-acy of the latter operating only ing a power to prohibit, after a in future, while in reference to the certain period, now elapsed, the former the terms are, 'All treaties importation of slaves. 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.

"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.

"1. The powers 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 preserve. Both powers were possessed by Congress under the Confederation, but not to the extent to which they are now en

"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

8264. George Ticknor Curtis' Constitutional History of the United States.-The Constitutional History of the Uni

under 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 it is committed to the President and Senate, in exclusion of the House of Representatives, and is executed through the instrumentality of agents delegated for the purpose. And although the President and Senate are thus invested with this high and exclusive control over all those subjects of negotiation with foreign powers, which, in their consequences, may affect important domestic interests, yet it would have been impossible to have defined a power of this nature, and, therefore, general terms only were used. These general expressions, however, ought strictly to be confined to their legitimate signification; and in order to ascertain whether the execution of the treatymaking power can be supported in any given case, those principles of the Constitution, from which the power proceeds, should carefully be applied to it. The power must, indeed, be construed in subordination to the Constitution; and how ever, in its operation, it may qualify, it cannot supersede or interfere with, any other of its fundamental provisions, nor can it ever be so interpreted as to destroy other powers granted by that instrument. A treaty to change the organization of the Government, or annihilate its sovereignty, or overturn its Republican form, or to deprive it of any of its constitutional powers, would be void: because it would defeat the will of the people, which it was designed to fulfill.

matters which are usually the subject of compact between independent nations. It is, in its nature, a contract, and not a Legislative act; and does not, according to general usage, effect of itself the objects intended to be accomplished by it, but requires to be carried into execution by some subsequent act of sovereign power by the contracting parties, especially in cases where it is meant to operate within the territories of either of them. With us, however, a different principle is established, in certain cases. It has been settled by the Supreme Court, that, inasmuch as the Constitution declares a treaty to be the law of the land, it is to be regarded in Courts of Justice as equivalent to an act of Legislature, whenever it operates of itself without requiring the aid of any legislative provision. But when the terms of any treaty stipulation import an executory contract, it addresses itself to the political, and not to the Judicial department for execution, and Congress must pass a law in execution of the compact, before it becomes a rule for the Courts. The Constitution does not expressly declare whether treaties are to be held superior to the Acts of Congress, or whether the laws are to be deemed coequal with, or superior to treaties; but the representation it holds forth to foreign powers, is that the President, by and with the advice and consent of the Senate, may bind the nation in all legitimate contracts; and if pre-existing laws, 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, commerce and navigation with b. 3, ch. 20, sec. 7; ibid. b. 4, ch. 2, | Great Britain, in 1794, gave rise secs. 11, 12; 1 Cranch, 103.) 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."

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.)

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 pass the laws necessary for carrying the treaty into effect. From that time the question remained undisturbed until the conclusion of a convention with Great Britain, in 1815, when the House of Representatives, after much debate, passed a bill specifically enacting, on a particular subject, the same "The conclusion of a treaty of provisions which were contained

"And in another case, it was held to be a clear principle of national law, that private rights might be surrendered by treaty to secure the public safety, but the Government would be bound to make compensation and indemnity to the individual whose rights had thus been sacrificed.