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of binding authority upon the Supreme Court with regard to the judicial construction of the Constitution, but as Marshall, C. J., said in Cohens v. Virginia, the "opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank, and the part two of its authors performed in framing the Constitution put it very much in their power to explain the views with which it was framed." (8). The reported proceedings of the convention which framed the Constitution, and of the several state conventions which ratified it, though frequently referred to in the discussions of questions of constitutional construction, are not of binding authority. The views expressed in the debates are merely the views of the individual speakers, and do not necessarily express the view of the subject which induced the federal convention to insert the particular provision in the Constitution as framed by them, or which led the convention of any one state to ratify the Constitution.49 The votes of the convention on the details of the Constitution are of no greater importance, for an affirmative vote approving a particular section of the Constitution, throws no light on the meaning of the words of the section; and a negative vote rejecting a proposed constitutional provision may with equal propriety be regarded as an expression of opinion to the effect that the proposed provision is unnecessary because adequately supplied by other provisions of the Constitution, or as a refusal to adopt the particular provision because in the opinion of the convention such a provision ought not to be inserted in the Constitution. It must be

48 6 Wheat. 418. See Sir Henry Maine's "Popular Government," p. 202, for references to foreign eulogies of the Federalist.

49 U. S. v. U. P. R., 91 U. S. 72, 79.

remembered that the Constitution derives its whole force and authority from its ratification by the people,50 and whenever it becomes necessary to determine the meaning of any clause in the Constitution, the real question for decision is, not what did the federal convention, or any member thereof, understand that clause to mean when that convention framed the Constitution, nor what did the members of any particular state convention understand that clause to mean when their convention ratified the Constitution, but what did that clause really mean as ratified by all the conventions, and that meaning can only be determined by the application of the established rules of judicial construction.51

The meaning of a statute is determined by the application of rules of construction, which are substantially the same as the rules of constitutional construction, and whose object is simply to determine the legislative intent, which is the natural and reasonable effect of the words used.52

Judgments of courts.

107. A judgment of a court is an application of a rule of law to the facts of a particular case, and its value as an authority is dependent upon the extent and finality of the jurisdiction of the court and upon an ascertainment of the facts as presented to the mind of the court and a deduction of the rule of law determining the decision on those facts.58 The opinion of any court or judge upon a

McCulloch v. Maryland, 4 Wheat. 316, 404.

The view as stated in the text was forcibly put by R. C. McMurtrie, Esq., in his "Observations on Mr. George Bancroft's Plea for the Constitution," p. 8 et seq. See also Maxwell v. Dow, 176 U. S. 581, 601.

52 Henderson v. N. Y., 92 U. S. 259, 260; Soon Hing v. Crowley, 113 id. 703, 710; Mugler v. Kansas, 123 id. 623, 661; Minnesota v. Barber, 136 id. 313, 320.

53 Knatchbull v. Hallett, 13 Ch. Div. 712; Ginesi v. Cooper, 14 id. 601; Ogden v. Saunders, 12 Wheat. 333.

question whose determination is not essential to the decision upon the facts of the cause is only obiter dictum and, although entitled to be received with great respect, it is not to be regarded as an authoritative precedent. The opinions of the judges are, therefore, of value only in so far as they ascertain the facts and deduce the rule whose application decides the cause. It would be well if dissenting opinions were not published, and if the fact of any dissent were not recorded, for any dissent necessarily weakens the force of the judgment as a precedent.

Treaties.

108. Treaties, when duly ratified, are of inferior authority to the Constitution,54 but they are superior in authority to state legislation.55 Where there is a repugnancy between a treaty and an act of Congress that which is of later date will prevail.56 Where a treaty declares the rights and privileges which the citizens or subjects of a foreign nation may enjoy in the United States it, in general, operates by its own force, and does not require the aid of any congressional enactment.57 While, as respects the rights and obligations of the contracting governments, a treaty is to be regarded as concluded and binding from the date of its signature,58 yet as respects the effects of the

54

Geofroy v. Riggs, 133 U. S. 258, 267; Thomas v. Gay, 169 id. 264, 271. U. S. v. Forty-three Gallons of Whiskey, 93 U. S. 188; Hauenstein v. Lynham, 100 id. 483; Butler v. B. & S. S. Co., 130 id. 527; G., C. & S. F. Ry. v. Hefley, 158 id. 98; Ohio v. Thomas, 173 id. 276; Boske v. Comingore, 177 id. 459; Easton v. Iowa, 188 id. 220.

66 U. S. v. Schooner Peggy, 1 Cr. 103; Foster v. Neilson, 2 Pet. 253, 314; The Cherokee Tobacco, 11 Wall. 616; Head Money Cases, 112 U. s. 580; Whitney v. Robertson, 124 id. 190; Botiller v. Dominguez, 130 id. 238; The Chinese Exclusion Case, ibid. 581; Horner v. U. S., 143 id. 570; Fong Yue Ting v. U. S., 149 id. 698; Wong Wing v. U. S., 163 id. 228; De Lima v. Bidwell, 182 id. 1. See also U. S. v. Lee Yen Tai, 185 id. 213.

57 Chirac v. Chirac, 2 Wheat. 259; Hughes v. Edwards, 9 id. 489, 496; Carneal v. Banks, 10 id. 181; Hauenstein v. Lynham, 100 U. S. 483. But see

Baldwin v. Franks, 120 U. S. 678.

"Dana's Wheaton's International Law, 36.

treaty on the rights of citizens of the United States vested before the ratification of the treaty but subsequently to its signature, the treaty is not to be considered as a part of the supreme law of the land until after its ratifications have been exchanged, for the Senate may in process of ratification amend the treaty,59 and it cannot be known, until it be ratified, what it may command or prohibit.0 Treaties do not, unless they be in express terms retroactive, affect rights vested, or liabilities incurred, before their ratification.61 The abrogation of a treaty operates only on future transactions, leaving unaffected previously executed transactions and vested property interests, but not personal and non-transferable rights.62

The law administered in the federal courts.

109. In criminal cases the jurisdiction of the courts of the United States is statutory and an indictment cannot be tried for a common-law offense. They, therefore, administer on the criminal side only that jurisdiction which is granted by the Constitution, treaties, and statutes of the United States.63

In civil causes, where the jurisdiction of the court depends on the character of the cause, as raising for decision a question of federal law, the only law that can be administered therein is that of the Constitution, statutes, and treaties of the United States. But in causes where the jurisdiction attaches only by reason of the diverse citizen

59

5 Art. II, Section 2, of the Constitution requires the advice and consent of the Senate, and the concurrence of two-thirds of the Senators present, to the making of any treaty by the President.

"U. S. v. Arredondo, 6 Pet. 691, 749; Haver v. Yaker, 9 Wall. 32. "Prevost v. Greneaux, 19 How. 1; Frederickson v. Louisiana, 23 id. 445. Chinese Exclusion Case, 130 U. S. 581.

U. S. v. Hudson, 7 Cr. 32; U. S. v. Coolidge, 1 Wheat. 415; Penna. v. W. & B. Bridge, 13 How. 519. The United States have no common law Wheaton v. Peters, 8 Pet. 591; Smith v. Alabama, 124 U. S. 465, 478; W. U. T. Co. v. C. P. Co., 181 U. S. 92, 101.

ship of the parties, the law administered ought to be that of the state within whose territory the court of the first instance sits, excepting, of course, in those causes in which the lex loci contractus differs from the lex fori, and the former law is applicable. The only reason that the framers of the Constitution could have had for opening the courts of the United States to one who litigates only in right of diverse citizenship is the possibility of bias or prejudice against him in the state court. This reason for the jurisdiction was recognized by the Supreme Court in an early case,64 but later cases adopt a broader view, which must now be regarded as the established judicial theory of the constitutional intent. If a citizen of one state has a cause of action against a citizen of another state, and he brings his action in the courts of that other state his right is to have an impartial trial and to have his cause decided by the application of the law of that state. That law can only be found in the constitution and statutes of the state, as construed by the state court of last resort, and in the principles of the common, or civil, law, as the case may be, as recognized by the judicial decisions of the state court of last resort. When that litigant goes into a court of the United States to enforce that cause of action, the change of forum should not change the law which must be applied to and must decide the cause. Each state is entitled as of right jus dare et jus dicere, to make the law and

*Polk's Lessee v. Wendell, 9 Cr. 87. Johnson, J., said: "The sole object for which jurisdiction of cases between citizens of different states is vested in the courts of the United States is to secure to all the administration of justice upon the same principles upon which it is administered between citizens of the same state. The Court, in a later and unanimous judgment, speaking by Bradley, J., said (Burgess v. Seligman, 107 U. S. 20, 34): "The very object of giving to the national courts jurisdiction to administer the laws of the states in controversies between citizens of different states was to institute independent tribunals which it might be supposed would be unaffected by local prejudices and sectional views.'' This broad statement is quoted with approval in the most recent case, G. S. F. H. Co. v. Jones, 193 U. S. 532, 544.