Gambar halaman


was over.

payable when the principal is payable, but at the cate by telegram with the plaintiff's solicitors, and end of the year. I am inclined to think that in a

only wrote to them on the following day. It also note to run less than two years, the words specify- | appeared that the defendant's solicitor had a London ing the rate of interest to be paid annually must be office. The plaintiff did not now press for a comunderstood as naming only the rate to be paid for mittal, but simply that the respondents might be the yearly period, and not as requiring an install- | ordered to pay the costs of the motion. Jessel, M. ment to be paid when the first year was completed.” R., said he thought he might strain a point in favor Graves, J., concurring, referred to the fact that an- of the auctioneer, and not order him to pay the other note in suit between the same parties at about costs, in consequence of the observations of Lord the same time " was framed so as to provide in Justice James, in Ex parte Langley, L. R., 13 Ch. D. terms that the interest should not only be ten per 110. (See 20 Alb. L. J. 498.) It was no doubt the cent, but at that rate per annum. Hence that in- auctioneer's duty to have sent a telegram back to strument was shaped so as to contain a literal state- the plaintiff's solicitors, and so have inquired if the ment that the rate was by the year and not by a dif- injunction were really granted, but as he had his ferent period.” This fact, notwithstanding its positive affidavit (said by James, L. J., in the above importance upon the legal effect of the paper," "

Yis case to be sufficient to save him from the contempt) one which helps to show that word annually' was that he thought the telegram a forgery, there was added in the same note for the same purpose, and just sufficient to save him from the costs, more not to prescribe yearly payments."

especially as there were other persons to pay them.

As to the defendant's solicitor, the Master of the Wright v. West, 2 Lea. 78, is an interesting de

Rolls certainly thought he had acted with impru

dence. cision upon the rights of lunatics. It holds that a

He had an office in London, and he had a widow, who has been prevented by lunacy from dis- telegram between eleven and twelve stopping a sale senting from the provisions of her husband's will

to take place at two, and it was his plain duty, if within the statutory time, may afterward recover

he had any doubt as to the authenticity of the teleher rights as if she bad duly dissented. The case

gram, to have telegraphed to the plaintiff's solicitproceeds on the theory that the election must be

ors and asked them if it was genuine or not. There personally exercised, and as a necessary consequence, but he did nothing until the next day, when the sale

was ample time before the sale to have done this, if the widow is incapable of acting because of lunacy, she cannot make a valid dissent, nor can her

The next day he did write to the plaintcommittee. Kennedy v. Johnston, 65 Penn. St. 451;

iff's solicitors, with whom he evidently was acS. C., 3 Am. Rep. 650. In Smart v. Waterhouse, 10 quainted, and asked them whether the telegram was Yerg. 94, it was held that a widow, who had been genuine or not, and at once received the answer that

it was. prevented from making her election within the stat

The solicitor's duty had been as plain as posutory time by the fraudulent conduct of those insible, and he must certainly pay the costs of the moterested in the estate, might afterward assert her

tion. As to the defendant, she did not even swear

in her affidavit that she belived the telegram was a rights as if she had dissented in time. So, mere delay, and negligence of friends, will not prejudice forgery, she took the risk of allowing the sale to go the rights of one not in a mental condition to know

on, and she must clearly also be ordered to pay the

costs of the motion. The order for costs would be or assert them. Alston v. Boyd, 6 Humph. 504.

without prejudice to the question of damages that

the plaintiff might have sustained by reason of the In Tonkinson v. Cartledge, before the Master of

sale having been proceeded with. the Rolls on the 16th ult., a motion was made to commit the defendant, her solicitor, and an tioneer, who had sold certain effects which the

In Black et al. v. The National Insurance Co., 24 plaintiff alleged belonged to her, and which had

Lower Canada Jurist, 65, the question was whether been seized under a distress for rent. The plaintiff

the rights of a mortgagee, to whom a policy of inobtained an ex parte injunction against the defend

surance had been made payable, could be defeated ant on the 20 of July, restraining the sale under the by the subsequent acts of the mortgagor. One

Farrar had given the appellants a mortgage on his distress about to take place that day at two o'clock at Newcastle-under-Lyme. Notice of the injunction property and transferred to them a policy of insur

ance on the respondents' company, conditioned to was sent by telegram to the auctioneer and the defendant's former solicitor between eleven and twelve.

be void if a subsequent assurance were effected

without their consent. Later, Farrar did again inThe auctioneer, after consulting with the defendant

sure the property, and a fire occurring, respondents and her solicitor, continued the sale, and the motion was made in respect of this contempt. In answer

declined to pay appellants. Sir Antoine A. Darian, to the motion, it was alleged that the defendant,

C. J., pronounced the judgment of the Court of who was the aunt of the plaintiff, and her solicitor, Appeals, and gives a careful review of the Ameriand the auctioneer, all believed that no order had in

can authorities, together with a reference to the fact been made, and that the telegram was a forgery. appeal. This seems opposed to the present doctrine

French law on the point. The court maintained the It was also proved that the local agent of the plaint- in our State, Grosvenor v. Atlantic F. Ins. Co., 17 iff's solicitors knew nothing of the injunction. The N. Y. 391; and in Pennsylvania, State Mut. Insurdefendant's solicitor did not, however, communi- ance Co. v. Roberts, 31 Penn. St. 438.


LIABILITY OF WATER COMPANY TO CIT- contract, or create a privity between her and deIZEN FOR BREACH OF CONTRACT fendant. It is a rule of law, familiar to the proTO SUPPLY CITY.

fession, that a privity of contract must exist be

tween the parties to an action upon a contract. One VERY interesting and important question, unA.

whom the law regards as a stranger to the contract der the law of contract, has almost simultane- cannot maintain an action thereupon. The rule is ously arisen and been similarly adjudged in three of founded upon the plainest reasons. The contractthe States of the Union. The case may be substan- ing parties control all interests, and are entitled to tially stated as follows: A company, organized to all rights secured by the contract. If mere strangers supply the inhabitants of a city with water, con- may enforce the contract by actions, on the ground tracted with the municipal authorities to supply of benefits flowing therefrom to them, there would their hydrants, but failing to do so, the fire depart- be no certain limit to the number and character of ment were unable to extinguish a fire in the city. actions which would be brought thereon. ExcepHeld, that the company were not liable in damages tions to this rule exist, which must not be regarded to the owners of the property destroyed. This was as abrogating the rule itself. Thus, if one, under a held in Nickerson v. Bridgeport Hydraulic Co., 46 contract, received goods or property to which anConn. 24; January, 1878; in Davis v. Clinton Water other, not a party to the contract, is entitled, he Works, Iowa Supreme Court, June 15, 1880; and in may maintain an action therefor. So, the sole beneFoster v. Lookout Water Co., 3 Lea, 42, Tennessee ficiary of a contract may maintain an action to reSupreme Court, September, 1879. The first case cover property or money to which he is entitled was cited in the last two. The court in the Con- thereunder. In these cases the law implies a promnecticut case take the case out of any obligation ise on the part of the one holding the money or arising from implied duty, and discuss it solely on property to account therefor to the beneficiary. grounds of contract. On the point of duty the Other exceptions to the rule, resting upon similar court said: A corporation is organized to manu- principles, may exist. See National Bank v. Grand facture woolen goods and sell them in the market. | Lodge, 98 U. S. 123. The case before us is not an Does this alone create an obligation to manufacture exception to the rule we have stated. The city, in the goods, and supply them to A., whether he pays exercise of its lawful authority to protect the propany thing for them or not?Answering this in the erty of the people, may cause water to be supplied negative, on the other ground the court said: for extinguishing fires and for other objects de

“It will be observed that the plaintiffs complained manded by the wants of the people. In the exerthat the defendants did not supply with water the cise of this authority it contracts with defendant hydrants which had been supplied by the city and to supply the water demanded for these purposes. the Bridgeport Water Company under their con- The plaintiff received benefits from the water thus tract, to enable the city through its fire department supplied in common with all the people of the city. to perform a public duty which it owed to the These benefits she received just as she does other plaintiffs and others, to extinguish their fires. Had benefits from the municipal government, as the benthe plaintiffs' fire been extinguished it would have efits enjoyed on account of improved streets, peace been done by the fire department; for there is no and order enforced by police regulations, and the allegation in the count that the plaintiffs had hose like. It cannot be claimed that the agents or offithat might have been attached to the hydrants and cers of the city employed by the municipal governthe fire extinguished by their own efforts. Hence, ment to supply water, improve the streets, or mainwhatever benefit the plaintiffs could have derived tain good order, are liable to a citizen for loss or from the water would have come from the city damages sustained by reason of the failure to perthrough its fire department. The most that can be form their duties and obligations in this respect. said is, that the defendants were under obligation They are employed by the city and responsible alone to the city to supply the hydrants with water. The to the city. The people must trust to the municicity owed a public duty to the plaintiffs to extin-pal government to enforce the discharge of duties guish their fires. The hydrants were not supplied and obligations by the officers and agents of that with water, and so the city was unable to perform government. They cannot hold such officers and its duty. We think it is clear that there was no agents liable upon the contracts between them and contract relation between the defendants and the the city." plaintiffs, and consequently no duty which can be In the Tennessee case the court said: “If we the basis of a legal claim.”

place the right of recovery upon the negligent In the Iowa case the court said:

performance of a duty, the difficulty will be to con" The only question presented in the case is this nect any duty arising out of the stipulations of the one: Is the defendant liable to plaintiff upon the contract between the city and the company, and the contract embodied in the ordinance? The petition particular loss sued for. The stipulation is to furdoes not allege or show any privity of contract be- nish water. The company has not stipulated to extween plaintiff and defendant. The plaintiff is a tinguish fires. It is not averred that the plaintiff stranger, and the mere fact that she may find bene- had the means of using the water for the extinfits therefrom, by the protection of her property, guishment of the fire. Hence, to use substantially in common with all other persons whose property is the words of an eminent court, whatever benefit similarly situated, does not make her a party to the the plaintiff would have derived from the water would have come from the city through its fire de- which was to become the subject of an action at the partment. The most that can be said is that the suit of individuals, to create any right in individucompany was under obligation to the city to supply als with a power of enforcing that right by action; the fire plugs with water; that the city owed a pub- but that its scheme was, having laid down certain lic duty to the plaintiff to extinguish the fire; that duties, to provide guarantees for the due fulfillment the fire plugs were not supplied with water, and so of them, and where convenient, to give the penalthe city was unable to perform its duty. . We think ties, or some of them, to the persons injured, but it clear that there was no contract relation between where not convenient so to do, there simply to imthe plaintiff and the company, and consequently no pose public penalties, not by way of compensation, duty which can be the basis of a legal claim." but as a security to the public for the due perform

The court distinguish the case from that of a pub- ance of the duty. To split up the 43d section, and lic officer or public contractor. The city having to say that in those cases in which a penalty is to go been joined as a defendant, the court absolved it into the pocket of the individual injured there is from liability, instancing the parallel immunity in to be no right of action, but that where no penalty cases of misconduct of police officers, agents in a is given to the individual there is to be a right of public hospital, and members of a fire department, action, is to violate the ordinary rule of construcand in cases of neglect to provide fire apparatus, tion. There being here in a certain number of repair public cisterns, or keep particular hydrants cases a penalty which the plaintiff himself admits supplied. Citing Tainter v. Worester, 123 Mass. 311; excludes the right of action, the conclusion is irreS. C., 25 Am. Rep. 90; Lansing v. Toolan, 37 Mich. sistible that in the remaining cases also in the same 152; Wheeler v. Cincinnati, 19 Ohio St. 19; S. C., 2 section the Legislature intended to give no right of Am. Rep. 368.

action. These decisions find strong support in Atkinson v. “Now that would have been my opinion apart Newcastle & Gateshead Water Works Co., L. R., 2 Ex. from authority. Is there then any authority which Div. 241, the circumstances of which were very sim- compels me to depart from thạt opinion ? The only ilar, except that the defendant's charter imposed a case which was cited to us in support of the plaintpenalty for neglect. The court observed:

iff's contention was that of Couch v. Steel, 3 E. & ** That this creates a statutory duty no one can B. 402. There a seaman of a merchant ship sued to dispute, but the question is whether the creation of recover damages for injuries sustained by him by that duty gives a right of action for damages to an reason of the omission of the defendant, a shipindividual, who, like the plaintiff, can aver that he owner, to provide proper medicines for the ship had a house situate within the company's limits and company.

The declaration in that case was not near to one of their fire-plugs, that a fire broke out, framed upon any act of Parliament, but on the arguthat the pipes connected with the plug were not ment of the demurrer, one of the Merchant Shipping charged at the pressure required by the section, Acts was referred to as creating a duty in the shipand that in consequence his house was burnt down. owner to provide certain medicines for the benefit Now, a priori, it certainly appears a startling thing of the crew, and the case was put very much as if to say that a company undertaking to supply a town there had been a parliamentary obligation to prolike Newcastle with water, would not only be will vide a great coat or some specific chattel for each ing to be put under this parliamentary duty to sup- particular member of the ship's crew.

The same ply gratuitously, for the purpose of extinguishing act which created the duty to provide the medifire, an unlimited quantity of water at a certain cines imposed a penalty recoverable by a common pressure, and to be subjected to penalties for the informer for the omission to perform that duty; but non-performance of that duty, but would further be it was there held, that notwithstanding the imposiwilling in their contract with Parliament to subject tion of the penalty, an action lay at the suit of any themselves to the liability to actions by any number one of the crew suffering special damage from such of householders who might happen to have their omission. With regard to that case, and the effect houses burnt down in consequence; and it is, a of that particular act, I will say this, that if the priori, equally improbable that Parliament would matter were brought before this court for review I think it a necessary or reasonable bargain to make. should like to take time to consider whether, with In the one case the undertakers would know before reference to that particular act, that case was rightly hand what they had to meet as the consequence of decided. I will not go further than that, for it is their neglect, they would come under definite pen- unnecessary here to enter into that question, the act alties; on the other they would virtually become of Parliament under which the present action is gratuitous insurers of the safety from fire, so far as brought being of a widely different character, and water is capable of producing that safety, of all the one which is open to observations which would not houses within the district over which their powers apply to the Merchant Shipping Act, which was bewere to extend."

fore the court in Couch v. Steel. But I must venture, His lordship then examined the penalties in the with great respect to the learned judges who destatute, some of which were for the benefit of the cided that case, and particularly to Lord Campbell, public and others for the benefit of the water-rates to express grave doubts whether the authorities

payer, and continued: “ Apart, then, from author- cited by Lord Campbell justify the broad general ity, I should say, without hesitation, that it was no proposition that appears to have been there laid part of the scheme of this act to create any duty down — that wherever a statutory duty is created,



any person, who can show that he has sustained In regard to the matter involved in both of these injuries from the non-performance of that duty, propositions, Mr. Justico McLean, in Turner v. Amercan bring an action for damages against the person

ican Baptist Missionary Union, 5 McLean, 344, gives

the following opinion: on whom the duty is imposed. I cannot but think that that must, to a great extent, depend upon the

“A treaty under the Federal Constitution is declared

to be the supreme law of the land. This unquestionpurview of the particular statute, and the language ably applies to all treaties

where the treaty-making which they have there employed, and more especially

power, without the aid of Congress, can carry it into

effect. It is not, however, and cannot be the supreme when, as here, the act with which the court have to law of the land where the concurrence of Congress is deal is not an act of public or general policy, but is necessary to give it effect. Until this power is exerrather in the nature of a private legislative bargain the treaty is not perfect. It is not operative in the

cised, as where the appropriation of money is required, with a body of undertakers as to the manner in sense of the Constitution, as money cannot be approwhich they will keep up certain public works. The

priated by the treaty making power. This results

from the limitations of our government. The action case of Couch v. Steel therefore is no authority to of no department of the government can be regarded regulate our decision in the present case. I am of as a law until it shall have all the sanctions required

by the Constitution to make it such. As well might it opinion therefore that the declaration discloses no

be contended that an ordinary act of Congress, withcause of action, and that the judgment of the Court out the signature of the President, was a law as that a of Exchequer must be reversed.” Cockburn, C. J.,

treaty which engages to pay a sum of money is in itself

a law. And in such a case the representatives of the and Brett, L. J., concurred.

people and the States exercise their own judgment in It seems to us that Couch v. Steel is distinguishable granting or withholding the money. They act upon on the ground that there the obligation was a generality of the treaty making power. It cannot bind or one, touching all the inhabitants of the realm, who control the legislative action in this respect, and every should choose to “go down to the sea in ships,'

foreign government may be presumed to know that so

far as the treaty stipulates to pay money the legislative and not restricted to particular persons, or the resi- sanction is required." dents of a particular place.

This supposes that some treaties may require the

legislative action of Congress for their execution. CONGRESS AND THE TREATY POWER.

Such treaties, according to Mr. Justice McLean, are

“not perfect," and not supreme laws, and “not opeBY SAMUEL T. SPEAR, D. D.

rative in the sense of the Constitution," until the

requisite legislation shall be had; and, as to the quesYHANCELLOR KENT, referring to a treaty of

tion of such legislation, the two houses of Congress are peace made by the President and Senate, says:

to exercise their own judgment, and act upon their

own responsibility, and not upon that “of the treaty “If the treaty requires the payment of money to

making power." This right of Congress every governcarry it into effect, aud the money cannot be raised but by an act of the Legislature, the treaty is morally

ment, in making a treaty with the United States, may obligatory upon the Legislature to pass the law, and to be presumed to know. refuse it would be a breach of the public faith. The Chief Justice Marshall, in stating the opinion of the department of the government that is intrusted by the court in Foster v. Neilson, 2 Pet. 253, said: Constitution with the treaty-making power is competent to bind the national faith in its discretion. *

A treaty is, in its nature, a contract between two All treaties made by that power become of absolute

nations, not a legislative act. It does not generally efficacy, because they are the supreme law of the

effect of itself the object to be accomplished, especially land." Kent's Com. (3d ed.), vol. 1, pp. 165, 166.

so far as its operation is infra-territorial, but is carried

into execution by the sovereign power of the respectThe same eminent jurist, in his lecture “On the ive parties to the instrument. In the United States a President," further says:

different principle is established. Our Constitution If a treaty be the law of the land, it is as much

declares a treaty to be the law of the land. It is, conobligatory upon Congress as upon any other branch of

sequently, to be regarded in courts of justice as equiv. the government, or upon the people at large, so long as

alent to an act of the Legislature, whenever it operates it continues in force and uurepealed. The House of

of itself without the aid of any legislativo provision. Representatives are not above the law, and they have

But when the terms of the stipulation import a conno dispensing power. They have a right to make and

tract, when either of the parties engages to perform a repeal laws, provided the Senate and President con

particular act, the treaty addresses itself to the pulitcur; but, without such concurrence, a law in the shape

ical, not to the judicial department; and the Legisla

ture must execute the coutract before it can become a of a treaty is as binding upon them as if it were in the

rule for the court." shape of an act of Congress, or of an article of the Covstitution, or of a contract made by authority of This opinion was subsequently referred to and reaflaw.” Id., p. 286.

firmed in United States v.Arredondo, 6 Pet.691, and again The substance of the doctrine contained in these ex- reaffirmed in United States v. Perecheman, 7 Pet. 51. tracts may be stated in the two following propositions: Some treaties, according to this opinion, require no leg(1) That every treaty made by the President of the islation for their execution; and when this is the fact a United States, with the consent and approval of the treaty is equivalent to an act of Congress, being a part Senate, is, ipso facto, a supreme law of the land. of the supreme law of the land, and, of course, a rule (2) That if any legislative action on the part of Con- to guide the action of a court. Other treaties require gress, including the action of the House of Representa- legislation for their execution, because their terms tives, be necessary for the execution of such a treaty, import contracts to be fulfilled in futuro; and treaties or any part of it, then it is the duty of Congress to of this character must be legislatively executed before supply this legislation, and thus provide for carrying they become operative as laws or a guide for courts. the treaty into effect, accepting the decision of the Whether a treaty belongs to one or the other of these treaty power as obligatory and conclusive on this classes is to be determined by examining its terms. In point, and, of course, exercising no discretion as to the the one case it is a law of itself as soon as duly made, expediency or inexpediency of the legislation. On this and in the other it “addresses itself” to the legislative ground the Chancellor condemns the resolution passed and not to the judicial department of the government, by the House of Representatives in 1796, when the Jay and must await its affirmative action before it can betreaty with Great Britain was under consideration. come the rule of a court.

In The Matter of Metzger, 1 Barb. 248, Judge Edmonds power to Congress, including the House of Representremarked: “This case involves the question whether atives, and making its action essential to such legislathe President of the United States has authority, by tion. The President and the Senate cannot legislavirtue of mere treaty stipulations, and without an tively execute the treaty which they have the power to express enactment of the National Legislature, to make, but which cannot be executed without legisladeliver up to a foreign power and virtually banish from tion. The action of the House of Representatives, as the country an inhabitant of one of the sovereign one branch of Congress, here becomes iudispensable. States of our confederacy.” He answered this question The Constitution itself establishes this necessity. in the negative, holding that “a treaty containing Senator Macon, of North Carolina, in the debate in provisions to be executed in futuro is in the nature of the Senate on the treaty making power, in 1816, rea contract, and does not become a rule for the courts marked: “Every government, treating with another, until legislative action shall be had on the subject," is supposed to understand the treaty making power of and that "the treaty with France of 1843, providing the government with which it treats, no matter where for the surrender of fugitives from justice, canuot be lodged, whether in the Executive alone or in the executed by the President of the United States with- Executive and Legislature jointly.” Benton's Abridg., out an act of Congress." Judge Edmonds here repeats vol. 5, p. 456. So, also, Senator Campbell, of Tennesthe opinion stated by Chief Justice Marshall, and see, in the same debate, said: “At the time the treaty applies it to the extradition treaty of 1843 with France. is formed, the nature of the governments, parties to it, This decision, rendered in 1847, was followed in 1848 by is known; and the confidence reposed in the fulfillan act of Congress, entitled “An act for giving effect ment of its stipulations must depend on the reliance to certain treaty stipulations between this and foreign placed in the national faith which is pledged by it. goveruments for the apprehension and delivering up Each party agrees to it with a distinct understanding of certain offenders," 9U. S. Stat. at Large, 302. that its full execution depends on the concurrence of

The doctrine of Chancellor Kent that a treaty is ipso the proper departments in each government in adoptfacto a law of the land, aud, because it is such, of ing the requisite legal provisions for carrying its stipu"absolute efficacy" to bind the will of Congress to lations into effect and knowing at the same time that legislate for its execution, provided such legislation be if oue party fails to execute its provisions the other necessary, is not sustained, but rather reversed and is no longer bound thereby.” Id., p. 458. “He who contradicted by those judicial authorities. Mr. Jus- contracts with another," says Ulpian, “knows or tice McLean says that if the treaty needs legislation it ought to know his condition." If so, then every is not a law, and “not operative in the sense of the government, in making a treaty with the United Constitution" until the legislation shall be furnished. States, may be presumed to know that although the Chief Justice Marshall says that upon this supposition President and the Senate have power to make a the treaty is not a rule for courts until the Legislature treaty, they are without power to enact any laws for executes the contract. Judge Edmonds sustains the its execution. The Constitution itself is a distinct same doctrine. Such a treaty being simply a contract, notification of this fact to the whole world. and not a law, "addresses itself” to Congress, and as It is true that the treaty power, in the terms of the to the question whether Congress shall furnish the grant, is general, withont any restriction in these necessary legislation for its execution, the two houses, terms as to the subjects upon wbich it may be exeraccording to Mr. Justico McLean, have the right to cised, and also true that a treaty, duly made and selfjudge upon their own responsibility.

executing in the sense of requiring no legislation to This, in the case supposed, undermines the very carry it into effect, is, ipso facto, a supreme law of the foundation from which Chancellor Kent reasoned. He land. But it does not follow that the treaty power is assumed that “all treaties" made by the President an unlimited power, or that when a treaty needs legisand Senate are “ of absolute efficacy,” as supreme laws lation to make it “perfect," it can so bind the action of the land, and as binding upon the will of Congress of both houses of Congress as to exclude all discretion as the Constitution itself. But, according to these on their part, and leave nothing for them to do but authorities, treaties that require legislation are not simply register the decree of the treaty power, without laws at all until the proper legislation is bad, and, of any inquiry into its expediency or inexpediency. The course, they do not bind as laws before they possess treaty power surely canuot subvert the Constitution this character. They are simply contracts, made by itself. It cannot repeal its fundamental principles in the treaty power, but requiring the action of another respect to the judicial power of the United States, department of the government to give them the char- either as to the courts in which tbis power sball be acter of laws.

vested or as to the cases and controversies to which it Mr. Wheaton, having stated the general principle shall extend. It cannot change the State governments that a treaty duly ratified is obligatory upon the con- or alter the boundaries of the States, or dislodge them tracting parties, "independently of the auxiliary legise from their position as members of the Union, or from lative measures which may be necessary on the part of the exercise of their rights as such. Mr. Justice Story, either in order to carry it into complete effect," pro- in referring to this power, says:ceeds to say:

“But though the power is thus general and unre"Where, indeed, such auxiliary legislation becomes

stricted, it is not to be so construed as to destroy the necessary in consequence of some limitation upon the

fundamental laws of the State. A power given by the treaty making power expressed in the fundamental

Coustitution cannot be so construed as to authorize laws of the State, or necessarily implied from the dis- the destruction of other powers given in the same in. tribution of its constitutional powers — such, for ex

strument. It must be construed, therefore, in suborample, as a prohibition of alieuating the National dination to it, and cannot supersede or interfere with domain - then the treaty may be considered as imper- any other of its fundamental provisions. Each is fect in its obligation until the national assent has been equally obligatory and of paramount authority within given in the forms required by the municipal Consti- its scope, and no one embraces the right to annihilate tution." Lawrence's Wheaton, p. 457.

Story's Const., $ 1508. This is a very important qualification, especially in The same Constitution that grants the treaty power its application to treaties made by the United States. to the President and the Senate also provides for a ConThe Constitution lodges the treaty making power in gress of the United States, composed of a Senate and the President and the Senate; but it does not lodge in House of Representatives, and declares in general them the power to enact the laws which may be neces- terms, that “all legislative powers herein granted shall sary to carry a treaty into execution. It gives this be vested in" this Congress. It enumerates in positive

any other."

« SebelumnyaLanjutkan »