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strued. We are now asked to go further, and hold interest in the realty of his wife, on the wife by atthat the section applies where the defendant has taching her realty, and on both by attaching the done nothing but simply remain passive when he wife's share of an intestate estate in the hands of ought to have been more vigilant and active to an administrator. Pending the suit the husband guard against a possible danger. If the statute was was adjudged a bankrupt and subsequently died. intended to apply to such a case, the language used Held, that the wife being legally incapable in Rhode to express the intention was badly chosen; for cer- Island to make a promissory note, the action against tainly an injury resulting from a mere omission to her could not be maintained. The court said: “As act would not ordinarily be described as an injury a general rule the validity of a contract is to be deinflicted by a wrongful act. We will not say, how- termined by the law of the place of contract. Story's ever, that it is impossible so to construe the section, Confl
. of Laws, &$ 242, 280; Whart. Confi. of Laws, nor indeed that we should not so construe it if it $$ 401, 419; Andrews v. Pond, 13 Pet. 65. So with were the only section on the subject. It is not the the forms of execution and solemnization. Whart. only section. The same chapter contains another Confl. of Laws, $$ 401, 606, 676; see, also, Savigny section (3 16), applicable to common carriers and to and Felix, quoted by Lawrence, Commentaires, the proprietors of railroads and steamboats, which tome iii, 265. But there is much contrariety of demakes them answerable for the life of any person cision and many exceptions made by the cases, the lost by reason of their carelessness or negligence, or courts generally trying to carry into effect the inby the carelessness or negligence of their agents or tention of the parties, and sometimes to protect servants. The two sections are to be construed to- their own citizens from imposition, especially in the gether, and being so construed, they lead to the case of married women and persons under age.” conclusion that common carriers and proprietors of “Every State has full control over property within railroads and steamboats were intended to be put on it and over the process of its courts. It has the a different footing from other persons, and to be right to regulate the transfer of real property, held to answer for loss of life when other persons stocks, and personal property within its limits; and would not be held. This being so, the question is, it will not permit a foreign law to be intruded or to what difference was intended; and the obvious an- interfere with its own laws on those subjects. See swer is, that common carriers and proprietors of Whart. Confl
. of Laws, $s 278, 297, 304, 334–5, 339, railroads and steamboats were intended to be sub- 353. And a contract valid by the laws of one State jected to a stricter liability than other persons, and
cannot be enforced in another, unless such a conto be held for their negligence or carelessness, even
tract made between its own citizens could be enthough it were merely passive, whereas other per- forced there, or in other words, it depends on the sons are to be held only when death ensues from in- lex fori. On any other doctrine we should have a jury inflicted by their wrongful acts.”
confusion of laws in the community, some persons statute is quite different, giving the right of action and acts being regulated by the local laws and some in case of “wrongful act, neglect, or default.” by the laws of foreign States; and we should be in
the situation of some countries in the Middle Ages, In Von Storch v. Winslow, 20, it is held that a sew- where different nationalities had been intermingled ing machine and a piano are “household furniture,' by immigration, or oftener by conquest, each retainexempt from attachment. The court remarked : ing its ancient laws.” “It may further illustrate “We have no doubt whatever that a sewing ma- the case to inquire whether she, remaining married, chine is a domestic implement of such a character could, either while resident abroad or on coming that it ought to be so regarded. There is more here, sue in this State. Evidently not except in the question in regard to the piano. It appears by cases cases where our law allows it. She can have no cited for the defendant, that in Vermont and Wiscon- greater right in this State than a married woman sin a piano is not deemed to be an article of house- residing here, and our law has provided no remedies, hold furniture. Dunlap v. Edgerton, 30 Vt. 224; nor mode of suing or being sued, for foreigners, Tanner v. Billings, 18 Wis. 163. We think, how- different from those applicable to our own citizens ever, that the question may be decided differently in similar cases.” This is distinguishable from Milaccording as the habits and usages of society differ liken v. Pratt, 125 Mass. 374; S. C., 28 Am. Rep. in different States. Moreover, the provision of the 241, and Bell v. Packard, 69 Me. 105; 8. C., 31 Am. statute referred to appears to be intended as a re- Rep. 251. In the former case, a wife domiciled in straint on both husband and wife, for the common Massachusetts made a contract in Maine, valid benefit of the family, and ought to be liberally con- there but invalid in Massachusetts when made, for strued.” A music teacher's piano is exempt as an coverture; but the contract subsequently becoming implement of business. Amend v. Murphy, 69 Ill. valid by law in Massachusetts, it was held that it 337.
might be enforced there. In the latter, a wife, in
Massachusetts, signed a note dated and written in In Hayden v. Stone, 91, A and B his wife made
Maine, and sent it there; held enforceable in Maine, and delivered their negotiable promissory note to
although void in Massachusetts. the plaintiff. The note was made in Massachusetts where the parties resided, and was valid there. In King v. Batterson, 101, the defendant wrote to Suit on this note was brought in Rhode Island, the A that if B contracted with him for certain goods, writ being served on the husband by attaching his to be paid for out of certain moneys, he would guar
antee the faithful performance of the contract. The consent written on the policy. The insurance clause goods were furnished not by A, but by the plaintiff. was written; the exempting clause was printed. Held, (1) that the offer was conditional, and did not The insured kept for sale both turpentine and bentake effect without notice of acceptance; (2) that the zine, without such consent. Held, that the policy plaintiff could not maintain an action on a transfer was avoided, although those articles might be part of the guaranty. The court said: “The instrument of the merchandise usually kept in such stores. or writing relied on is not an absolute undertaking The court said: “There is certainly no repugnancy to pay for certain goods if the buyer does not. It in agreeing to insure a general stock of merchanis an offer made to the seller to be bound if the pur-dise subject to the condition that gunpowder, petrochaser will comply with a certain condition. We leum, turpentine, and benzine, shall not form part think that being an offer, the defendant was enti- of such stock. Surely there is nothing so unusual tled to notice at any rate that the condition had in reservations and conditions in contracts as to been complied with, on which condition he was to make them the subjects of unusual construction or become liable. It is not an absolute promise to pay of extraordinary consideration. Surely, without for such advances as a person may make to another, repugnancy, one may contract for the sale of a where the only condition, if it can be called a con- plantation of one hundred acres of land reserving dition, is that the guarantee shall furnish the goods; thereout ten acres. Or suppose the contract in conbut there is another condition, that a certain prom- troversy to be for the sale of this general stock of ise was to be made by the purchaser to pay out of merchandise, excepting the articles above mencertain funds, and the guarantor had a right to tioned, could any doubt but that the exception was know that this promise was made in a manner to be good ?" available to him. See cases cited in Brandt on The court relied on Insurance Co. v. Kroegher, 83 Suretyship, $$ 159, 161-3. There must always be Penn. St. 64; S. C., 24 Am. Rep. 147. But that an acceptance, but this may be express or implied. was not the case of an insurance of general merAnd if the guaranty be by letter for a future opera-chandise usually kept in a country store, but of a tion, especially of uncertain amount, then there "stock of merchandise contained in store." As should be distinct notice of acceptance. The guar- counsel argued, in the principal case: “These are antor should have an opportunity to know his lia- not words descriptive of a class of goods. It was bility and provide for it. "And unless the transac-argued that the word merchandise meant such as is tion is such that it of itself gives him all the knowl- usually kept in a country store, and here is where edge he needs at a proper time,' then he should have the case failed. They asked to have implied what distinct notice. 2 Pars. on Cont. *14. And the we have expressed." relations of the parties, nearness of residence, are In Citizens' Insurance Co. v. McLaughlin, 53 Penn. often mentioned as circumstances to be considered. St. 485, the insurance was of a patent leather manAnd see 1 Chit. on Cont. (11th ed.) 742, note; Whit- ufactory. The policy permitted five barrels of benney v. Groot, 24 Wend. 82, 84; 2 Am. Lead. Cas.zole in a detached shed, but classed oils among haz75." "Ordinarily, a guaranty is not negotiable. ardous and prohibited risks. The court said: “The It may indeed be made so, if such appears to be the company could not have expected” the business “ to intention of the guarantor. It may not be addressed be suspended, nor to be carried on in any other than to any particular person. It may be an offer ad- the customary modes.” “The words of the policy dressed to all the world, as in the case of a reward descriptive of the subject matter of the insurance, offered. But if addressed to a particular person, as are the buildings of their tannery and patent in this case, we think it cannot be transferred so as leather manufactory,' and it must be intended that to enable another to sue upon it in his own name. these words included whatever, not expressly exThere may be good reasons why the guarantor cepted, was necessary and essential in conducting should be willing to deal with one person and not such a business.' Citing the Harper case, infra. with another; and there may be equities, or other In Franklin Fire Insurance Co. v. Updegraff, 43 dealings, between the guarantor and the guarantee Penn. St. 350, the insurance was on merchandise which the former may desire to provide for, and such as is usually kept in country stores. Hardhas a right to provide for. Brandt on Suretyship, ware, china, glassware, looking-glasses, etc., were 8$ 96, 97; Taylor v. Wetmore, 10 Ohio, 490; Bleeker classed in the policy among hazardous risks, to be v. Hyde, 3 McLean, 279.” As to the latter holding, inserted in the policy, or the policy would be see note, 28 Am. Rep. 347.
avoided. Held, that they were covered, if usually
kept in country stores, and this was a question of INSURANCE ON STOCK OF GOODS --- PAR- fact. TICULAR EXCEPTION.
In Steinbach v. La Fayette Fire Insurance Co., 54
N. Y. 90, the court said, by Reynolds, C.: "The N Lancaster Fire Insurance Co. v. Lenheim, 89 | plaintiff was insured for one year against fire, on
his stock of fancy goods, toys, and other articles in “general merchandise of all kinds usually kept in his line of business, in his store in the city of Bala country retail store,” except as hereinafter pro- timore, in his occupancy as a German jobber and vided.” Immediately following this was an exemp- importer, and he was privileged to keep fire-cracktion from liability for loss where turpentine or ben- ers on sale. It was provided in the policy that if zine were deposited, stored, kept or used, without the premises should be used for the purpose of car
rying on therein any trade or occupation, or of the written description of the property covered by storing or keeping therein articles, goods or mer- the policy." chandise denominated hazardous or extra hazardous Johnson, C., said: “Under the condition in the or specially hazardous, in the second class of haz- policy, suspending its operation so long as the ards annexed to the policy, except as therein spe- premises should be used for the purpose of carrying cially provided for, or thereinafter agreed to by the on therein any trade or occupation, or for storing or defendant, in writing upon the policy, then so long keeping therein, any articles, goods or merchandise, as the same shall be so used the policy was to be of denominated hazardous or extra hazardous or speno effect. The policy of insurance was accepted by cially hazardous, in the second class of the classes the plaintiff with the condition last referred to, and of hazards annexed to the policy, except as therein the privilege to keep 'fire-crackers on sale' was specially provided for or thereafter agreed to by the specially written in the policy, and added ten cents corporation in writing upon the policy, it is the setmore of premium to the $100. 'Fire-works' are tled law of this State, that any such article is speclaimed as 'specially hazardous,' and added fifty cially provided for, if it, as matter of fact, enters cents or more per $100 to the rate of insurance, into and forms a part of the kind or line of busiand it is claimed, that to be covered by the insur- ness specified in the written part of the policy in ance, must have been specially written in the policy, the description of the risk assumed. The insurers which in this case was not done. The rule which being bound to know the nature and kind of artiprevails in the interpretation of contracts of insur-cles belonging to the business and occupations ance is or should be the same as in all other written against the risks of which they undertake to insure, contracts of whatever nature. The intent is to be the specification of the business is a sufficient speascertained and observed, and if it clearly appears cial provision for all the articles belonging to it unby the writing, the contract must have effect ac- der the condition in the policy, even though some cording to its terms. In this case, without evidence of those articles belong to the second class of hazaliunde, it would be difficult, if not impossible, to ards mentioned in the condition. Harper v. Albany say what articles in fact were intended to be insured. M. Ins. Co., 17 N. Y. 194; Harper v. N. Y. City The court cannot judicially take notice of the pre- Ins. Co., 22 id. 441.” cise commodities which make up a stock of fancy “In conclusion it is proper to advert to the degoods, toys, and other articles in that line of busi- cision in Steinbach v. Insurance Co., 13 Wall. 183, ness, nor can it be declared, as a legal proposition, in which a different construction was placed upon what precise things pertain to the occupancy of a similar ternis in another policy in favor of the plaintbuilding in the city of Baltimore as a 'German job-iff here. The New York cases do not seem to have ber and importer.' In the prosecution of his busi- been adverted to, nor the case itself much considness the plaintiff did keep 'fire-works,' and the loss ered. We should not be justified under these cirwas occasioned by their accidental ignition, and it cumstances, in abandoning a settled line of decision appears to have been absolutely necessary, in order in our own State in order to conform to it.” The to settle the dispute between the parties, to ascer- doctrine of this case is reiterated in Hall v. Insurtain whether the keeping of ‘fire-works' for sale ance Co. of North America, 58 N. Y. 292. was in the line of the plaintiff's business.' If not, The facts in Steinbach v. Insurance Co., above it is very clear they were not insured against, be- cited, were the same as in the New York case, cause they were not specially written in the policy,' and the decision was exactly the reverse. The court and the fact that the privilege to keep 'fire-crackers simply said: “It is not pretended that fire-works on sale' was specially written in the policy, affords are included under the name of fire-crackers. But a very strong argument in favor of the defendant the plaintiff contends that they are included in the that 'fire-works' were not insured against, for there description of other articles in his line of business.' was no special writing in regard to them, unless in- The answer to this is that the policy itself requires cluded in the written words in the line of the busi- that fire-works shall be specially written in it. ness of the plaintiff. I do not understand it was They are among the goods described as specially hazclaimed by the counsel for the defendant, on the ardous, and add 50 cents on the $100 to the orditrial, that the plaintiff was not at liberty to show nary rate of insurance. It is impossible to think that keeping 'fire-works' for sale was in the line of that they are described by the general terms used in the plaintiff's business. It was in fact shown, with the policy. The insurance was at the ordinary out objection, that he had always kept them as a rates. There can be no doubt that the evidence was part of his stock in trade, and had some on hand properly rejected.” No authorities were cited. Mr. when the insurance was effected. Evidence was Wood says this is in conflict with all the better class also given, on the part of the plaintiff, tending to of cases. Fire Ins., 370, note. show that similar dealers usually kept fire-works as In Whitmarsh v. Conway Fire Ins. Co., 16 Gray, a part of their stock in trade. Evidence on the 359, the insurance was on a stock in trade, conpart of the defendant was given tending to show sisting of the usual variety of a country store, exthe contrary, but it was not very conclusive. cept dry goods," with “permission to keep and sell If, therefore, as a matter of fact, the keeping of burning fluid and gunpowder," and provided that fire-works was in the line of the plaintiff's business, if certain enumerated articles, denominated hazardthe cases are quite too numerous and familiar to ous, extra hazardous, and risks prohibited, were need citation, that 'fire-works' were embraced in 'kept on the premises, the policy should be void, un
less they were specially, provided for. Held, that therefore, applicable to such instruments, which the keeping of some of such enumerated articles did gives to the written portion of them controlling not avoid the policy, they being such as are usually force, when there is any conflict or want of harkept in a country store, and that parol evidence was mony between it and the printed stipulations. Ang. admissible to prove that fact. The articles in ques- on Ins., &$ 14, 15.” " All such articles are just as tion were oil, friction matches, glass and earthen- clearly embraced in the policy as if each article thus
This followed Eliott v. Hamilton Mutual In- necessarily used was enumerated at length. Insursurance Co., 13 Gray, 139, where the insurance was ance companies must be deemed to be familiar with on “goods usually kept in a country store," and the the materials necessary to the carrying on any trade prohibition was of “cotton or woolen waste or or business, the stock in trade' of which they inrags.” Held, not to cover clean, white cotton rags, sure, and in issuing the policy they must be deemed if usually forming part of the stock of a country to have intended to include all such materials in the store. (The mere description of the premises as “a risk.” Citing the Harper case. provision and grocery store,” would not, however, In Archer v. Merchants and Manufacturers’ Ins. Co., outweigh an express prohibition. Whitmarsh v. 43 Mo. 434, the insurance was on a wagonmaker's Charter Oak Ins. Co., 2 Allen, 581.)
shop and materials, with a printed prohibition of In Niagara Fire Ins. Co. v. De Graff, 12 Mich. 124, benzine. The insured kept benzine in a paint shop the insurance was on a stock of “groceries,” with in the same building. The same doctrine was held an exception of alcoholic liquors, unless specially as in the last case, following the New York cases. provided or agreed to in writing on the policy. There is a dictum to the same effect in Leggett v. Held, that the liquors were covered if the jury Ins. Co., 10 Rich. 202. should find them to be groceries.” The court said: In Collins v. Farmville Ins. and Banking Co., 79 “By the use of a term including them they are “spe- N. C. 279; S. C., 28 Am. Rep. 322, the insurance cially provided for in writing on the policy.' In- was on a stock of “drugs and medicines," with a suring a class of goods includes what is usually prohibition of gunpowder, fire-works, saltpetre, etc. contained in it, whether extra hazardous or not." Held, that this did not extend to saltpetre kept as a Citing the New York Bryant and Harper cases. drug.
Viele v. Germania urance Co., 26 Iowa, 9, It therefore seems that the principal case is utterly the company consented to the use of the insured opposed to the decisions in all the other States, and premises as a manufactory of window shades, in that it is quite difficult to reconcile it with previous the conduct of which business benzine was necessa- decisions in the same State. We think the matter rily used. The policy prohibited the keeping of can be tested thus: suppose the written clause had benzine. But it was held that the policy was not insured all the usual articles of the stock of a counavoided. The court said: “The consent to the try store, specifically naming them all, and includmanufacture of the window shades implied a con- ing turpentine and benzine, and then in the printed sent to the use of benzine if it was necessary or portion had excepted and prohibited turpentine and commonly used in making those articles; otherwise benzine; would it be contended that the insurance a direct permission to continue the manufactory did not cover turpentine and benzine ? In the polwould be defeated by the prohibition in the policy.” icy in question turpentine and benzine were as effectThis is founded on the Harper and McLaughlin ually included in the written clause, if they form
part of the usual stock of a country store, as if they In Phænix Insurance Co. v. Taylor, 5 Minn. 492, had been specifically named. the insurance was “ on a stock of goods consisting of a general assortment of dry goods, groceries, crockery, boots and shoes, and such goods as are
THE LEGAL OPERATION OF TREATIES. usually kept in a general retail store." By a printed clause, the keeping of gunpowder was prohibited
BY SAMUEL T. SPEAR, D. D. unless especially consented to in writing on the policy. It was held that the written portion prevailed TREA
TREATIES of the United States are a part of "the over the printed, and that the written words would supreme law of the land," and, as such, binding authorize the keeping of gunpowder, it þeing proved upon the judges in the several States. All cases in law
and equity arising under these treaties come within that it was usually kept in general retail stores.
the cognizance of the National judiciary. Such cases, The court said: “In the interpretation of such in- arising in State courts, are among those that may by struments it is always to be kept in sight, that the writ of error be transferred to the Supreme Court of main portion of the policy, with all its conditions the United States for final settlement. Treaties aro and restrictions, is in a printed form, intended to
hence rules for guiding the action of courts, both State
and National, in determining rights growing out of or be sufficiently general to meet all cases, and prevent protected by them. In this respect they have the the necessity for drawing a policy for each risk character and authority of supreme municipal laws taken, which would very much retard and embarrass within the territory and among the people of the the transaction of such business, and that the writ. United States. The courts of this country, both State ten part, inserted by the parties, is more immedia and National, have on numerous occasions expounded
and applied them as laws. And thus a body of prinately expressive of their meaning and intention con
ciples, or legal propositions relating to treaties, has cerning the contract they are entering into, than the been gradually established by judicial authority, esprinted portion. There is a rule of construction, 'pecially by the highest tribunal of the land. A brief
statement of some of these principles will constitute Indian nations, and consequently admits their rank the object of this article.
among those powers who are capable of making treat1. Courts take judicial notice of treaties as public ies." As to the words “treaty and “uation," he laws, equal in rank to the laws of Congress. They are added: “We have applied them to Indians as we have a part or the whole of the law in every case to which applied them to other nations of the earth. They are they are applicable; and courts are presumed to know applied to all in the same sense.” what the law is, as thus established, and where it is to In Turner v. The American Baptist Missionary Union, be found. Treaties are preserved in the archives of 5 McLean, 344, Mr. Justice McLean said: “It is conthe government, and are, moreover, published by its tended that a treaty with Indian tribes has not the authority as rules for courts of justice, and that, too same dignity and effect as a treaty with a foreign and whether they are reminded of them or not in the independent nation. This distinction is not authorpleadings. It is their business to understand this ized by the Constitution. Since the commencement branch of the law. Mr. Justice Story, in Martin v. of the Government treaties have been made with the Hunter's Lessee, 1 Wheat. 304, referring to a treaty of Indians, and the treaty-making power has been exerthe United States, said that it "was not necessary to cised in making them. They are treaties within the have been stated, for it was the supreme law of the meaning of the Constitution, and as such are the suland, of which all courts must take notice."
preme law of the land." And, as to their rank, treaties stand on the same It is sadly true that the political department of the footing as the acts of Congress, and are to be so re- Government has in numerous instances most shamegarded by courts. Chief Justice Marshall, in The Uni- fully disregarded its treaties with the Indian tribes. ted States v. The Schooner Peggy, 1 Cranch, 103, said The National judiciary, however, has uniformly asthat "the Constitution of the United States declares a serted and maintained the sacredness of their obligatreaty to be the supreme law of the land. Of conse- tion and their authority as a part of “the supreme law quence, its obligation on the Courts of the United of the land." States must be admitted. * Where a treaty 3. The “cases in law and equity" arising under affects the rights of parties litigating in court, that treaties of the United States are such, and such only, treaty as much binds those rights, and is as much to as involve rights that directly grow out of or are dibe regarded by the court as an act of Congress." rectly protected by these treaties. On this point Chief
So, also, in Foster v. Neilson, 2 Pet. 253, the same Justice Marshall, in Owings v. Norwood's Lessee, 5 eminent jurist said that a treaty of the United States Cranch, 344, remarked: “The words of the Constituis “to be regarded in courts of justice as equivalent to tion are .cases arising under treaties.' Each treaty an act of the Legislature, whenever it operates of itself stipulates something respecting the citizens of the two without the aid of any legislative provision.” Whether nations, and gives them rights. Whenever a right therefore a law be established by the action of Con- grows out of or is protected by a treaty, it is sancgress, or by an exercise of the treaty power, is an im- tioned against all the laws and judicial decisions of the material circumstance in the judicial notice to be States; and whoever may have this right, it is to be taken of it, and in the rank to be assigned to it. protected. But if the person's title is not affected by
2. This judicial notice extends to treaties which pre- the treaty, if he claims nothing under a treaty, his ceded the adoption of the Constitution, as well as to title cannot be protected by that treaty." those made since its adoption, and also to treaties It was accordingly held that the twenty-fifth secwith the Indian tribes, as well as to those with foreign tion of the Judiciary Act of 1789, providing for a writ nations. The Constitution expressly specifies all freat- of error from the Supreme Court of the United States ies made, or which shall be made, under the authority to the highest State courts, in cases in which the validof the United States," as a part of “the supreme law ity of a treaty is drawn in question, etc., must be so of the land." The attribute of supremacy hence at- restrained as to make it conformable to the Constitutaches to them, whether made by the United States tion, and limit the judicial power to cases actually under the Articles of Confederation, or by the Presi- arising under treaties. The Coustitution itself fixes dent, with the approval of the Senate, under the au- this limit. If the right does not so arise, then it canthority of the Constitution. Mr. Justice Chase, in not make a case under a treaty. Henderson v. TenWare v. Hylton, 3 Dall. 199, referriug to a particular nessee, 10 How. 311; Gill v. Oliver's Executors, 11 id. article in the treaty of peace with Great Britain, made 529; and Verden v. Coleman, 1 Black, 472. in 1783, said that it is "retrospective and is to be con- 4. The construction of treaties, considered as laws sidered in the same light as if the Constitution had affecting rights as between individuals, is exclusively been established before the making of the treaty of a judicial function. Mr. Justice Grier, in Wilson v. 1783." Force was given to this treaty in its relation to Wall, 6 Wall. 83, observed: “Congress has no constitua law enacted by the Legislature of Virginia in 1777. tional power to settle the rights under treaties, except The priority of the treaty to the Constitution was held in cases purely political. The construction of them is not to impair its efficacy as a supreme law.
the peculiar province of the judiciary when a case So, also, treaties with the Indian tribes, whether shall arise between individuals.” Congress may legismade before or after the adoption of the Constitution, late for the execution of treaties by establishing courts have the same legal character as those made with for- and defining their jurisdiction; but the work of exeign nations, and are to be so regarded by courts of jus- pounding them and applying them as laws, and by tice. Chief Justice Marshall, in Worcester v. The State them determining the rights and obligations of indiof Georgia, 6 Pet. 515, declared certain laws of Georgia viduals interested in or affected by them as laws, beto be unconstitutional, and, among other reasons, as- longs to the courts of the land. In this respect there sigued the fact that "they were in direct hostility is no distinction between a treaty and a law enacted with treaties repeated in a succession of years, which by Congress. The province of the judiciary is the mark out the boundary that separates the Cherokee same in both cases. country from Georgia, guaranty to them all the land This function of construction is simply one of interwithin their boundary, solemnly pledge the faith of pretation, rigidly applied to all parts of the treaty. the United States to restrain their citizens from tres- Mr. Justice Story, in The Amiable Isabella, 6 Wheat. passing on it, and recognize the pre-existing power of 1, thus stated this doctrine: “We are to find out the
the nation to govern itself.” He also said: “The Con- intention of the parties by just rules of interpretation stitution, by declaring treaties already made, as well as applied to the subject-matter, and having found that to be made, to be the supreme law of the land, has our duty is to follow it as far as it goes, and to stop adopted and sanctioned the previous treaties with the where that stops, whatever may be the imperfections