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John Bull and Britannia," and the former publisher Upon the question of damages in actions for of “The Britannia” began to publish “ The True wrongfully mining and carrying away coal, to which Britannia;" Prowett v. Mortimer, 4 W. R. 419; 2 we have recently alluded, 21 Alb. L. J. 442, and Jur. (N. S.) 414. In Clement v. Maddick, 1 Giff. 98, ante, 2, we note the case of Illinois, etc., R. R. Co. v. the plaintiff's newspaper was called “Bell's Life in Ogle, 92 Ill. 353. The parties seem the same as in London," and the defendants' "The Penny Bell's the case in 82 Ill. 627; S. C., 25 Am. Rep. 342. In Life and Sporting News." The “ London Daily the latter case the element of innocent mistake in Journal” was too near to the “London Journal; ” the mining entered, and was held to make no differIngram v. Stif, 5 Jur. (N. S.) 947. So “The United In the present case, however, the court say, States Police Gazette " to "The National Police Ga- "it is moreover evident that this trespass was not zette," commonly known as “ The Police Gazette;" | the result of mere mistake, but was knowingly and Matsell v. Flanagan, 2 Abb. Pr. (N. S.) 459. So willfully done,” and the court hold, as in the former "The Bedfordshire Express and General Advertiser case, “the measure of damages to be the value of for the County" to " The Bedfordshire Express and the coal at the mouth of the pit, less the cost of General Advertiser for the Counties of Cambridge, carrying it there from the place where it was dug, Hertfordshire, Huntingdonshire, and Middlesex;" allowing the defendant nothing for digging.” But Chance v. Sheppard, V. C. M., July 30, 1869. In upon this theory, we would ask, why allow the Clowes v. Hogg, W. N., 1870, p. 268; 1871, p. 40, wrong-doer any thing for the carriage of the coal to the former proprietor of “London Society” began the mouth of the pit; or if that is allowed for, why to publish “English Society," and was restrained. must we not allow for the digging? The rule seems Again, in Mack v. Petter, 20 W. R. 964; L. R., 14 | inconsistent with its own theory. Eq. 431, the plaintiff's book was called “The Birthday Scripture Text Book," and the defendant's In Davis v. Dudley, 70 Me. 236, it was held that a “The Children's Birthday Text Book.” In Corns minor's deed of land not appearing upon its face to v. Griffiths, W. N., 1873, p. 93, the plaintiff's paper be prejudicial to him, is not void but voidable. To was called “ The Iron Trade Circular (Rylands'),” avoid it or ratify it, there must be some act on the and the defendant's “The Iron Trade Circular (Ed- part of the minor, after becoming of age, indicative ited by Samuel Griffiths).” In Metzler v. Wood, 26 of that intention. Mere delay on the part of the W. R. 577; L. R., 8 Ch. D. 606, the plaintiff's book minor is not sufficient evidence; but delay coupled was called "Henry's Royal Modern Tutor for the with the neglect of the minor, after becoming of Pianoforte,” and the defendant's “Henry's New and age, and having knowledge that the other party is Revised Edition of Jousse's Royal Standard Piano- | intending to, and does make valuable improvements, forte; ” and lastly, in Weldon v. Dicks, the tale was to make known his intention to avoid his deed in in each case styled “Trial and Triumph.” In all season to prevent such expenditure, is a sufficient the above cases the infringement was restrained. ratification. The court said: “As the deed is voidIn the following cases the remedy sought was re- able at the election of the minor, it follows that fused: In Spottiswoode v. Clarke, 2 Ph. 184, the ques- until that election is in some way made manifest tion was between - The Pictorial Almanack" and
there is neither a ratification nor an avoidance. “Old Moore's Pictorial Almanack;" in Snorden v. Without the one or the other the deed must still reNoah, Hopk. 347, between “The National Advo- | main in force but as a defeasible instrument. This cate” and “The New York National Advocate; ” manifestation must be shown by some positive and in Bell v. Locke, 8 Paige, 75, between “The Demo- clear act, intended for that purpose. What that cratic Republican New Era” and “The New Era;” | act shall be, or what is sufficient for that purpose, in Stephens v. De Couto, 30 N. Y. Sup. Ct. 343, be- must necessarily depend upon the circumstances of tween “La Cronica” and “El Cronista.” “Punch"
It therefore follows that mere delay was the property of the plaintiffs in Bradbury v. within the time allowed by the statute of limita
ton, 18 W. R. 33, and “Punch and Judy” of tions, uncoupled with any acts expressive of an inthe defendant; in Tallcot v. Moore, 13 N. Y. Sup. tent to confirm, would not be sufficient for that purCt. 106, the plaintiff's book was “The Little Red pose; and this may now be considered as well-setBook, New Series, 1875," and the defendant's “ Thetled law; though some decisions may be found Red and White Book ;” and The American Grocer holding that unless the deed is repudiated within a Publishing Association v. Grocer Publishing Company, reasonable time, ratification will result. 3 Wash. 51 How. Pr. 402, was a similar case. Ledger v. Ray, R. Prop. (3d ed.) 226; Boody v. McKenney, 23 Me. Ct. of App., May 3, 1877, was a somewhat peculiar 52344; Jackson v. Carpenter, 11 Johns. 539; Tucker case, as the question was not confined to the two
v. Moreland, 10 Pet. 75–6. While mere acquiescence titles, “The Era” and “Touchstone,” or “The for any length of time within the statute of limitaNew Era,” but Touchstone was also the name of a tions is no oof of intention to ratify, when well-known writer in the plaintiff's paper. And coupled with acts or even omissions when duty reagain in Kelly v. Byles, 46 L. T. (N. S.) 623, the quires action, it may become not only pertinent, but plaintiff's compilation was called "The Post Office satisfactory proof of such intention.” “In this Directory of the West Riding of Yorkshire," and
case the land was sold late in the fall.
The grantor the defendant's, “The Post Office Bradford Direct- became of age in the spring following. The inferory." See, also, 21 Alb. L. J. 446.
ence is that nearly or quite all the improvements were made at a time when the duties and responsi- | supported by a staff stuck into the ground, and kept bilities of an adult rested upon the plaintiff. The up rain or shine. The umbrella was marked: “G. case further shows that his residence was such that Rows, Victoria Club, Leeds.” A card was exhibited he must have known the improvements the tenants on which were the words: We
all bets first were making, the purpose for which they were made, past the post." The defendant called out, offering and that they were made relying upon the title de- and making bets, and giving tickets for the money. rived from the deed now in question. Under such This umbrella was held to be a "place," and the circumstances, if the plaintiff intended to avoid his court shut it up. One of the judges conceived that deed, common honesty required him to make known a prize-ring, or a wagon with an awning, would not that intention in season to prevent so great an in- | be a “place," and conceived that the umbrella was, jury and would forbid his making profit by an omis- properly speaking, an open tent. In Killman v. sion to do so. This certainly is a case where there State, 2 Tex. Ct. App. 222; S. C., 28 Am. Rep. 432, is something 'to urge him as a duty toward others it was held that a canvas tent may be a
"disorderly to act speedily.' Surely he was required to act house.” within a reasonable time, and failing to do so, he It was held in Henderson v. State, 59 Ala. 89, that must now be considered as electing to abide by his an out-house in the bushes on the edge of a field, in deed. The tenants might fairly suppose that he so the corporate limits of a town, about forty yards intended, as they were under no obligation to as- from a public road, and near and in a view of a path sume that he would act in violation of that rule of used by school children and other persons, is a law which requires honesty in minors especially after “public place," within the meaning of the statute minority has ceased. While then mere delay has against gaming. So is a barn, 200 yards from a no effect of itself, under the circumstances of this tavern, where many persons are assembled for muscase, it became demonstrative proof of an intent to tering, and sixty or seventy yards from another barn confirm, and certainly as unreasonable in its length where the tavern keeper is selling spirits. Farmer and similar in effect as causing loss to the party v. Commonwealth, 8 Leigh, 741. So is a steamboat bound, as well as profit to the party whose duty it carrying passengers and freight. Coleman v. State, was to act, as if the minor had been the purchaser 13 Ala. 602. So is an infirmary. Flake v. State, 19 of the land in possession, instead of the seller. In id. 551. So is a shoemaker's shop into which many which case it is clear he would have been held as passed, although a few were excluded during the confirming the deed. Boody v. McKeen, supra, 1 gaming. Campbell v. State, 17 id. 369. And so is Am. Lead. Cas. 258.” To the same effect is Gillespie an old house formerly used as a jail, on a public v. Bailey, 12 W. Va. 70; S. C., 29 Am. Rep. 445, sqnare and open to all, and occasionally used by the where there is a learned examination of the authori- guards of the new jail. Walker v. Commonwealth, 2 ties. See, also, note, 25 Am. Rep. 30.
Va. Cas. 515. A bed-room kept locked so that none can enter but by permission is a public place if ac
cessible to all, by night and day, who wish to in“PUBLIC PLACE” AND “PUBLIC HOUSE." dulge in gaming. Smith v. State, 52 Ala. 384.
The house of a keeper of a toll-bridge, consisting N some recent writing on Legal Definitions
of two rooms, in one of which is the office for the
transaction of the business of the bridge and where “public house.” More extended research has shown
persons were privileged to go to settle for tolls, is a us that there has been a good deal of discussion as public house. Arnold v. State, 29 Ala. 46. So is to what constitutes a “public place” or a "public the office of a justice of the peace. Burnett v. house,” within the statutes against gaming, affrays State, 30 id. 19. So where a house has but two and indecent exposure.
rooms, front and back, the front used as a magisThe English statute provides that “no house, trate's office, the back by partners of a dissolved office, room, or other place shall be opened, kept or firm for settling their accounts, with an opening beused for betting purposes.” In Eastwood v. Miller, tween, the back room is a public place. Id. 19. So L. R., 9 Q. B. 440; S. C., 9 Eng. (Moak) 429, the the back room of a country store, used as a bedappellant was the occupant of inclosed grounds, into room by one of the proprietors who is unmarried. which persons were admitted on payment of a fee, Huffman v. State, 30 Ala. 532. So of a room back and where a pigeon-shooting match for ten pounds of a broker's office, used and occupied in like mana !?, und a foot-race took place, persons betting Wilson v. State, 31 id. 371. So of a barber's on the main and the race. Counsel contended shop on the first story, the gaming being carried on that the grounds vre not a place,” because not in a room in the second story, accessible only by an covered by a roof. But us court did not take that exterior flight of stairs, and used by the barber in view. It might as well be sai? that the betters daguerrean experiments or a depository for were not persons unless they had their ::-*g on. A broken apparatus and chemicals. Moore v. State, case was cited where one was convicted, under his 30 id. 550. And so of a saddler's shop including statute, of keeping a gaming-table under a tree in a hack room situated and accessible in like manner. Hyde Park. In Boros v. Fenwick, L. R., 9 C. P. 339; Bentley 1. State, 32 id. 596. S. C., 9 Eng. (Moak) 374, one was indicted, under A privy, beivaging to a country school-house, is the same statute, of standing at a race-course, on a not, during vacation, a public place within the statstool, under an umbrella, seven or eight feet high, ' ute of gaming. McDaniel v. State, 35 Ala. 390.
Nor is a spot, surrounded with brush and briers, The sea-beach, visible from inhabited houses, is a 200 yards from where a public shooting-match is public place. Reg. v. Creusden, 2 Camp. 89. But going on. Com. v. Vandine, 6 Gratt. 689. Nor a an indictment charging indecent exposure “in a room in an out-house within a tavern inclosure, public place, to wit, a public road,” is bad, the pubformerly used in connection with the tavern, and a licity having reference to the number of persons room over which is still so used, but now used inde- rather than the locality. Moffit v. State, 43 Tex. pendently of the tavern by one who boards there. 346. Purcell v. Commonwealth, 14 id. 679. Nor a hollow A field in a forest and one mile from a highway 100 yards from a dram shop, not visible therefrom or any other public place is not a public place, alnor from a public road, and not customarily used though three persons are present, two of whom enfor gaming. Smith v. State, 23 Ala. 39; Bythwood | gage in an affray. Taylor v. State, 22 Ala. 15. (So v. State, 20 id. 47. Nor is a private house, to which held in respect to an indecent exposure in a barthe public are not permitted to go without invita- room, only one other person being present. Reg. v. tion, made a public place by the presence of eight Webb, 1 Den. C. C. 338. So under the like circumor ten invited persons. Coleman v. State, 20 id. 51. stances in a church-yard. Rex v. Watson, 2 Cox's C. Nor the office of an unmarried physician, where he C. 376.) But an inclosed lot, thirty yards from the eats and sleeps, the gaming being at night with street of a country town, but visible from the street, closed doors and a few invited friends. Clarke v.
is a public place within the common-law definition State, 12 id. 492. Nor a lawyer's office, occupied of an affray. Carvile v. State, 35 Ala. 392. "The and used in like manner, although during the session tumult could be heard and its exciting scenes witof court. Burdine v. State, 25 id. 60. Nor the nessed; and persons passing by would be within office of a married physician, adjoining a mer- reach of missiles thrown by the combatants," said chant's counting-room, and occupied at night by the court. another as a sleeping-room, who frequently held in- For the purpose of posting notices, houses of pubvited card parties there. Sherrod v. State, 25 id. lic worship, inns, and perhaps in some places, retail 78. Nor the back room used by a register in chan- shops, are public places. Scammon v. Scammon, 28 cery as a bed-room, adjoining and communicating N. H. 428; Tidd v. Smith, 3 id. 181. with his office, the house having a high fence in the In Homer v. State, 49 Md. 277, an indictment for rear, and the persons invited coming in by the back nuisance, it was held that the ordinary and accepted way. Boquemore v. State, 19 id. 528. Nor a store- meaning of the words “roads and streets,” is “ ways house in a village, late at night, after persons have for public travel,” unless qualified by the adjective ceased to come for goods, and the door is locked. “private” or some equivalent expression; and so Commonwealth v. Feazle, 8 Gratt. 585; Windsor v. an allegation of the maintenance of an offensive Com., 4 Leigh, 680. (But it is a “public house." trade “near unto divers roads and streets,” etc., Skinner v. State, 30 Ala. 524.) Nor is a room made was held to imply a public nuisance. a public place by the mere fact that it adjoins and communicates by an open door with another in
TREATIES AND THE FEDERAL CONVENwhich are persons who are not gaming. Lowrie
TION. v. State, 43 Tex. 602. A "room in a public courthouse" is not necessarily a “public place.” Shiha
By SAMUEL T. SPEAR, D.D. gan v. Steele, 9 id. 430.
A public omnibus is a "public place” within a statute against indecent exposure of the person.
THE Madison Papers contain a summary of the daily
proceedings of the Federal Convention, from the Reg. v. Holmes, 3 Carr. & K. 360. In Reg. v. Orch- commencement of its sessions on the 14th of May, ard, 3 Cox's C. C. 248, it was held that a urinal, 1787, to the signing of a draft of the Constitution on with boxes or divisions, for the convenience of the
the 17th of tho ensuing September, covering a period
of a little more than four months. One of the quespublic, situated in an open market, was not a public tious considered and determined by the Convention place within the same statute. But the contrary relates to the subject of treaties with foreign nations. was held in Queen v. Harris, L. R., 1 C. C. 282. The purpose of this article is to give a brief history of The court said: “It appears that the urinal was
this question in the Federal Convention as found in
the Madison papers. open to the public; that it was in Hyde Park, upon
1. One branch of the question relates to the denial a public foot-path, and that the entrance to it was
of the treaty-power to the several States, and in refrom that foot-path. I think it was just as much a gard to this point there does not seem to have been public place, with respect to that portion of the any division of opinion among the members of the public who use it, as a public highway. Every Convention. The Articles of Confederation, which place must be more or less screened from view on
preceded and were superseded by the Constitution,
while granting, with certain qualifications, to the some side, and the size of an inclosure does not
United States, “the sole and exclusive power” of necessarily affect the question whether it is a public entering into treaties and alliances,” declared that place or not.” Where one indecently exposed him- no State, without the consent of the United States self on the roof of a house in view from the back in Congress assembled," shall “enter into any conwindows of several other houses, and was seen by ference, agreement, alliance, or treaty with any king,
prince or State," and that “no two or more States seven persons from one of those windows, but could
shall enter into any treaty, confederation, or alliance not be seen from the highway, held, that this was in whatever between them, without the consent of the a public place. Reg. v. Thallman, 1 Leigh & C. 326. United States in Congress assembled, specifying ao
curately the purposes for which the same is to be en- the following words: But no treaty shall be binding tered into, and how long it shall continue." Article on the United States which is not ratified by law." VI.
This motion, after debate, was rejected, and tbe secThe plan of a Constitution, submitted to the Con- tion was then referred “to the committee of five" for vention, May 29th, by Mr. Charles Pinckney, provided, further consideration." . Pp. 1412-1415. in the eleventh article, that no State shall “enter On the 31st of August the Convention referred such into treaty, or alliance, or confederation," or enter parts of the Constitution as had been postponed, tointo compacts with other States or foreign powers.” gether with such parts of reports as had not been acted P. 744. The Constitution, as finally adopted, declares, upon, to a committee of eleven, consisting of a memin article 1, section 10, that “no State shall enter into ber from each State. P. 1478. This committee reany treaty, alliance, or confederation," and that no ported on the 4th of September, recommending that State shall, without the consent of Congress, “enter the grant of the treaty power should be as follows: into any agreement or compact with another State or “The President, by and with the advice and consent with a foreign power.”
of the Senate, shall have power to make treaties; but The first of these clauses expressly denies to the no treaty shall be made without the consent of twoStates all power to “enter into any treaty, alliance, or thirds of the members present." Pp. 1487, 1488. The confederation." This applies, as Mr. Justice Story | Convention on the 7th of September entered upon the thinks, “to treaties of a political character, such as consideration of this recommendation. Mr. Wilson treaties of alliance for purposes of peace and war, and moved to amend it by adding the words, “and House treaties of confederation in which the parties are of Representatives," immediately after the word leagued for mutual government, political co-operation ** Senate," saying: “As treaties are to have the operaand the exercise of political sovereignty, and treaties tion of laws, they ought to have the sanction of laws of cession of sovereignty, or conferring internal polit- also. The circumstance of secrecy in the business of ical jurisdiction, or external political dependence, or treaties formed the only objection; but this, so far as general commercial privileges.' Story's Const., $ 1403. it was inconsistent with obtaining the legislative sancThe other clause - the one relating to “any agreement | tion, was outweighed by the latter." Mr. Sherman or compact," eto., - is regarded by the same eminent thought that the power "could be safely trusted to jurist as applying to “mere private rights of sover- the Senate," and that "the necessity of secrecy in eignty, such as questions of boundary, interests in the case of treaties forbade a reference of them to land situate in the territory of each other, and other the whole Legislature." The motion of Mr. Wilson internal regulations for the mutual comfort and con- was rejected, and the recommendation of the commitvenience of States bordering on each other." Id. tee adopted. Pp. 1518, 1519. Such agreements or compacts the States are permitted A draft of the Constitution having been agreed to to make with each other or with a foreign power, with by the Convention, it was on the 9th of September rethe consent of Congress. The compact between Vir- ferred to a committee to revise its style and arrange ginia aud Kentucky is an example to this effect.
its several articles and sections in the proper order. Thus the treaty power, in the general sense of this This committee raported on the 12th of September, phrase, is entirely excluded from the States; and all proposing that the clause in respect to the lodgment agreemeuts or compacts of the States with each other of the treaty power should be a part of article 2, secor with a foreign State are excluded, except with the tion 2, and should read as follows: "He (the Presiconsent of Congress. This, as was inteuded, dispos-dent) shall have power, by and with the advice and sesses the States of one of the fundamental attributes consent of the Senate, to make treaties, provided twoof nationality. Holmes v. Jennison, 14 Pet. 540; and thirds of the Senators present concur.” P. 1555. In The People v. Curtis, 59 N. Y. 321.
this form the clause was adopted by the Convention, 2. A second branch of the treaty question relates to and, being subsequently ratified by the people, became the proper lodgment of the treaty power in the gen- a part of the fundamental law of the land. The Coneral government. Excluding the judiciary, the power vention proposed to commit to the President the genmight have been delegated to the President alone, or eral management of our relations with foreign nations, to him in conuection with one or both houses of Con- and, as a part of this idea, to vest in him the treatygress, or to either house of Congress exclusively, making power, subject, however, in its exercise to the or to both houses in conjunction. These were pos- advice and consent of the Senate given by a two-thirds sible methods of lodging this power. The matter majority of the members present. to be settled was to decide which, on the whole, would 3. The third branch of the treaty question, as conbe the wisest; and this, at different times during the sidered and determined by the Convention, relates to sessions of the Convention, involved considerable dis- the legal effect of treaties made under the authority of cussion.
the United States, and the manner of making them Mr. Pinckney's plan, proposed May 29th, provided operative as laws. The solution of this problera, as that "the Senate shall have tho sole and exclusive contained in Mr. Pinckney's plau of a Constitution power "to make treaties." P. 742. That of Alex- presented May 29th, was as follows: ander Hamilton, proposed June 18th, provided that the President shall “have, with the advice and appro
“All acis made by the Legislature of the United bation of the Senate, the power of making all treat
States pursuant to this Constitution, and all treaties
made under the authority of the United States, shall ies," and that the Senate shall have “the power of
be the supreme law of the laud; and all judges shall advising and approving all treaties.” P. 891. The be bound to consider them as such in their decisions." report of a draft of the Constitution by the Committee Pp. 741, 742. of Detail, made August 6th, declared that “the Senate of the United States shall have the power to make Mr. Patterson's solution, submitted June 15th, rear treaties.” P. 1234.
as follows: Mr. Madison, in the discussion of this part of the re- “Resolved. That all acts of the United States, made port, August 23d, observed “that the Senate represents by virtue and in pursuance of the powers hereby and the States alone, and that for this, as well as other by the Articles of Confederation vested in them, and all obvious reasons, it was proper that the President treaties made and ratified under the authority of the should be an agent in making treaties.” Gouverneur
United States, shall be the supreme law of the re
spective States, so far forth as those acts or treaties Morris "did not know that he should agree to refer
shall relate to the said States or their citizens; and the making of treaties to the Senate at all, but for the
that the judiciary of the several States shall be bound present would move" to amend the section by adding thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwith- they may involve, they operate, so long as they constanding; and that if any State, or any body of men tinue in force, as supreme laws within the territory of in any State, shall oppose or prevent the carrying into
the United States. They are, consequently, supreme execution such acts or treaties, the Federal executive shall be authorized to call forth the power of the con
laws in every State in the Union. federated States, or so much thereof as may be neces
The history of this part of the Constitution, as it sary, to enforce and compel an obedience to such acts, passed through its successive modifications in the or an observance of such treaties." P. 866.
Federal Convention until it reached its final form, Mr. Luther Martin, on the 17th of July, submitted a
shows that the framers thereof meant to assert the resolution on the same subject, which appears to have
supremacy of treaties, not in contrast with or as supebeen accepted by the Convention without debate,
rior to the Constitution or laws enacted by Congress, reading as follows:
but as supreme laws considered relatively to State
constitutions and State laws. They predicate su“ Resolved. That the legislativo acts of the United States made by virtue and in pursuance of the Arti
premacy of three things, namely, the Constitution cles of Union, and all treaties made and ratified under
itself, the laws of Congress, and the treaties of the the authority of the United States, shall be the su- United States, placing them all in the category of preme law of the respective States, so far as those acts supreme laws, without any formal discrimination beor treaties shall relate to the said States, or their citi- tween them as to rank. Having done this, they then zens and inhabitants; and that the judiciary of the
provide that "the judges in every State shall be several States shall be bound thereby in their decisions, any thing in the respective laws of the individual
bound” by all parts of this composite supreme law, States to the contrary notwithstanding." P. 1119.
any thing in the constitution or laws of any State to This resolution, with others, was, on the 26th of
the contrary notwithstanding.” This special refer
ence to State judges, taken in connection with the July, referred to the Committee of Detail, charged
oath they were to take to support the Constitution, with the duty of preparing and reporting the form of
and to the constitutions and laws of the States, clearly a Constitution, and on the 6th of August the commit
indicates that it was the exercise of State authority tee made their report, the eighth article of which read
which was meant to be placed in subordination to “the as follows:
supreme law,” including treaties therein. "The acts of the Legislature of the United States And in order to secure this end and make "the sumade in pursuance of this Constitution, and all treat
preme law" practically effective, it was further proies made under the authority of the United States,
vided, in article 3 of the Constitution, that "the judishall be the supreme law of the several States and of their citizens and inhabitants; and the judges in the
cial power of the United States shall extend to all several States shall be bound thereby in their decisions
cases in law and equity arising under this Constitution, any thing in the constitutions or laws of the several the laws of the United States, and treaties made or States to the contrary notwithstanding.” P. 1234. which shall be made under their authority." The inThis article was, on the motion of Mr. Rutledge,
terpretation, application, and enforcement of treaties, August 23d, amended so as to read as follows:
considered as supreme laws, were thus placed within
the scope of the judicial power of the United States. This Constitution, and the laws of the United
And still further, Congress, in article 1, section 8, of States made in pursuance thereof, and all the treaties made under the authority of the United States, shall
the Constitution, was authorized to make all laws be the supreme law of the several States and of their necessary and proper for carrying into execution the citizens and inhabitants; and the judges of the several “powers vested by this Constitution in the government States shall be bound thereby in their decisions, any of the United States, or in any department or officer thing in the constitutions or laws of the several States
thereof." The treaty power is vested in the President, to the contrary notwithstavding.” P. 1408.
in connection with the Senate; and the judicial power The article was again amended, August 25th, on the of the United States, extending to cases in law and motion of Mr. Madison, by adding after the words, equity arising under treaties, is “vested in one Supreme " all the treaties made," the words, “or which shall Court, and in such inferior courts as the Congress may be made," thus providing that tbe supremacy intended from time to time ordain and establish." The power to be asserted shall attach to all the treaties of the to enact laws to carry this executive and this judicial United States, whether made before or after the adop- | power into effect is given to Congress. This places in tion of the Constitution. P. 1430. The draft of the the hands of the general government all the necessary Constitution having been adopted and referred to the legal machinery for making treaties operative as suCommittee on Style, this committee, on the 12th of
preme laws. September, reported the article as section 2 of article There was a special reason in the antecedent history 6, in the following words:
of the United States, as well as in the complex charac“This Constitution, and the laws of the United
ter of our political system, which led the framers of States which shall be made in pursuance thereof, and
the Constitution to give to a treaty the attributes of all treaties made or which shall be made, under the law, and make it a part of “the supreme law of the authority of the United States, shall be the supreme land.” The Articles of Confederation, though bestowlaw of the land; and the judges in every State shall ing the treaty power on the United States in Congress be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding."
assembled, and denying it to the States, except with P. 1559.
the consent of Congress, nevertheless, contained no
provision for the enforcement of treaties, or to preThis is the precise language of the section as found vent their infraction by State authority. Congress in the Constitution when signed by the members of the could not raise a dollar by taxation to fulfill the stipuCouvention, and afterward ratified by the people; and lations of a treaty, and could not compel the States to hence it was the final disposition of the question relate | supply funds for this purpose. It had the treaty ing to the legal effect of treaties made “under the power without the adjuncts necessary to make it effectauthority of the United States.” Treaties made under ive. The consequence was that treaties made by Conthis authority are such as were made by the United gress were regarded by the States as mere compacts, States in Congress assembled, prior to the adoption of which they were at liberty to observe or not as they the Constitution, and such as have been made by the should see fit; and, as a matter of fact, they did see fit President, with the approval of the Senate, under the in several instances to disregard them. This was speauthority conferred by the Constitution. Whatever cially true in respect to the treaty of peace with Great these treaties may be, considered as compacts with Britain in 1783. other nations, and whatever international obligations Congress remonstrated, and even implored the States