"It is not, as you will perceive by examining Mr. Drouyn de L'Huys's dispatch to the Count de Sartiges, the application of the principle' to the particular case of M. Dillon which is to be disavowed, but the broad and general proposition that the Constitution is paramount in authority to any treaty or convention made by this Government. This principle, the President directs me to say, he cannot disavow, nor would it be candid in him to withhold an expression of his belief that if a case should arise presenting a direct conflict between the Constitution of the United States and a treaty made by authority thereof, and be brought before our highest tribunal for adjudication, the court would act upon the prin ciple that the Constitution was the paramount law."

Mr. Marcy, Sec. of State, to Mr. Mason, Jan. 18, 1855. MSS. Inst., France.

"A mere declaration by a congress of the representatives of a few powers would hardly be a proper instrument to send to the Senate for ratification. If it came from each Government in an authentic form the difficulty might perhaps in that way be got over. Then it would assume the character of a contract, and a treaty is nothing more. I do not see that the provisions of the declaration of the Paris conference, amended as this Government has proposed, could embarrass the Government of the Emperor of the French in the way you apprehend. The amend ment does not require France to go aside from the declaration; it goes a little beyond that declaration, but precisely in the same direction. The proposed treaty would contain all of the declaration. The engage. ment of the Imperial Government, with the other signatory powers, is not to negotiate on maritime rights without embracing the principles of the declaration, and that engagement would not in the slightest degree be departed from by the proposed treaty."

Mr. Marcy, Sec. of State, to Mr. Mason, Dec. 8, 1856. MSS. Inst., France.

"The estates of decedents are administered upon and settled in the United States under the laws of the State of which the decedent was a resident at the time of his death, and on this account, in the absence of any treaty regulations on the subject, interference in the disposition of such measures as may be prescribed by the laws of the particular State in such cases is not within the province of the Federal authorities."

Mr. Fish, Sec. of State, to Aristarchi Bey, May 19, 1874. MSS. Notes, Turkey. "Provisions of treaties and of statutes are made by the Constitution alike the supreme law of the land, and such law remains in full force and equally binding until repealed, abrogated, or set aside by competent authority.

"But it is difficult to deduce from the Constitution or elsewhere any standard by which to measure the relative weight to be accorded to law, when made by the negotiation of a treaty, over that made by enacting a statute.

"It has been held quite frequently that a subsequent treaty supersedes an act of Congress with which it is in conflict, as in Ware v. Hylton, 3 Dall., 199; Dean ex dem. Fisher v. Harnden, 1 Paine C. C., 55; and the converse that an act of Congress subsequent to a treaty must be enforced as the supreme law of the land, although in violation of the provisions of the treaty, has been held quite frequently. (Taylor v. Morton, 2 Curtis C. C., 454; Ropes v. Clinch, 8 Blatch, 304; The Clinton Bridge, 1 Woolworth, 150; The Cherokee Tobacco Cases, 11 Wall., 616.)

"You consider the decision in the Cherokee tobacco cases, however, obiter, because the treaty was an Indian treaty. Still the general question was distinctly passed on by the court, and no such question was there raised, and it has been decided on legal authority that a treaty with Indian tribes has the same dignity and effect as a treaty with a foreign power, being a treaty within the meaning of the Constitution, and the supreme law of the land. (Turner v. The American Baptist Missionary Union, 5 McL. C. C., 344.)

"Mr. Crittenden, while Attorney-General, held, in reference to the Florida claims, that an act of Congress is as much a supreme law of the land as a treaty. They are placed on the same footing, and no preference or superiority is given to the one over the other.' (5 Op. Att. Gen., 345.)

"In the general discussion of the question in the early cases, such as the United States v. The Schooner Peggy, 1 Cranch, 103, and Foster v. Neilson, 2 Pet., 253, a treaty is considered as equivalent, not superior, to an act of Congress.

"Judge Story, too, declares that treaties are subject to legislative enactment; and Judge Cooley, in his edition, and in a note to Judge Story's text, states the rule very broadly that an act of Congress may supersede a prior treaty.

"In a strict legal sense the difficulty lies in considering law, when enacted, regardless of the method of enactment, as other than binding in the highest degree.

"Of course, in speaking of the effect of subsequent legislation upon the provisions of a prior treaty, I refer only to the effect in the country where the legislation, is enacted, and upon the officers and people of that country.

"The foreign nation whose rights are invaded thereby has no less cause of complaint and no less right to decline to recognize any internal legislation which presumes to limit or curtail rights accorded by treaty."

Mr. Fish, Sec. of State, to Mr. Cushing, July 20, 1876. MSS. Inst., Spain. See supra, $ 9.

"The result of several late decisions in this country, as well as two at least of the opinions of the Attorneys-General, seem to lead to the

conclusion that an act of Congress of later date than a treaty, although in violation of its terms, must be obeyed as municipal law within the country, although in no manner binding on the foreign state, and although it in no manner affords a sufficient excuse for a violation of treaty provisions."

Mr. Fish, Sec. of State, to Mr. Cushing, Feb. 13, 1877; adopting same to same,
July 20, 1876. MSS. Inst., Spain. See supra, § 9.

"This is not a case where domestic laws override the provisions of a treaty, but where a treaty depends on domestic laws to give it effect; and those domestic laws, and the judgment interpreting them, must of necessity be the sole guidance of the Executive in its execution. Although a foreign treaty is, by the Constitution of the United States, in like manner with acts of Congress and the Constitution, the supreme law of the land, yet generally it does not execute itself, but requires some legislation, especially under a republican form of government, to carry it into effect. Chief-Justice Marshall clearly explains the rule as to the relation between treaty and statutory law, when he says that a treaty 'is to be regarded in courts of justice as equivalent to an act of the legislature whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial, department, and the legislature must execute the contract before it can become a rule for the court.""

Mr. F. W. Seward, Acting Sec. of State, to Mr. Mendez, June 28, 1879. MSS.
Notes, Spain.

A treaty, if within the treaty-making power, overrides State legislation.

Ware v. Hylton, 3 Dall., 199; Fisher v. Harnden, 1 Paine, 55; Hauenstein v.
Lynham, 100 U. S., 483.

The execution of a treaty between nations is to be demanded from, and, in general, superintended by, the executive of each nation, and, therefore, whatever the decision of the court may be relative to the rights of parties litigating before it, the claim upon the nation, if unsatisfied, may still be asserted. But yet where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights, and is as much to be regarded by the court as an act of Congress; and, although restoration may be an executive act, yet to condemn a vessel, the restoration of which is directed by a law of the land, would be a direct infraction of that law, and consequently improper.

U. S. v. The Peggy, 1 Cranch, 109.

The convention of 1800, between France and the United States, enabling the people of one country holding lands in the other to dispose

of the same by testament, and to inherit lands in the other, without being naturalized, has been held to dispense with limitations in a state statute on the alien inheritance.

Chirac v. Chirac, 2 Wheat., 259.

The expiration of the treaty does not divest rights acquired under it. Ibid; see infra, § 148a.

Since by the Constitution treaties made in pursuance thereof are to be the law of the land, they are to be regarded by the courts as equivalent to a legislative act when they operate directly upon a subject; but if they merely stipulate for future legislation by Congress, they address themselves to the political and not to the judicial department, and the latter must await the action of the former.

Foster v. Neilson, 2 Pet., 253.

That a treaty is no more the supreme law of the land than is an act of Congress is shown by the fact that an act of Congress vacates pro tanto a prior inconsistent treaty. Whenever, therefore, an act of Congress would be unconstitutional, as invading the reserved rights of the States, a treaty to the same effect would be unconstitutional.

See Prevost v. Greenaux, 19 How., 7; but see Mr. Sumner's letter to Mr. Fish, April 21, 1870; MSS. Dept. of State; cited in Mr. J. C. B. Davis, Notes, &c. But while such a treaty may be inoperative municipally, it may internationally subject the United States Government to foreign claims based on its non-execution.

Supra, § 9.

A treaty executed and ratified by the proper authorities of the Government becomes the supreme law of the land, and the courts can no more go behind it, for the purpose of annulling its effect and operation, than behind an act of Congress.

Fellows v. Blacksmith, 19 How., 366, 372.

Territory acquired by treaty or conquest is subject, so far as concerns titles to property and prior rights of status, to the same law as it was subjected to before the transfer.

U. S. v. Moreno, 1 Wall., 400. Supra, §§ 3 ff.

A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.

The Cherokee Tobacco, 11 Wall., 616. See Taylor v. Morton, 2 Curtis, 454; The
Clinton Bridge, 1 Woolworth, 150.

A treaty giving the subjects of a foreign state (Switzerland) the privilege of holding real estate in the United States is the supreme law of the land.

Hauenstein v. Lynham, 100 U. S., 483; aff. Chirac v. Chirac, 2 Wheat., 259; Carneal v. Banks, 10 Wheat., 181; Frederickson v. Louisiana, 23 How., 445; infra, § 163.

A treaty is primarily a compact between independent nations and depends for the enforcement of its provisions on the honor and the interest of the Governments which are parties to it. If these fail, its infraction becomes the subject of international reclamation and negotiation, which may lead to war to enforce them. With this judicial tribunals have nothing to do. But a treaty may also confer private rights on citizens or subjects of the contracting powers which are of a nature to be enforced in a court of justice, and which furnish, in cases otherwise cognizable in such courts, rules of decision. The Constitution of the United States makes the treaty, while in force, a part of the supreme law of the land in all courts where such rights are to be tried. In this respect, so far as the provisions of a treaty can become the subject of judicial cognizance in the courts of the country, they are subject to such acts as Congress may pass for their enforcement, modification, or repeal. Head Money Cases, 112 U. S., 580.

The stipulations in a treaty between the United States and a foreign nation are paramount to the provisions of the constitution of a particular State.

Gordon v. Kerr, 1 Wash. C. C., 322.

A treaty is the supreme law of the land in respect of such matters only as the treaty-making power, without the aid of Congress, can carry Where a treaty stipulates for the payment of money for which an appropriation is required, it is not operative in the sense of the Constitution. Every foreign Government may be presumed to know that, so far as the treaty stipulates to pay money the legislative sanction is required.

Turner v. American Baptist Missionary Union, 5 McLean, 347.

Subsequent legislation may municipally abrogate a treaty which may nevertheless continue to bind internationally.

Cherokee Tobacco, 11 Wall., 616; aff. 1 Dill., 264; Taylor v. Morton, 2 Curtis, 454; 2 Black, 481; Ropes v. Clinch, 8 Blatch., 304; Bartram v. Robertson, 15 Fed. Rep., 212; Ah Lung, in re., 18 Fed. Rep., 28; supra, § 9.

A stipulation in a treaty that "no higher or other duties shall be imposed on the importation into the United States of any article the produce or manufacture of the dominion of the treaty-making power

than are or shall be payable on the like articles, being the produce or manufacture of any foreign country," does not preclude Congress from passing an act exempting from duty like products and manufac tures imported from any particular foreign dominion it may so favor.

Whitney v. Robertson, 21 Fed. Rep., 566.

An act of Congress repeals an inconsistent provision of a prior treaty. 5 Op., 345, Crittenden. See, however, Marshall, C. J., in 1 Cranch, 109, and Mr. Cushing in 6 Op., 658. And see supra § 9.

A treaty, when proclaimed, is thenceforth the law of the land, to be respected as such, although, as in the case of many laws of a merely