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provided. Under this Constitution therefore, so far as a treaty constitutionally is binding, upon the principles of moral obligation, it is also by the vigor of its own authority to be executed in fact. It would not otherwise be the supreme law in the new sense provided, and it was so before in a moral sense." 2

$329. John Marshall's defeat; personnel of the court. -The fact that this decision was delivered over a century ago makes it all the more authoritative, as the justices who announced it had the advantage of contemporaneous knowledge of many matters affecting the subject-matter involved and circumstances affecting it. It was before the advent of the great Marshall upon the bench; but he appeared as one of the counsel, and, although he represented the defense, he did not dare to deny the great force and far-reaching effect of that treaty-making power of the United States which subsequently, as Chief Justice, he upheld so strenuously and efficiently. It is interesting at this time to note the fact that this was the only occasion on which John Marshall appeared as counsel before the Supreme Court; it is also interesting to note that on this single occasion he was unsuccessful.

Justice Paterson had been a member of the Constitutional Convention, and, as we have already seen, largely instrumental in strengthening the treaty-making power of the Federal Government. Justice Wilson had been a member of Congress, a signer of the Declaration of Independence, and was one of the ablest and most active members of the Federal Convention, as well as that of his own State of Pennsylvania in which he was the acknowledged leader of the majority which ratified the instrument in spite of the opposition which was based to such a large degree, as we have seen, on the extent of the treaty-making power lodged in the Central Government. Justice Iredell had been a mem

23 Dallas, pp. 276-277.

§ 329.

1 For Justice Story's opinion as to the qualifications of the members of the Supreme Court, see note under § 143, pp. 246-247, Vol. I.

2 For the part taken by Justice Wilson in the Federal Convention see § 182, p. 314, Vol. I; for the part which he took in the Pennsylvania State Convention, see § 199, p. 341, Vol. I.

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ber of the Constitutional Convention of North Carolina,3 and was also the author of the reply to Colonel Mason's objections to the Constitution. The Chief Justice of the Court

was one of the authors of the Federalist.5

§ 330. Ware vs. Hylton the leading authority for over a century.—Although the opinions in this case were delivered over one hundred and four years ago, they are as much the law of the land to-day as they were then; as an exposition of the Constitutional treaty-making power of the United States they have never been questioned; on the contrary, they have frequently been cited affirmatively and followed by the courts of the States and of the United States, including the Supreme Court itself, which has on more than one occasion made them the basis of its decisions in regard to the construction of treaties, not only in respect to this element but also as to other points of treaty and Constitutional construction involved.

If any one considers that too much space has been devoted to this single expression of the Supreme Court, the author can only state that in his opinion the entire law of the treatymaking power so far as the points involved are concerned, has been summed up in the extracts which have been quoted from the opinions delivered in this case, which according to the Centennial historian of the Supreme Court, is one of the most far-reaching decisions rendered by that tribunal during the first century of its existence.1 Other decisions were

3 See § 227, p. 366, Vol. I. 4 See § 253, p. 389, Vol. I. 5 See § 249, p. 387, Vol. I. § 330.

1 State of Georgia vs. Brailsford, U. S. Sup. Ct. 1794, 3 Dallas, 1, JAY, Ch. J., involved similar questions to those involved in Ware vs. Hylton.

Mr. Carson, the historian of the Supreme Court, in his Centennial History, on page 169, after referring to the case of the State of Georgia vs. Brailsford, says:

"This decision, although not elaborately expressed, involved the

important principle that the Treaty of Peace, like the Constitution, was in respect to matters embraced by its terms, the supreme law, and could not be restricted in its operation by State action or State laws. The same result was reached, and the same conclusion justified after the most exhaustive examination in the far more celebrated case of Ware vs. Hylton, in which the splendid eloquence of Patrick Henry, the great reasoning faculties of John Marshall at the bar, and the powerful dissenting opinion of Iredell were employed in

rendered involving similar questions but this was the leading case and established the legal principles involved.2

tions as to those decided in Ware vs. Hylton and was decided in the same manner and without opinion.

Society for the Propagation of the Gospel vs. Hartland, U. S. Cir. Ct. Vermont, 1814, 2 Paine, 536; Federal Cases 13, 155; THOMPSON, J.

Same vs. Wheeler, U. S. Cir. Ct. New Hampshire, 1814, 2 Matthews, 105; Federal Cases 13, 156; STORY, J.

State of Vermont vs. Society for the Propagation of the Gospel, U. S. Cir. Ct. Vermont, 1826, Federal Cases 16, 919-20; THOMPSON, J.

vain to convince the Court that Congress had no power to make a treaty that could operate to annul a legislative act of any of the States, and thus destroy rights acquired under such an act. Chase, Patterson, Wilson and Cushing, impressed by the uncommon magnitude of the subject, the bitter and exciting controversies it had provoked, and the far-reaching consequences by which their decision would be attended, although differing upon some matters of detail and in the mode of their reasoning, reached the conclusion that the Treaty of 1783 was Society &c. vs. Town of New the supreme law, equal in its effect Haven, United States Sup. Ct. 1823; to the Constitution itself, in over- 8 Wheat. 464; WASHINGTON, J. ruling all State laws upon the sub- These cases were all the result of ject, and the words that British State confiscation acts of property creditors should meet with no law-owned by the British Society; the ful inpediment, were as strong as Supreme Court held that the sothe wit of man could devise to ciety had a right to hold the propavoid all effects of sequestration, erty, and that its rights became confiscation, or any other obstacle vested under the treaty of 1783, the thrown in the way by any law, provisions of which were superior particularly pointed against the to State laws; also that although recovery of such debts. The deci- these suits were not brought until sion expanded from a statement of after the War of 1812, the rights the contractual liability of an indi- had become so vested under prior vidual to an assertion that the treaties that the Society had a right treaty obligations of the nation to recover and hold its property. were paramount to the laws of the It was also held that a State cannot individual States. Happy conclu- pass laws confiscating franchises. sion! A contrary result would have There is quite a lengthy discussion blackened our character, at the in the opinion as to the effect of very outset of our career as a nation, war upon treaties. In Society for with the guilt of treachery to the the Propagation &c. vs. Pawlett, terms of the treaty by which our U. S. Sup. Ct. 1830, 4 Peters, 480, Independence had been recognized, STORY, J., it was held, however, and would have prostrated the that the Society could not recover national sovereignty at the feet of mesne profits during the period of Virginia." confiscation.

2 Clarke vs. Harwood, U. S. Sup. Ct. 1797, 3 Dallas, 342, PER CURIAM. This case involved similar ques

Higginson vs. Mein, U. S. Sup. Ct. 1808, 4 Cranch, 415, MARSHALL, J. In a foreclosure case held that the

331. Fairfax vs. Hunter; Justice Story's opinion; State law and treaties, 1812.-The case of Fairfax's Devisee vs. Hunter's Lessee, an action in ejectment involving the construction of the treaties of 1783 and 1794 between Great Britain and the United States, was decided by the Supreme Court in 1812. In this case Justice Story, who delivered the opinion, declared that, as the possession and seizin of the property had continued up to and after 1794, the treaty of that year being the supreme law of the land, confirmed the title to him, his heirs and assigns, and protected them from forfeiture; he concludes that portion of his opinion which deals with this aspect of the case by saying:

"It was once in the power of the commonwealth of Virginia, by an inquest of office, or its equivalent, to have vested the estate completely in itself or its grantees. But it has not so done, and its own inchoate title (and of course the derivative title, if any, of its grantee) has by the operation of the treaty become ineffectual and void. It becomes unnecessary to consider the argument as to the effect of the death of one of the parties during the suit; because admitting it to be correctly applied in general, the treaty of 1794 completely avoids it."i

confiscation and sale of the property under confiscation laws of the State of Georgia, did not affect the title as the sale did not take place until after the treaty of peace, and that the statute of limitations could not be pleaded.

See also Hamilton vs. Eaton, U. S. Cir. Ct. No. Car. 1792, 1 Hughes, 249; Fed. Cas. 5980, ELLSWORTHI, CH. J., SITGREAVES, J.

Hylton vs. Brown, U. S. Cir. Ct. Pa. 1806, 1 Washington, 298, 343, Fed. Cas. 6982, WASHINGTON, J.

Jones vs. Walker, U. S. Cir. Ct. Va. 1803, 2 Paine, 688, JAY, CH. J. These are but a few of the early decisions on this subject; all the cases cited under the subsequent sections of this chapter should be carefully examined.

§ 331.

1 Fairfax vs. Hunter, U. S. Sup. Ct. 1813, 7 Cranch, 603 (see p. 627), STORY, J., and see also Martin vs. Hunter, U. S. Sup. Ct. 1816, 1 Wheaton, 304, STORY, J.

Orr vs. Hodgson, U. S. Sup. Ct. 1819, 4 Wheaton, 453, STORY, J.

Shanks vs. Dupont, U. S. Sup. Ct. 1830, 3 Peters, 242, STORY, J. The effect of the treaty of peace with Great Britain discussed and determined.

Hopkirk vs. Bell, U. S. Sup. Ct. 1806-7, 3 Cranch, 453, 4 Cranch, 163. American debtors set up the Virginia State statute of limitations as a bar to recovery of debts of British creditors.

Held, that under the provisions of the treaties of 1783, 1794 and

§ 332. Chirac vs. Chirac; Chief Justice Marshall's opinion, 1817.-During the existence of the French treaty of

1802, a State statute of limitations | tected and confirmed by the ninth was not a bar to recovery. article of the treaty of 1794.

Craig vs. Radford, U. S. Sup. Ct., 1818, 3 Wheaton, 594, WASHINGTON, J.

"These principles are decisive of the objection now under considera-. tion. In that case, as in this, the legal title vested in the alien by purchase during the war, and was not devested by any act of Virginia, prior to the treaty of 1794, which

Held, that a British subject was protected in his title to lands in Virginia under the treaty of 1794 notwithstanding State laws and regulations as to aliens. Follow-rendered their estates absolute and ing Fairfax vs. Hunter, 7 Cranch, indefeasible." 603, the opinion says on page 599: "The last objection made to this decree is, that as a British subject, Wm. Sutherland could not take a legal title to this land under the State of Virginia, and, conse-jection that the holder of the quently, that the grant to him in 1788 was void, and was not protected by the treaty of 1794 between the United States and Great Britain.

"The decision of this court in the case of Fairfax's Devisee vs. Hunter's Lessee, (7 Cranch, 603), affords a full answer to this objection. In that case the will of Lord Fairfax took effect in the year 1781, during the war, and Denny Martin, the devisee under that will, was found to be a native born British subject who had never become a citizen of any of the United States, but had always resided in England. "It

was ruled in that case, 1st. That although the devisee was an alien enemy at the time of the testator's death, yet he took an estate in fee under the will, which could not, on the ground of alienage, be devested but by inquest of office, or by some legislative act equivalent thereto. 2d. That the defeasible title thus vested in the alien devisee was completely pro

Hughes vs. Edwards, U. S. Sup. Ct. 1824, 9 Wheaton, 489, WASHINGTON, J. A decree of foreclosure and sale affirmed by the Supreme Court notwithstanding the ob

mortgage was an alien, the court holding that the mortgagee was protected in his rights by the provisions of the treaty of 1794. The opinion says, at p. 496:

"2. The next objection relied upon is the alienage of the respondents. This objection would not, we think, avail the appellants, even if the object of this suit was the recovery of the land itself, since the remedies as well as the rights of these aliens, are completely protected by the treaty of 1794, which declares that British subjects, who now hold lands in the territories of the United States, etc., shall continue to hold them, according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please, in like manner as if they were natives; and that neither they, nor their heirs or assigns, shall, so far as respect the said lands, and the legal remedies incident thereto, be regarded as aliens.' In the cases

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