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competency of Congress, operates to nullify all inconsistent state legislation. In this respect, as the Constitution expressly declares, treaties and acts of Congress are upon precisely the same footing.

In Ware v. Hylton,' decided in 1796, Justice Chase says: "There can be no limitation on the power of the people of the United States. By their authority the state constitutions were made, and by their authority the Constitution of the United States was established; and they had the power to change or abolish the state constitutions, or to make them yield to the General Government and to treaties made by their authority. A treaty cannot be the supreme law of the land, that is, of all the United States, if any act of a state legislature can stand in its way. If the constitution of a State (which is the fundamental law of the State, and paramount to its legislature) must give way to a treaty, and fall before it; can it be questioned whether the less power, an act of the state legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made by the authority of the United States shall be superior to the constitution and laws of any individual State; and their will alone is to decide. If a law of a State contrary to a treaty is not void, but voidable only by a repeal or nullification of a state legislature, this certain consequence follows: that the will of a small part of the United States may control or defeat the will of the whole. The people of America have been pleased to declare, that all treaties made before the establishment of the national Constitution, or laws of any of the States, contrary to a treaty, shall be disregarded."

In Fairfax v. Hunter, Chirac v. Chirac, Hauenstein v. Lynham,10 and other cases, the doctrine declared in Ware v. Hylton was approved and applied.

The attempt has been made to detract from the force of Chase's doctrine as declared in Ware v. Hylton, by emphasizing the fact

73 Dall. 199; 1 L. ed. 568.

87 Cr. 603; 3 L. ed. 453.

92 Wh. 259; 4 L. ed. 234.

10 100 U. S. 483; 25 L. ed. 628.

that in that case the treaty in question was one which had been originally entered into under the Confederation, that is, at a time when the States were severally sovereign, and that, therefore, it was a treaty to which the States may be said to have individually assented. There would not, however, seem to be much force in this, for if, after the adoption of the Constitution, the treaty in question could be considered in any way as still an instrument deriving its validity from the consent of the State, it could have been abrogated by subsequent state action, but this, of course, was expressly denied by the court in Ware v. Hylton. The truth is that the Constitution puts treaties, made and to be made, upon exactly the same footing, and in the later cases which are cited above, the doctrine of Ware v. Hylton is considered as controlling with reference to treaties made after the adoption of the Constitution.

It may, then, be considered as established that a treaty entered into by the Federal Government with respect to a matter within the federal jurisdiction is supreme over a conflicting state law. This leads to the question whether, by an exercise of the treaty-making power, the Federal Government may regulate matters within the States which it may not control by act of Congress, and if, in this respect, the treaty-making power is broader than the legislative, in what respects, and to what extent, it is broader.

§ 213. Judicial Dicta that Reserved Rights of the States May not Be Infringed.

Upon this point the declarations of the Supreme Court are not completely satisfactory. In various of its opinions this tribunal has explicitly asserted that the rights reserved by the Constitution from the control of the other departments of the Federal Government may not be infringed by its treaty-making power.

In Prevost v. Greenaux11 the court say: "That a treaty is no more the supreme law of the land than is an act of Congress is

11 19 How. 1; 15 L ed. 572.

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."

In the License Cases12 Justice Daniel, dissenting, declared: "This provision of the Constitution, it is to be feared, is sometimes applied or expounded without those qualifications which the character of the parties to that instrument, and its adaptation to the purposes for which it was created, necessarily imply. Every power delegated to the Federal Government must be expounded in coincidence with a perfect right in the States to all that they have not delegated; in coincidence, too, with the possession of every power and right necessary for their existence and preservation; for it is impossible to believe that these ever were in intention or in fact, ceded to the General Government. Laws of the United States, in order to be binding, must be within the legitimate powers vested by the Constitution. Treaties, to be valid, must be made within the scope of the same powers; for there can be no authority of the United States' save what is derived mediately or immediately, and regularly and legitimately, from the Constitution. A treaty, no more than an ordinary statute, can arbitrarily cede away any one right of a State or of any citizen of a State. In cases of alleged conflict between a law of a State and the Constitution or a statute of the United States, this court must pronounce upon the validity of either law with reference to the Constitution; but whether the decision of the court in such cases be itself binding or otherwise must depend upon its conformity with, or its warrant from, the Constitution. It cannot be correctly held, that a decision, merely because it be by the Supreme Court, is to override alike the Constitution and the laws both of the States and of the United States."

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And in a dissenting opinion in the Passenger Cases13 Chief Justice Taney with respect to the treaty power declared: "The first inquiry is, whether, under the Constitution of the United States, the General Government has the power to compel the sev eral States to receive, and suffer to remain in association with its

125 How. 504; 12 L. ed. 256.

127 How. 283; 12 L. ed. 702.

citizens, every person or class of persons whom it may be the policy or pleasure of the United States to admit. In my judgment, this question lies at the foundation of the controversy in this case. I do not mean to say that the General Government have, by treaty or act of Congress, required the State of Massachusetts to permit the aliens in question to land. I think there is no treaty or act of Congress which can justly be so construed. But it is not necessary to examine that question until we have first inquired whether Congress can lawfully exercise such a power, and whether the States are bound to submit to it. For if the people of the several States of this Union reserved to themselves the power of expelling from their borders any person, or class of persons, whom it might deem dangerous to its peace, or likely to prove a physical or moral evil among its citizens, then any treaty or law of Congress invading this right, and authoriz ing the introduction of any person or description of persons against the consent of the State, would be an usurpation of power which this court could neither recognize nor enforce. I had supposed this question not now open to dispute."

In addition to the foregoing assertions of incompetence of the treaty-making power to invade the reserved rights of the States, there are the dicta, earlier quoted, to the effect that this power, though not in terms limited by the Constitution, is not competent to change the general character of our government. If the treatymaking power has not this power, then certainly the reserved rights of the States are not completely at its mercy. For to invade radically the exclusive jurisdiction of the States would be, in effect, to change the nature of our federal constitutional system. § 214. Instances in Which Treaties Have Been Upheld though Infringing Reserved Rights of the States.

Opposing, however, these dicta which have been quoted are a line of cases, in which treaties have been held constitutional with reference to matters which are admittedly not within the power of Congress to control. And, also, there have been numerous cases in which state laws with reference to matters within the

ordinary legislative competence of the States, have been held void because of conflict with subsisting federal treaties.14

Thus, in the case of De Geofroy v. Riggs, 15 to which reference. has already been made, it is declared: "That the treaty power of the United States extends to all proper subjects of negotiation between our government and the government of other nations, is clear. It is also clear that the protection which should be afforded to the citizens of one country owning property in another, and the manner in which that property may be transferred, devised or inherited, are fitting subjects for such negotiations and of regulation by mutual stipulations between the two countries. As commercial intercourse increases between different countries the residence of citizens of one country within the territory of the other naturally follows, and the removal of their disability from alienage to hold, transfer and inherit property in such cases tends to promote amicable relations. Such removal has been within the present century the frequent subject of treaty arrangement. The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. (Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525; 5 Sup. Ct. Rep. 995; 29 L. ed. 264.) But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country."

14 Ware v. Hyltan, 3 Dall. 199; 1 L. ed. 568; Hopkirk v. Bell, 3 Cr. 454; 2 L. ed. 497; Fairfax v. Hunter, 7 Cr. 603; 3 L. ed. 153; Chirac v. Chirac, 2 Wheat. 259; 4 L. ed. 234; Lattimer v. Poteet, 14 Pet. 4; 10 L. ed. 328; Hauenstein v. Lynham, 100 U. S. 483; 25 L. ed. 628; De Geofroy v. Riggs, 133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642. See also a strong dictum in Ward v. Race Horse, 163 U. S. 504; 16 Sup. Ct. Rep. 1076; 41 L. ed. 244.

15 133 U. S. 258; 10 Sup. Ct. Rep. 295; 33 L. ed. 642.

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