had been given to the erection of the new State and the separation of the two counties. Unless therefore Congress had given its consent before December 5, 1865, the date of the repeal by the Virginia legislature, there could be no valid agreement for the transfer of the two counties. It appeared, however, that in the acts of August 30, 1861, and May 13, 1862, of the Virginia legislature, consenting to the erection of certain designated counties into a separate State, consent was also given to the inclusion of Jefferson, Berkeley and other counties whenever the inhabitants should express a wish for it; and the constitution adopted by the new State, after naming the counties composing the State, provided that the additional counties should form a part of it, if by a majority vote their inhabitants should adopt the constitution. No vote was taken in these counties in 1862, at the time of the admission of West Virginia, but Congress then had the statutes of Virginia of 1861 and 1862 and the constitution of West Virginia under consideration. The Court therefore held that, although Congress did not expressly recite every proposition embraced in the agreement, yet the inference was clear that it intended to consent to the admission of the new State with the contingent boundaries provided for in the constitution and the statutes.'

In the case of Virginia vs. Tennessee, decided in 1893, the Court, Mr. Justice Field delivering the opinion, held that the consent of Congress might be implied from its subsequent legislation. A boundary line as run by commissioners appointed by the States of Virginia and Kentucky was by acts of the legislatures of the respective States, in 1803, "ratified, established and confirmed."

'Virginia vs. West Virginia, 11 Wall., 39, 60.

The line was recognized by Congress as the boundary in establishing judicial and revenue districts, and in federal elections and appointments. Such recognition in a single instance, said the Court, "would not perhaps be considered as absolute proof of the assent or approval of Congress to the boundary line; but the exercise of jurisdiction by Congress over the country as a part of Tennessee, on one side, and as a part of Virginia on the other, for a long succession of years without question or dispute from any quarter furnishes as conclusive proof of assent to it by that body as can usually be obtained from its most formal proceedings." A safer procedure, however, was recently adopted by the States of Nebraska and South Dakota. On June 3, 1897, the governors of the two States, proceeding under acts of their legislatures, signed a compact providing for a boundary line in the Missouri. The compact was by express provision made subject to the consent of Congress, which was given by an act approved July 24, 1897.*

1 148 U. S., 503, 522.

I

130 Stat. at L., 214. In giving the decision of the Court in the case of Virginia vs. Tennessee, Mr. Justice Field suggested possible cases of understandings between States which in his opinion were not prohibited by the terms agreement" and "compact" of this section. Such would be, he said, a concerted plan for draining a common malarial or disease-producing district, or for preventing a sudden invasion of a plague or other causes of sickness; a contract by Massachusetts and New York for the transportation of exhibits for the World's Fair at Chicago over the Erie canal; the mere appointment of parties to run and designate a boundary line or to designate what line ought to be run; or a mutual declaration accepting a line as the true boundary, so far as it does not affect the political power or influence of the States concerned and thus encroach on the full and free exercise of federal authority. 148 U. S., 518–520.

6. THE EXECUTION OF TREATIES

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."-Article VI of the Constitution.

(a) Affecting the Residuary Powers of the States

The design of this article, so far as it relates to treaties, was primarily to insure their execution by the public. authorities, State as well as national, in spite of any adverse State action. That this was accomplished, was fully established by the decision of the Supreme Court, in 1796, in the case of Ware vs. Hylton. In all the opinions of the judges, including the sole dissenting opinion by Mr. Justice Iredell, it is unanimously held that a treaty under the Constitution repeals ipso facto State laws inconsistent with it. Mr. Justice Chase said, without qualification, "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 by a State legislature, this certain consequence follows, that the will of a small part of the United States may control or defeat the whole. * * The constitution or laws of any of the States, so far as either of them shall be found contrary to that treaty, are, by force of said article, prostrated before the treaty." Mr. Justice Iredell, who had written in defense of this article in the discussions that

*

preceded the adoption of the Constitution, but who now dissented from the decision of the Court on the ground that the treaty did not affect rights already vested, likewise observed that under the Constitution, "so far as a treaty constitutionally is binding, upon 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 for, and it was so before in a moral sense."

The supremacy of treaties over State legislation has since been drawn in question only when they relate to subjects not embraced in the powers delegated to the central government. Mr. Calhoun, as Secretary of State, in communicating to Mr. Wheaton, June 28, 1844, the unfavorable report of the Senate Committee on Foreign Relations on the proposed treaty with the German Zollverein, said "The treaty-making power has, indeed, been regarded to be so comprehensive as to embrace, with few exceptions, all questions that can possibly arise between us and other nations, and which can only be adjusted by their mutual consent, whether the subjectmatter be comprised among the delegated or the reserved powers." The tendency of the Supreme Court on the question is disclosed in its decisions on treaty stipulations defining the privileges of aliens in succeeding to and disposing of property located within the States, a matter, in the absence of a treaty, not within the province of the central government,3 yet naturally subject to treaty regulation. By Article VII of the

13 Dallas, 199, 237, 277.

'Wharton's International Law Digest, vol. ii, p. 67.

S Ibid., vol. ii, p. 69. 12 Op. Att.-Gen., 6.

treaty with France of September 30, 1800, it was stipulated that citizens of the one country might dispose of or succeed to property, movable or immovable, in the other, without being obliged to obtain letters of naturalization. In 1817 the Court decided that this article overrode the limitations of a Maryland statute with which it conflicted. Likewise in 1819 it was held that Article IX of the treaty with Great Britain of November 19, 1794, removed impediments to alien inheritance regardless of Virginia statutes to the contrary. In 1879 the Court sustained these earlier decisions in a case that arose under the fifth article of the treaty with Switzerland of November 25, 1850. By this article alien heirs, if precluded from holding real estate in the particular State or canton, were permitted to dispose of the property, and to withdraw and export the proceeds without difficulty. In delivering the opinion of the Court-that the provision was within the treaty-making power under the Constitution, and must prevail over any conflicting statutes of Virginia-Mr. Justice Swayne observed: "If the national government has not the power to do what is done by such treaties, it cannot be done at all, for the States are expressly forbidden to 'enter into any treaty, alliance, or confederation.""3 The position of the Court was expressed not less clearly in the case of Geofroy vs. Riggs, 133 U. S., 258, which involved the right of French subjects residing in France to inherit real estate in the District of Columbia. It was necessary to decide as to the effect of Article VII of the treaty of 1800 with France upon the pre-existing laws of Maryland, in order

'Chirac vs. The Lessee of Chirac, 2 Wheat., 275. See also 10 Wheat., 181.

"Orr vs. Hodgeson, 4 Wheat., 464.

3 Hauenstein vs. Lynham, 100 U. S., 483, 486, 490.