contains the following statement as to the necessity of vesting this power in the Central Government:5 "Upon some subjects the policy of a State Government, as shown by her legislation, is dependent upon the policy of foreign Governments, and would be readily changed from the principle of mutual concession. This can only be effected by the action of that branch of the State sovereignty known as the General Government, and when effected the State policy must give way to that governmental agent of her foreign relations.” "The treaty-making power of the Federal Government must, from necessity, be sufficiently ample so as to cover all of the usual subjects of treaties between different powers. If we were to deny to the treaty-making power of our Government the exercise of jurisdiction over the property of deceased aliens, upon the ground of interference with the course of descents, or the laws of distribution of a State where property may exist; by parity of reasoning we should not make commercial treaties with foreign nations; because, it might be said, some of their provisions would injure the business of a portion of the citizens of one of the States of the Union.

"If the treaty-making power which resides in the Federal Government is not sufficient to permit it to arrange with a foreign nation the distribution of an alien's property, then that power resides nowhere, (since it is denied to the States,) and we must confess our system of government so weak and faulty, as to be incapable of extending to its citizens in foreign lands that protection which is most common amongst a majority of modern civilized nations."

Notwithstanding these opinions, however, the Supreme Court declared in in 1869,6 that it was no answer in regard to congressional statutes to say that they had been enacted under the treaty-making power because "a treaty is but a part of the law of the land and what is forbidden by the Constitution can no more be done by a treaty than by an act of Congress," and, relying upon that declaration the court upheld certain laws of California which were appar

5 See pp. 385-6, 5 Cal. Rep.

• People vs. Washington, Sup. Ct. Cal. 1869, 36 Cal. 658, RHODES, J; see p. 668.

See also, however, Bodley vs. Ferguson, Sup. Ct. Cal. 1866, 30 Cal. 511, (see p. 517), SHAFTER, J.

ently repugnant to the Fourteenth Amendment, and the Civil Rights Bill.'

$359. General rule, State statutes must give way when in conflict with treaty stipulations.-The decisions of cases affecting State statutes and treaties show that in all instances the treaty-making power is supreme and that conflicting State statutes must yield, and that State statutes have been upheld only when it clearly appears that they are not in contravention of the treaty stipulations involved. In none of the cases reviewed in this chapter has the treaty-making power of the United States in any way been attacked or affected; the power exists, the treaties have always been declared valid; as to that point no question has been raised; the question for the Court has always been whether the statute conflicts with the treaty or whether it be so construed as to be consistent therewith, for only in such case can it be sustained.1

cases on the subjects involved in the preceding clause of the Constitution, see Lectures on the Fourteenth Article of Amendment to the Constitution of the United States by William D. Guthrie, Boston, 1898; also, A Treatise on the Rights and Privileges Guaranteed by the Fourteenth Amendment to the Constitution of the United States by Henry Brannon, Judge of the Supreme Court of West Virginia, Cincinnati, 1901.

Many of the cases involving questions under the first section of the Fourteenth Amendment to the Constitution of the United States, and the Civil Rights Bill are applicable to cases involving the usual treaty stipulations in regard to according to citizens of the other nation the same rights that are accorded to citizens of the United States. The Fourteenth Amendment provides: "§ 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State in the light of the Fourteenth shall make or enforce any law Amendment would be applicable which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law."

It can readily be seen that decisions as to whether or not State laws are Constitutional as viewed

in many respects to questions af-
fecting rights guaranteed by the
Federal government under treaty
stipulations to citizens of foreign
governments.
$359.

1 Fisher vs. Harnden, U. S. Cir. Ct. N. Y. 1812, 1 Payne, C. C. 55,

For exhaustive collections of LIVINGSTON, J. (Afterwards re

Having thus shown that the supremacy of treaties over all State statutes conflicting therewith has not only been upheld by the Federal courts, but has been universally recognized by the State courts, in the next chapter we will review the decisions of the Courts in regard to the relations of congressional legislation and treaties; we will find that the Courts necessarily determine questions in that branch of the subject from an entirely different standpoint on account of the acknowledged equality of statutes and treaties of the United States under Article VI of the Constitution.

versed in Harnden vs. Fisher, U. S. | MARSHALL, Ch. J., but treaty and Sup. Ct. 1816, 1 Wheaton, 300, | State statute point not affected.)

62

CHAPTER XII.

DECISIONS OF FEDERAL COURTS IN REGARD TO THE RELATIVE EFFECT OF TREATY STIPULATIONS AND CONGRESSIONAL ACTION.

SECTION

387-Repeals and abrogations by

implication not favored.

388-Right of abrogation in gen

eral.

389-These views applied to Clayton-Bulwer treaty.

-

SECTION

390-Congressional legislation to

carry out treaty stipula tions; Justice Field's opinion in the Ross case. 391-The construction of treaties.

§ 360. Decisions in preceding chapter relate to State legislation. The only decisions cited in the preceding chapter are those which relate to the supremacy of the treatymaking power of the United States, so far as State legislation is concerned, and which also demonstrate that State legislation, whether enacted prior to the treaty, or subsequently thereto, must give way whenever it conflicts with the plain import of treaty stipulations; that is to say it has been decided that the United States, as to any matter which is within the scope of the treaty-making power, can practically repeal, and render inoperative any existing, or subsequently enacted State laws which conflict with the provisions of a treaty.

In fact, it must be conceded that the cases cited in the last chapter in which treaty stipulations have so operated as to practically change, or nullify, State laws of succession and inheritance, and in which they have rendered nugatory antiChinese legislation, show beyond all peradventure that State laws are in all respects subordinate to the treaty-making power of the Central Government.1

§ 361. Different rules applicable to questions arising from conflicting treaty stipulations and congressional legislation. An entirely different condition, however, exists as to the relative effects of treaty stipulations and congressional legislation; the decisions which will be cited in this chapter show that while a treaty can supersede a prior act of Congress, on the other hand a subsequent act of Congress may supersede a prior treaty, either by rendering it ineffect

$ 360.

1 Except in those instances in which the police powers and taxing of the State have been sustained;

(see §§ 356, et seq., pp. 48, et seq., ante) and even in those cases the state acts have been closely scrutinized by the Courts.