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TREATY-MAKING POWER

OF THE

UNITED STATES

BY
CHARLES HENRY BUTLER

BIR

OF THE NEW YORK BAR

VOL. II.
PART III. JUDICIAL DECISIONS AFFECTING THE TREATY-MAKING POWER

OF THE UNITED STATES, ITS EXTENT AND APPLICATION

THE BANKS LAW PUBLISHING CO.
21 MURRAY STREET, NEW YORK

1902

12061

• OP

Copyright, 1902,
CHE BANKS LAW PUBLISHING Co.

VOLUME II.

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JUDICIAL DECISIONS IN REGARD TO THE RELATIVE EFFECT OF TREATY

STIPULATIONS AND STATE LAWS, PAGES 1-62.

SECTION

PAGE

319–Subject reviewed thus far from historical and not from judi-

cial standpoint......

2

320_Views of members of Constitutional Convention not always

followed by courts.....

2

321-Construction and effect of constitutional provisions to be

determined by courts; President Jackson's views as to

personal construction.....

4

322—Views of publicists and courts as to extent and scope of

treaty-making power....

5

323—Treaty-making power to be considered as to scope and ex-

tent, its effect on State legislation, and the relative effect

of treaties and Congressional statutes.....

5

324—First important treaty case; Ware vs. Hylton......

6

325—Far-reaching effect of decision in Ware vs. Hylton; five opin-

ions delivered......

6

326~Opinions of Justices Chase and Paterson...

7

327-Opinions of Justices Wilson and Cushing.

8

328—Justice Iredell's dissenting opinion......

9

329—John Marshall's defeat; personnel of the court.....

10

330—Ware vs. Hylton the leading authority for over a century.. 11

331-Fairfax vs. Funter; Justice Story's opinion ; State law and

treaties, 1812.

13

332—Chirac vs. Chirac; Chief Justice Marshall's opinion, 1817.. 14

333—The Pollard Case ; Justice Baldwin's opinion; 1840... 18

334—Hauenstein vs. Lynham; Justice Swayne's opinion; 1879.. 20

335—Geofroy vs. Riggs; Justice Field's opinion 1889; the great

extent of the treaty-making power...

23

336—The Chinese influx; legal questions and treaty rights in-

volved...

24

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SECTION

337—This chapter devoted to State legislation and treaty rights.. 25

338Anti-Chinese legislation in Pacific Coast States.....

25

339—Interference of Federal judiciary to protect treaty rights

of aliens...

26

340_Oregon statute prohibiting employment of Chinese laborers

declared void....

27

341-California's constitution of 1879; anti-Chinese provisions

declared void.....

27

342–California anti-Chinese statútes declared void....

28

343—Justice Field's opinion in the Chinese Queue Case; 1879.... 29

344—State statutes upheld; Chinese Laundry Cases....

31

345—Numerous other decisions involving Chinese treaties and

statutes. ...

32

346-Great practical advantages of Federal Judiciary as a forum

for settling disputes as to treaty rights....

32

347—Treaties with Indians; Chief Justice Marshall's opinion as

to their sanctity; Indian treaties and State laws...... 33

348-Decisions of State courts as to State laws and treaties.. 34

349—The rule in New York.

35

350—The rule in Illinois..

38

351—The rule in Iowa and Nebraska..

40

352-The rule in Tennessee.

45

353—The rule in Kentucky and Michigan.

46

354—The rule in Pennsylvania....

46

355—The rule in Massachusetts...

47

356–State laws sustained, as not conflicting with treaty stipula-

tions, by State and Federal courts......

48

357—Police and taxing powers of the State sustained; The Slaugh-

ter House Cases; Justice Miller's opinion.

52

358—California decisions in conflict with general rules.... 59

359—General rule, State statutes must give way when in conflict

with treaty stipulations...

61

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SECTION

368—Taylor vs. Morton ; violations of treaties .......

369—Treaty stipulations and tariff laws; Whitney vs. Robertson.. 69

370—Other treaty stipulations as to tariff; necessity for legislation 71

371–Summary of treaty and tariff decisions..

71

Notes on treaty and tariff cases: The Sugar cases, 72;

the Opium case, 73; the Russian Hemp case, 74; the

Portuguese Tonnage case, 76; other cases, 77.

372—Treaty-making power cannot appropriate money.

76

373— Turner vs. Ain. Bap. Miss. Union ; Justice McLean's opin-

ion as to appropriations ...,

374–Treaty stipulations at times self-operative; the British

prisoners; Justice Woodbury's opinion; the Metzgar cases 79

375—Practical difficulties removed by legislation.....

81

376—Rights of individuals under treaty stipulations; Ilead Money

82

377—Chief Justice Marshall's rule in Foster vs. Neilson reiterated 84

378—Treaties and statutes; the latest prevails; the Cherokee To-

bacco; Justice Swayne's opinion....

84

379—Statutes which violate treaties; difference between State

and United States statutes in this respect; the Chinese

Exclusion Laws....

87

Note on Chinese Exclusion cases: Treaties with China,

87; Chinese Immigration Statutes, 91; Chinese Exclu-

sion cases, 93; Earlier Supreme Court cases, 94; First

Chinese Ecclusion case, 93; Non-desirable Alien Exclu-
sion case, 97; Chinese Merchant's case, 98; deportation,
Second Chinese Exclusion case, 103; other points, 107;
delegation of authority by Congress, 107; right of jury
trial, 108; Chinese Baby case, citizenship by birth, 109;
Chinese Wife case, 113; miscellaneous cases in United
States Circuit and District Courts, 114; Mr. Boutwell's

views and summary, 120.

380—Wide scope of decisions in Chinese Exclusion cases... 102

381—Summary of decisions in cases involving Congressional legis-

lation as to Chinese immigration....

108

382–Termination of war by treaty of peace.

123

383—When treaties take effect, as to governments and as to indi-

viduals..

127

384—Abrogation of treaties; various methods.

129

385-Direct abrogation by Congressional action..

131

386—Abrogation by implication; Ward vs. Race Horse...

132

387—Repeals and abrogations by implication not favored.. 134

388—Right of abrogation in general...

135

389—These views applied to Clayton-Bulwer treaty...

138

390-Congressional legislation to carry out treaty stipulations;

Justice Field's opinion in the Ross case..

139

391—The construction of treaties....

144

J. C. Bancroft Davis's twelve rules for construction of

treaties, 145; note on favored nation clauses and recip-

rocity statutes and treaties, 148.

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