its history have expressed the opinion that a treaty in conflict with the law of a State annuls it. This I freely admit, but such expressions were mere dicta and not necessary to the decision of the case or were made in a case where the conflict between the treaty and the State law did not exist. This being a constitutional question, the court will not consider it unless it be necessary to the decision of the case.*

Article VI, Section 2 of the Constitution reads thus: "This constitution" (first), "and the laws of the United States, which shall be made in pursuance thereof" (second), "and all treaties made or which shall be made under the authority of the United States" (third), "shall be the supreme law of the land."

The advocates of the unlimited Treaty-Making Power proceed as if the clause reads as follows: "All treaties made or which shall be made under the authority of the United States shall be the supreme law of the land."

As a matter of fact, the clause, as written in the Constitution, declares that first, the Constitution, second, laws made in pursuance thereof, and third, treaties, are the supreme law of the land, but it does not declare which one is supreme over the other, and all three are mentioned in the same article, with exactly the same grants of power and of supremacy. If the Constitution is supreme, then the laws of Congress and treaties are subordinate to it. If treaties are supreme, then the Constitution and the laws of Congress are subordinate to them. And there is nothing in this clause that gives to any one of the three superiority over either of the other two. But, the consideration of this question, of course, necessarily implies, according to the rules of construction which pertain to every written instrument, that each clause or sentence of any instrument must be read and considered in connection with the whole instrument, and each provision of the instrument will be sustained, and no one provision destroyed, if possible.

The first case brought to the Supreme Court on the construction of this clause was Ware v. Hylton (3rd Dallas 199). It was decided in 1796. This case is familiar to many of

*Limitations on the Treaty-Making Power by H. St. George Tucker, p. 192, et seq.

you no doubt as involving old British debts, a case that grew out of claims of British creditors against American debtors just after the Revolutionary War. This case has been quoted for one hundred and twenty years as having first and finally decided the question that a treaty is superior to and annuls all laws of a State in conflict with it. It is a case which you will remember Patrick Henry argued in the city of Richmond with John Marshall for the Virginia debtors. The case was heard before Justices Jay and Ireland, and Griffin, the district judge. It was in May, 1794, that the case was heard. The old chief justice, as he left his apartments that morning to go to the hearing of the case, was walking with Judge Ireland, and Judge Ireland said to him, "I am very curious to hear this Governor Henry; he is said to be quite a speaker, and I understand he is to appear in this case." "Oh, yes,' said the chief justice, "he is a remarkable speaker." The account which I read in an old magazine of this incident said that when Governor Henry had been speaking about two days and was coming down the home stretch with all flags flying and with that wonderful eloquence peculiar to him, Judge Ireland was so enthused by it that he grabbed the chief justice by the arm and said, "Great God, what an orator!" The case was decided in the lower court in favor of the Virginia debtors, and was taken to the Supreme Court. Patrick Henry did not follow the case there, but Marshall did. It is the only case that Judge Marshall ever argued, by the way, in the Supreme Court, and he lost it. The case was heard before four judges; Justice Ireland sat in the case, but announced that he would take no part in its decision as he had sat on the court below. It required of course a majority of the four to reverse the decision below; it required three out of the four.

Now what was the case? It was a suit on a bond, an action brought by a British creditor against a Virginia debtor. There were two pleas to the declaration, one of which we need not consider, and the second plea was a plea setting up a Virginia law of 1777, which it was claimed confiscated British debts. To that law of 1777, when that plea was filed, immediately a replication was filed setting up the Treaty of Peace between

the United States and Great Britain, in which it was declared that no legal impediment should be set up against the collection of debts between the two countries, and that the law of Virginia of 1777 was a legal impediment. To that replication there was a rejoinder by the Virginia debtors, in which they said in effect "your old treaty is no good; you promised to do certain things and you haven't done them and, as your treaty has been violated in some respects, it is no good in any." That was the rejoinder. To that rejoinder there was a demurrer. Now, brethren of the bar, what was the effect of that demurrer? Why, virtually that demurrer went not only to the rejoinder, but to every prior pleading in the case beginning with the declaration and stopped where the first error was found. When this second plea was reached, what did they say to that? Three of the four judges declared that the Virginia Act of 1777 was invalid. What was the effect of that? Why, the plea fell of course; when the plea fell, the replication to the plea fell; when the replication went out, the rejoinder went out; and there was nothing left except the declaration and a clear road to judgment, and the court held in favor of the British creditor by eliminating the Virginia law, declaring that it was no law. It was not decided that the treaty was in conflict with the law, for the court held that there was no law. Yet that case has been quoted and cited for one hundred and twenty years as deciding a conflict between the law and the treaty, when three of the four judges declared there was no law. The case was decided right, but the point I am addressing my attention to is that it is claimed that this case decided a conflict between the law and the treaty, when as a matter of fact you see there could be no conflict between the law and the treaty, if the court declared there was no law!

Judge Chase, who was a man of clear legal vision, delivered the clearest and ablest opinion in the case. He uses the following language: "The second point made by counsel for the plaintiff in error was 'if the Legislature of Virginia had a right to confiscate British debts, yet she did not exercise that right by the Act of the 20th of October, 1777'; if this objection is well founded, the plaintiff in error must have

judgment for the money covered by the plea of that law, and the payment under it."* That was Judge Chase's view of the case, but each judge delivered a separate opinion and his was not the opinion of the court. So misunderstood has this case been, however, that six years ago-in the city of Washington, where the National Society of International Law was meeting, and discussing the treaty power, no less a lawyer than Mr. Root, as president of that association, in speaking of Judge Chase's opinion, declared it was the opinion of the court. If Judge Chase's opinion had been the opinion of the court, the issue would have been decided clearly in favor of the treaty. Two deans of law schools in the same meeting quoted Judge Chase's opinion as the opinion of the court; so that this case for one hundred and twenty years has been quoted as deciding that the treaty annulled the State law of Virginia, and yet it shows by analysis that it could not have decided that, as the majority of the court held either that the State law was invalid, or if valid, that it did not actually attempt to confiscate debts.

The next case is that of Chirac v. Chirac, 2 Wheat, 259, followed by Hauenstein v. Lynham, 100 U. S. 483, and then by Geofroy v. Riggs, 133 U. S. 266.

John Baptiste Chirac became a resident of Maryland in 1793. In 1795 he took the oath of citizenship under the law of said State and received a conveyance in fee of land from the State. In 1798 he became a naturalized citizen under the laws of the United States and died in 1799, leaving heirs in France. His land was escheated to the State. In 1809 his heirs brought ejectment for the land.

The treaty between France and the United States of 1800, which was in existence when the heirs brought the suit in ejectment contained the following:

"The citizens and inhabitants of either of the two countries who shall be heirs of goods, moveable or immoveable, shall be able to succeed ab intestato without being obliged to obtain letters of naturalization and without having the effect

*Three of the four judges sitting in the case found this 'objection' well 'founded'. viz. Paterson, Wilson and Cushing.

of this provision contested or impeded under any pretext whatever."

The law of Maryland referred to, contained the following: "If any subject of France, who shall become a citizen of Maryland, 'shall die intestate, the natural kindred of such decedent, whether living in France or elsewhere, shall receive the property in like manner as if such decedent and his kindred were the citizens of the United States." *

* *

"But to this enacting clause is added a proviso; that whenever any subject of France shall by virtue of this act, become seized in fee of any real estate, his or her estate ‘after the term of ten years be expired' shall vest in the State, unless the person seized of the same shall within that time, either come and settle in and become a citizen of this State, or enfeoff thereof some citizen of this or some other of the United States of America."

The heirs of Chirac complied with neither of these requirements. The effect of the clause from the Treaty of 1800, quoted above, Judge Marshall tells us in the following:

"The direct object of this stipulation is to give French subjects the rights of citizens so far as respects property and to dispense with the necessity of obtaining letters of naturalization. It does away with the incapacity of alienage and places the defendants in precisely the same situation with respect to lands, as if they had become citizens. It renders the performance of the condition a useless formality."

When the Maryland law said that the estate should cease after ten years unless the owners became citizens of Maryland, or some other State of the Union, Judge Marshall says that that condition of the law of Maryland was met by the treaty which put the Frenchmen "in the same situation with respect to land, as if they had become citizens." The treaty did not change the law of Maryland, which required a man to be a citizen of that State or the United States to hold the land. It simply removed the badge of alienage from him that would prevent his holding it, and quoad, this privilege made him a citizen, and the whole question, therefore, turns on whether the treaty-power can remove the badge of alienage