THE

TREATY-MAKING POWER

OF THE

UNITED STATES·

BY

CHARLES HENRY BUTLER

OF THE NEW YORK BAR

VOL. II.

T III. JUDICIAL DECISIONS AFFECTING THE TREATY-MAKING POWER
OF THE UNITED STATES, ITS EXTENT AND APPLICATION

LIBRARY

OF HE

UNIVERSITY

CALIFOR

THE BANKS LAW PUBLISHING CO.

21 MURRAY STREET, NEW YORK

1902

Copyright, 1902,

BY THE BANKS LAW PUBLISHING CO.

TABLE OF CONTENTS

OF

VOLUME II.

PART III.

JUDICIAL DECISIONS AFFECTING THE TREATY-MAKING POWER OF

THE UNITED STATES, ITS EXTENT AND APPLICATION.

CHAPTER XI.

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

2

320-Views of members of Constitutional Convention not always

followed by courts....

321-Construction and effect of constitutional provisions to be

determined by courts; President Jackson's views as to

personal construction....

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

treaty-making power..............

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....

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

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

ions delivered. . . . . .

326-Opinions of Justices Chase and Paterson...

327-Opinions of Justices Wilson and Cushing.

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

5

5

6

7

8

9

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

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

331—Fairfax vs. Hunter; Justice Story's opinion; State law and

treaties, 1812.......

10

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

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

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................

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

volved..

169510

SECTION

PAGE

25

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

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

339-Interference of Federal judiciary to protect treaty rights

of aliens......

340-Oregon statute prohibiting employment of Chinese laborers

declared void...

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

declared void..........

342-California anti-Chinese statutes declared void..

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

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

345-Numerous other decisions involving Chinese treaties and

346-Great practical advantages of Federal Judiciary as a forum

for settling disputes as to treaty rights.....

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

to their sanctity; Indian treaties and State laws..

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

349-The rule in New York....

26

26

352-The rule in Tennessee...

45

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....

358-California decisions in conflict with general rules....

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

with treaty stipulations..

CHAPTER XII.

DECISIONS OF FEDERAL COURTS IN REGARD TO THE RELATIVE EFFECT

OF TREATY STIPULATIONS AND CONGRESSIONAL ACTION, PAGES 63-148.

SECTION

360-Decisions in preceding chapter relate to State legislation... 64

361-Different rules applicable to questions arising from conflict-

ing treaty stipulations and Congressional legislation..... 64

362-Different resulting effects of Congressional action upon trea-
ties classified....

363-Necessity of legislation to make treaties effectual...

364-Treaties as contracts and as laws; Chief Justice Marshall's

views in Foster vs. Neilson......

365-Treaties when self-operating and when legislation required..

366-Treaty stipulations and tariff statutes..

367-Taylor vs. Morton; opinion of Justice Curtis..

SECTION

PAGE

68

363-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..

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...

373—Turner vs. Am. 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

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

376-Rights of individuals under treaty stipulations; Head Money

cases...

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

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

bacco; Justice Swayne's opinion............

379-Statutes which violate treaties; difference between State

and United States statutes in this respect; the Chinese

Exclusion Laws.....

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 Exclusion case, 95; 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.

71

76

78

79

81

82

84

84

87

....... 102

380-Wide scope of decisions in Chinese Exclusion cases.......
381-Summary of decisions in cases involving Congressional legis-

lation as to Chinese immigration....

382-Termination of war by treaty of peace.

108

123

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

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

Justice Field's opinion in the Ross case..

390-Congressional legislation to carry out treaty stipulations;

391-The construction of treaties....

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

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

rocity statutes and treaties, 148.

139

144