with insult, afford such extreme ground of complaint as to impose on the aggrieved nation the necessity of considering that act as an indignity, and of resorting to war as the only alternative for sustaining her character. The refusal of the British House of Commons to carry into effect the commercial treaty of Utrecht with France has already been alluded to. I beg leave to remind you of another instance:

"By the treaty of 1794, between America and England, the United States bound themselves to pay to British subjects the amount of the British debts which had been lost by reason of laws passed by several States in contravention of the provisions of the treaty of 1783. And it was expressly provided by that of 1794 that the amount thus payable by the United States should be definitely settled by a joint commission consisting of four members, and, in case of disagreement between these, by a fifth commissioner, chosen by the four primitive members of the board."

Mr. Gallatin to Mr. Everett, January, 1835. 2 Gallatin's Writings, 497. See 6 Jeff. Works, 557, for a memorandum of Mr. Jefferson, dated Mar. 13, 1816, as to the power of a treaty to modify a pre-existing law.

"By the Federal Constitution the several States retained all the attributes of sovereignty which were not granted to the General Government. The right of regulating successions in relation to the subject in question is not among those conceded rights; consequently it was reserved to, and is still vested in, the several States. But by the same Constitution it is provided that treaties made under the authority of the General Government shall be the supreme law of the land, anything in the constitution or laws of a State to the contrary notwithstanding.

"This very brief exposition shows at once the cause of the want of comity in the laws of the United States to which you advert, and indicates the remedy which a treaty between the two nations would effectually apply."

Mr. Livingston, Sec. of State, to Mr. de Sacken, June 13, 1831. MSS. Notes, For.
Leg.

"The Government of the United States presumes that whenever a treaty has been duly concluded and ratified by the acknowledged authorities competent for that purpose, an obligation is thereby imposed upon each and every department of the Government to carry it into complete effect, according to its terms, and that on the performance of this obligation consists the due observance of good faith among nations."

Mr. Livingston, Sec. of State, to Mr. Serurier, June 3, 1833. MSS. Notes. For. Leg. See also Mr. McLane, Sec. of State, to Mr. Serurier, Sept. 5, 1833; ibid. But see supra § 131a.

"From the beginning and throughout the whole existence of the Federal Government, it [the treaty-making power] has been exercised constantly on commerce, navigation, and other delegated powers, to the almost entire exclusion of the reserved, which, from their nature, rarely ever come in question between us and other nations. 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 subject-matter be comprised among the delegated or the reserved powers. So far, in leed, is it from being true, as the report supposes, that the mere fact of a power being delegated to Congress ex. cludes it from being the subject of treaty stipulations, that even its exclusive delegation, if we may judge from the habitual practice of the Government, does not-of which the power of appropriating money af fords a striking example. It is expressly and exclusively delegated to Congress, and yet scarcely a treaty has been made of any importance which does not stipulate for the payment of money. No objection has ever been made on this account. The only question ever raised in reference to it is, whether Congress has not unlimited discretion to grant or withhold the appropriation."

Mr. Calhoun, Sec. of State, to Mr. Wheaton, June 28, 1844. MSS. Inst., Prussia. "The Constitution is to prevail over a treaty where the provisions of the one come in conflict with the other. It would be difficult to find a reputable lawyer in this country who would not yield a ready assent to this proposition."

Mr. Marcy, Sec. of State, to Mr. Mason, Sept. 11, 1854. MSS. Inst., France. "In reply, the undersigned hastens to inform Mr. Aspurúa that it is believed not to be competent to the treaty-making power of the United States to enter into such an engagement as that contained in the twentyfifth article of the convention concluded at Caracas on the 20th day of September by the plenipotentiaries of Venezuela and the United States, viz:

"Whenever one of the contracting parties shall be engaged in war with another state, no citizen of the other contracting party shall accept a commission or letter of marque for the purpose of assisting or co-operating hostilely with the said enemy against the said party so at war, under the pain of being considered as a pirate.'

"The Constitution of the United States provides that Congress shall 'define and punish piracies and felonies committed on the high seas.' Although several conventions have been made by this Government with foreign Governments, some of which still continue in force, containing, in substance, the stipulation just quoted, they were evidently contracted by an oversight of one of the provisions of the Constitution-the supreme law of this country. The President, entertaining this opinion, cannot consent to transmit the convention negotiated by Mr. Eames, which in all other respects meets with his approval, to the Senate for ratification without presenting to that body his objections to the article aforementioned."

Mr. Marcy, Sec. of State, to Mr. Aspurúa, Nov. 15, 1854, MSS. Notes, Venez,

"It is not, as you will perceive by examining Mr. Drouyn de L'Huys's dispatch to the Count de Sartiges, the application of the principle' to the particular case of M. Dillon which is to be disavowed, but the broad and general proposition that the Constitution is paramount in authority to any treaty or convention made by this Government. This principle, the President directs me to say, he cannot disavow, nor would it be candid in him to withhold an expression of his belief that if a case should arise presenting a direct conflict between the Constitution of the United States and a treaty made by authority thereof, and be brought before our highest tribunal for adjudication, the court would act upon the principle that the Constitution was the paramount law."

Mr. Marcy, Sec. of State, to Mr. Mason, Jan. 18, 1855. MSS. Inst., France. "A mere declaration by a congress of the representatives of a few powers would hardly be a proper instrument to send to the Senate for ratification. If it came from each Government in an authentic form the difficulty might perhaps in that way be got over. Then it would assume the character of a contract, and a treaty is nothing more. I do not see that the provisions of the declaration of the Paris conference, amended as this Government has proposed, could embarrass the Government of the Emperor of the French in the way you apprehend. The amendment does not require France to go aside from the declaration; it goes a little beyond that declaration, but precisely in the same direction. The proposed treaty would contain all of the declaration. The engage. ment of the Imperial Government, with the other signatory powers, is not to negotiate on maritime rights without embracing the principles of the declaration, and that engagement would not in the slightest degree be departed from by the proposed treaty."

Mr. Marcy, Sec. of State, to Mr. Mason, Dec. 8, 1856. MSS. Inst., France. "The estates of decedents are administered upon and settled in the United States under the laws of the State of which the decedent was a resident at the time of his death, and on this account, in the absence of any treaty regulations on the subject, interference in the disposition of such measures as may be prescribed by the laws of the particular State in such cases is not within the province of the Federal authorities."

Mr. Fish, Sec. of State, to Aristarchi Bey, May 19, 1874. MSS. Notes, Turkey. "Provisions of treaties and of statutes are made by the Constitution alike the supreme law of the land, and such law remains in full force and equally binding until repealed, abrogated, or set aside by competent authority.

"But it is difficult to deduce from the Constitution or elsewhere any standard by which to measure the relative weight to be accorded to law, when made by the negotiation of a treaty, over that made by enacting a statute.

"It has been held quite frequently that a subsequent treaty supersedes an act of Congress with which it is in conflict, as in Ware v. Hylton, 3 Dall., 199; Dean ex dem. Fisher v. Harnden, 1 Paine C. C., 55; and the converse that an act of Congress subsequent to a treaty must be enforced as the supreme law of the land, although in violation of the provisions of the treaty, has been held quite frequently. (Taylor v. Morton, 2 Curtis C. C., 454; Ropes v. Clinch, 8 Blatch, 304; The Clinton Bridge, 1 Woolworth, 150; The Cherokee Tobacco Cases, 11 Wall., 616.)

"You consider the decision in the Cherokee tobacco cases, however, obiter, because the treaty was an Indian treaty. Still the general question was distinctly passed on by the court, and no such question was there raised, and it has been decided on legal authority that a treaty with Indian tribes has the same dignity and effect as a treaty with a foreign power, being a treaty within the meaning of the Constitution, and the supreme law of the land. (Turner v. The American Baptist Missionary Union, 5 McL. C. C., 344.)

"Mr. Crittenden, while Attorney-General, held, in reference to the Florida claims, that an act of Congress is as much a supreme law of the land as a treaty. They are placed on the same footing, and no preference or superiority is given to the one over the other.' (5 Op. Att. Gen., 345.)

"In the general discussion of the question in the early cases, such as the United States v. The Schooner Peggy, 1 Cranch, 103, and Foster v. Neilson, 2 Pet., 253, a treaty is considered as equivalent, not superior, to an act of Congress.

"Judge Story, too, declares that treaties are subject to legislative enactment; and Judge Cooley, in his edition, and in a note to Judge Story's text, states the rule very broadly that an act of Congress may supersede a prior treaty.

"In a strict legal sense the difficulty lies in considering law, when enacted, regardless of the method of enactment, as other than binding in the highest degree.

"Of course, in speaking of the effect of subsequent legislation upon the provisions of a prior treaty, I refer only to the effect in the country where the legislation is enacted, and upon the officers and people of that country.

"The foreign nation whose rights are invaded thereby has no less cause of complaint and no less right to decline to recognize any in⚫ternal legislation which presumes to limit or curtail rights accorded by treaty."

Mr. Fish, Sec. of State, to Mr. Cushing, July 20, 1876. MSS. Inst., Spain. See supra, § 9.

"The result of several late decisions in this country, as well as two at least of the opinions of the Attorneys-General, seem to lead to the

conclusion that an act of Congress of later date than a treaty, although in violation of its terms, must be obeyed as municipal law within the country, although in no manner binding on the foreign state, and although it in no manner affords a sufficient excuse for a violation of treaty provisions."

Mr. Fish, Sec. of State, to Mr. Cushing, Feb. 13, 1877; adopting same to same,
July 20, 1876. MSS. Inst., Spain. See supra, § 9.

"This is not a case where domestic laws override the provisions of a treaty, but where a treaty depends on domestic laws to give it effect; and those domestic laws, and the judgment interpreting them, must of necessity be the sole guidance of the Executive in its execution. Although a foreign treaty is, by the Constitution of the United States, in like manner with acts of Congress and the Constitution, the supreme law of the land, yet generally it does not execute itself, but requires some legislation, especially under a republican form of government, to carry it into effect. Chief-Justice Marshall clearly explains the rule as to the relation between treaty and statutory law, when he says that a treaty 'is to be regarded in courts of justice as equivalent to an act of the legislature whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial, department, and the legislature must execute the contract before it can become a rule for the court.""

Mr. F. W. Seward, Acting Sec. of State, to Mr. Mendez, June 28, 1879. MSS.
Notes, Spain.

A treaty, if within the treaty-making power, overrides State legislation.

Ware v. Hylton, 3 Dall., 199; Fisher v. Harnden, 1 Paine, 55; Hauenstein v.
Lynham, 100 U. S., 483.

The execution of a treaty between nations is to be demanded from, and, in general, superintended by, the executive of each nation, and, therefore, whatever the decision of the court may be relative to the rights of parties litigating before it, the claim upon the nation, if unsatisfied, may still be asserted. But yet where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights, and is as much to be regarded by the court as an act of Congress; and, although restoration may be an executive act, yet to condemn a vessel, the restoration of which is directed by a law of the land, would be a direct infraction of that law, and consequently improper.

U. S. v. The Peggy, 1 Cranch, 109.

The convention of 1800, between France and the United States, enabling the people of one country holding lands in the other to dispose