Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1891-04-30

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Constitution, and in conformity with
those limitations, A treaty is no more
the supreme law of the land than is an
act of Congress, as is shown when the
act of Congress yacates pro tanto an in
consistent prior treaty. Whenever,
therefore, an act of Congress would be
unconstitutional, as invading the re-
served rights of a state, treaty to the
same effect would be unconstitutional.
The extent of treaty powers, as ex-
pressed in the Constitution, is unlimited
in terms, except by those restrictions
which are found in that instrument
against the acts of the government or of
any of its departments, and against
those arising from the nature of the
government itself and that of the states.
II would not be contended that the
treaty power extends so far as to author
ize what the Constitution forbids, or
any changes in the character of the
national government or in that of the
states. A departure from the struc-
ture of our institutions, by subjecting
the state governments to the control of
Congress in the exercise of ordinary
and fundamental powers heretofore uni
versally conceded to them, would be as
unwarranted if it were sought to be ac-
complished under the form of treaty
as if it were sought under an tof Con
gress.
Immediately after the promulgation
of the last three amendments to the
Constitution, Congress proceeded to
legislate for their enforcement, but in
the then prevalent sectionalism which
controlled the two houses, the class of
laws called reconstruction measures"
were so colored by the desire to extend
their power beyond the just limits of
the amendments on which they were
professed to be founded, that the
Supreme Court, by series of decisions,
declared the greater part of such legis-
lation to be invalid because it is un-
warranted by the Constitution and de-
structive of the symmetry of our gov
ernment. Under these decisions, while
recognizing fully certain prohibitions
against the action of the states, the
Congress cannot confer jurisdiction over
offences committed by individuals
against other individuals without war
rant of law or in violation of law. In
the case of Cruikshank, Mr.. Justice
Bradley, referring to that part of the
Constitution under discussion, said;
II is guarantee against the exertion Of
arbitrary and tyrannical power on the part
of the government and legislature of the
state, not guarantee against the commits
sion OF individual offences; and the power
of Congress, whether express or implied
to legislate for the enforcement of such
guarantee, does not extend to the passage
of laws for the suppression of crime in
state.
The Supreme Court took the same view
in considering the same case, and said
This provision does not add anything to
the rights Of one citizen as against another.
The duty of protecting all its citizens in the
enjoyment of an equality of rights was
originally assumed by the states and it re-
mains there.
In 1886 one Baldwin, together with
others, was charged with a conspiracy
illegally to deprive certain Chinese sub
jects of equal privileges and immunities
secured to them under existing treaties
with China, and the case came before
the Supreme Court under writ of
habeas corpus. The court sustained its
ruling in the case of the United States
against Harris tone of the series referred
to, decided in 1SS2) saying that that
case had been carefully considered at
the time and that subsequent reflection
had not changed its opinion as therein
expressed. The court decided in the
case before it that "the offence of the
defendants was expressed against the
Chinese people, and not against the
government in its efforts to protect
them" In his dissenting opinion Mr..
Justice Field deplored, as the result of
the decision, that mo national law ex-
lists which can be invoked for the pro-
lection of the subjects of China in their
right to reside and do business in this
country, and that the same result must
follow with reference to similar rights
and privileges of the subjects or citizens
of other nations with which we have
like treaty stipulations,n and declared
that "the only protection against any
forcible resistance to the execution of
these treaty stipulations in their favoris
to be found in the laws of the different
states" But the fact remains that the
treaties are made expressly binding by
the Constitution upon all state Judges,
anything in the Constitution or laws Of
any state to the contrary notwithstand-
ing; and when absolute failure Of Justice
can be shown to have arisen from the
action or non-action of the state
tribunals, then, and not until then, it
will be proper for the executive to con-
slider whether Congress should not in
demnify the injured parties by reason
of the failure of this government to
execute, substantially and in good faith,
the compact entered into with a foreign
nation. AS the measure of Justice and
protection stipulated for in the treaty is
to be the same in the case of foreigners
as in the case of citizens and natives of
this country, it is difficult to see cause
of complaint when the cases of both are
submitted to the same tribunals for
decision.
The principles of law and justice, as
administered in the courts of the United
States and in the courts of the several
states are derived from the same sources,
and both are founded upon those rules
of justice which are recognized in all
civilized countries. The decisions of
those courts are mutually cited as
authority in either and in both. It may
be said Of the judges who preside over
them and of the juries who try in them,
in the words of Chief Justice Taney in
the case of Crandall against Nevada
"For all the great purposes for which
the Federal government was established,
they are one people, with one common
country; they are all citizens of the
United States"
The Federal judges not infrequently
have distinguished themselves by prior
service in the state courts; the personnel
of the bar is the same in both jurisdic-
tions; the juries are drawn at Large from
the same communities, possess the same
qualifications, and not uncommonly
serve alternately in either court The