Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1913-05-22
TREATIES ABOVE LAW.
Professor Moore of the stare Depart
mcnt cites Justice swnync.
CFrom the Tribune Bureau.

Professor Moore, in his capacity as
counsellor Of the department of state, al
though he s. now acting secretary Of
state has furnished President Wilson
with a number Of legal opinions and has
given him a large number of citations of
presidents gcrmane to the situation pre-.
vailing I'm California. The leading opinion
Of the United States supreme cour,.
which he believes clinchss his argument
that treaty stipuations supersede all
state cnactmonts is found in Hauensteln
ngt. Iynham 100 U. S, $3.50, UNFOLDING
| the constitutionaity Of the stipulatons
II the treaty between the United States
! Switzerland of boo This opinion,
y was delivered by Justice Swayne,
'1 part, as follows:
Tine efficacy os the treaty is declared
ana guaranteed by the constitution OF
| the United states. That instrument took
effect on the fourth day Of March, 1883.
In 1896 But few years later, this court
said:
IF doubts could exist before the adop-
/ ton of the present national government,
they must Dc entirely removed oy tine
sixth article Of the constitution, which
provides that all treaties made or which
shall be made under thc authority II
the United States shall be the supreme
law of the land and thc Judges in every
state nhal be bound thereby, anything
in the constitution or laws OF any State
to the contrary Notwithstanding. There
can he 10 Imitation ON the power of
the people of the United States. BY their
| authority the constitution Of the United
| States was established, and they mad the
power to change or abolish tho state con-
stitutions or to make them yield to the
general government and to treaties made
| by their authority. treaty cannot be
the supreme law of the land-that Is, of
| all the United States-if any act of a
/ state Legislature can stand in its way.
! If the constitution of a State (Which is
the fundamental law of the state and
| paramount to its legislature must give
! way to treaty and fall before it, can
1t be questioned whether the less pow
! er, an act of the state Legislature must
| not be PROSTATE? 1t Is the declared will
! Of the people Of the United States that
every treaty made by the authority of
the United States snail he superior tc
the constitution and laws of any individ-
ual state, and their will alone is to de-
eide. If a law Of a State contrary to a
treaty is not void but voidable only by d
repeal or notification by "A State Legis.
Iature. this certain consequence follows
that the will Of a small part of the Uni
ted States may control or defeat the vii
Of the whole. Ware agt Hylton, Dali
1919"
1t will be observed that the treaty max.
ing clause is retroactive as we'll as pro.
spectivc. The treaty in question in War,
apt. Hylton was the British treaty OF
l7S3, which terminated the war of tn,
| American Revolution. 1t was made Will,
the articles of confederation subsiste
The constitution. when adopted, applied
alike to treaties made and to be made. >
PRECEDENT WEIGHTY.
We have quoted from the opinion o
Mr. Justice Chase in that case, not be
cause We concur in everything said il
the extract, but because 1t shows tn,
views Of the powerful legal mind at tina
early period when the debates in tn,
convention which framed the constitu
;ion mast have been fresh in the memoir!
of the leading jurists of the country.
If the national government has not tn,
power to do what is done by suci
treaties it cannot be done Mt all, for the
States are expressly forbidden to "cnte
into any treaty, alliance or confedora
ton" constitution. article /, lO.
1t must always be borne in mind tina
the constitution, laws and treaties of tn,
United States are as much part of tn,