Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/704

notorious, that treaty stipulations (especially those of the treaty of peace of 1783) were grossly disregarded by the states under the confederation. They were deemed by the states, not as laws, but like requisitions, of mere moral obligation, and dependent upon the good will of the states for their execution. Congress, indeed, remonstrated against this construction, as unfounded in principle and justice.^[1] But their voice was not heard. Power and right were separated; the argument was all on one side; but the power was on the other.^[2] It was probably to obviate this very difficulty, that this clause was inserted in the constitution;^[3] and it would redound to the immortal honour of its authors, if it had done no more, than thus to bring treaties within the sanctuary of justice, as laws of supreme obligation.^[4] There are, indeed, still cases, in which courts of justice can administer no effectual redress: as when the terms

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treaty," said the Supreme Court, in Foster v. Neilson, 2 Peters's R. 314, "is in its nature a contract between two nations, not a legislative act. It does not generally effect of itself the object to be accomplished, especially so far, as its operation is infraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is consequently to be regarded by courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision."

1. Circular Letter of Congress, 13th April, 1787; 12 Journ. of Congress, 32 to 30.
2. See the opinion of Iredell J. in Ware v. Hylton, 3 Dall. 270 to 277.
3. Id. 276, 277. See Journal of Convention, p. 222, 282, 283, 293.
4. The importance of this power has been practically illustrated by the redress afforded by courts of law in cases pending before them upon treaty stipulations. See United States v. The Peggy, 1 Cranch, 103; Ware v. Hylton, 3 Dall. R. 199, 244, 261; United States v. Arradondo, 6 Peters's R. 691; Soulard v. Smith, 4 Peters's Sup. R. 511; Case of Jonathan Robbins, 1 Hall's Journ. of Jurisp. 25; Bees Adm'rs Rep. 263; 5 Wheat. Rep. App.