¹ On this topic see Edward Dumbauld, “John Marshall and the Law of Nations,” 104 U. of Pa. L. Rev. 38 (1955) ; and Benjamin M. Ziegler, The International Law of John Marshall (1939).

² In National City Bank v. Republic of China, 348 U. S. 356 (1955), 49 A.J.I.L. 405 (1955), the Court discussed Marshall’s “classical opinion” in Schooner Exchange v. McFaddon, 7 Cranch 116 (1812). In Tee-Hit-Ton Indians v. United States, 348 U. S. 272 (1955), the Court followed the “great case” of Johnson and Graham’s Lessee v. Mc-Intosh, 8 Wheat. 543 (1823).

³ The term “treaty law” is currently used to denote that part of the domestic, municipal, or internal law of the United States which is created by reason of the legal consequences attached by Art. VI, clause 2, of the Constitution of the United States to international treaties to which the United States is a party.

⁴ Dumbauld, “The Place of Philosophy in International Law,” 83 U. of Pa. L. Rev. 590, 601 (1935). Some writers account for the binding force of customary law by regarding it as a “tacit pact.” Ibid. at 602.

⁵ Art. II, sec. 2; Art. I, sec. 10. Before the adoption of the Constitution, Arts. IX and VI of the Articles of Confederation (which took effect on March 1, 1781, when Maryland signed) contained similar provisions. Virginia ratified the treaty of Feb. 6, 1778, with France on June 3, 1779. James Brown Scott, Sovereign States and Suits before Arbitral Tribunals and Courts of Justice 54–56 (1925).

⁶ This is not surprising, since modern jurists recognize that “law” is made by courts, though judges can legislate, as Holmes said, “only interstitially; they are confined from molar to molecular motion.” Southern Pacific Co. v. Jensen, 244 U. S. 205, 221 (1917). John Chipman Gray thought that all law was judge-made; that statutes merely furnished raw material for the law-making process. See Dumbauld, “Judicial Review and Popular Sovereignty,” 99 U. of Pa. L. Rev. 197, 198 (1950). Proposals to require concurrence of the House of Representatives in the exercise of the treaty-making power were twice rejected by the Constitutional Convention. 2 Farrand, Records of the Federal Convention of 1789, 392–394, 538 (1911).

⁷ Violation of treaty provisions by the States was one of the principal “Vices of the Political System of the United States” listed by Madison in April, 1787. 2 Writings of James Madison 362 (Hunt ed. 1901).

⁸ For the background and development of Art. VI, clause 2, see Dumbauld, “Thomas Jefferson and American Constitutional Law,” 2 J. Pub. Law 370, 379–380, 385–388 (1954).

⁹ Federal judicial power was extended by Art. III, sec. 2 to “cases … arising under … treaties made, or which shall be made” under the authority of the United States. As a practical matter, the creation of Federal courts, and the delegation of the commerce and taxing powers to the central government, were of major importance in effectively curbing the interference of the States in international affairs. In theory, as a matter of law if not in fact, it was already the opinion of Jefferson, Jay, Monroe, and other eminent lawyers of the era that treaties were part of the law of the land and binding on the States even before adoption of the Constitution. Note 8 supra; see also Dumbauld, in Proceedings of the American Society of International Law, 1954, p. 155; Dumbauld, The Political Writings of Thomas Jefferson 133 (1955).

¹⁰ 3 Dall. 199 (1796).

¹¹ Patrick Henry was of counsel for the debtors in the lower court. 3 Henry, Patrick Henry 601–648 (1891).

¹² Art. 4 of the treaty says: “It is agreed that Creditors, on either Side shall meet with no lawful Impediment to Recovery of the full Value in Sterling Money of all bona fide Debts heretofore contracted.” 2 Miller, Treaties and Other International Acts of the United States of America 154 (1931).

¹³ 3 Dall. at 210–215. John Bassett Moore speaks with undue disparagement of Marshall’s argument in this case: “It is not strange that this argument was unsuccessful. While it doubtless was the best that the case admitted of, it may serve to illustrate the right of the suitor to have his case, no matter how weak it may be, fully and fairly presented for adjudication.” 2 The Collected Papers of John Bassett Moore 456 (1944). Justice Cushing thought that Virginia should indemnify the debtor, 3 Dall. at 283. Justice Chase thought that the Federal Government should, because it had sacrificed private rights for the public object of making peace, ibid. 245. Chase interpreted the term “creditors” in the treaty as “a description of persons, and not of their rights.” Ibid. 243. Justice Wilson pointed out that “it is not confined to debts existing at the time of making the treaty; but is extended to debts heretofore contracted.” Ibid. 281. To interpret the treaty as covering extinguished debts it was necessary for the court to resort to general knowledge that when the treaty was made the intent of the negotiators was to afford relief against various types of State laws permitting payment in property, in paper money, and other methods diminishing the economic value to the creditor. Ibid. 238. Marshall’s argument was far from being weak or frivolous.

¹⁴ 2 Beveridge, Life of John Marshall 203–211 (1919). For £14,000 the group acquired 160,000 acres.

¹⁵ 7 Cranch 603 (1813). See 4 Beveridge, op. cit. 147–164 (1919).

¹⁶ Hunter v. Fairfax’s Devisee, 1 Munford 223 (1810). The Virginia court’s refusal to obey the Supreme Court’s mandate evoked spirited political controversy and a further judicial decision in Martin v. Hunter’s Lessee, I Wheat. 304 (1816).

¹⁷ Blackstone describes this as “an inquiry made by the king’s officer … concerning any matter that entitles the king to possession of lands or tenements, goods or chattels.” 3 Commentaries *258.

¹⁸ 7 Cranch at 622.

¹⁹ Ibid. at 627. Marshall wrote to his brother that the decision “is very absurdly put on the treaty of 94.” 4 Beveridge, op. cit. 164. Perhaps he thought that the Peace Treaty of September 3, 1783, should have been relied on as the ground of decision. See Hunter v. Fairfax’s Devisee, 3 Dall. 305 (1796).

²⁰ The letters X, T, and Z were inserted in place of the names of the French emissaries, Hottenguer, Bellamy, and Hauteval, when the dispatches from the United States envoys were published in 1798. War with France seemed imminent when it became known that the American mission had not been officially received, and that a loan or bribe had been solicited by the French as a condition precedent to the commencement of serious negotiations. Pinckney’s irate reply “No, not a sixpence” as it passed from mouth to mouth became the more rhetorical “Millions for defense, but not a cent for tribute.” Federalist plans for war with France received a setback when President Adams, without consulting his party colleagues, announced that he would send another mission to France if assurance were given in advance that it would be received with proper respect for its diplomatic status. Dumbauld, The Political Writings of Thomas Jefferson 197 (1955); 2 Beveridge, Life of John Marshall 256–351 (1916); 2 American State Papers (Foreign Eelations) 157–182 (1832). Letters written to George Washington during Marshall’s sojourn in Europe also contain interesting observations on international affairs. Oster, The Political and Economic Doctrines of John Marshall 154–169 (1914).

²¹ This communication was dated Jan. 27, 1798. 2 Am. State Papers (Foreign Relations) 169–182 (1832).

²² Ibid. at 169. Secretary of State Jefferson had previously declared to the French Minister on June 17, 1793, that by the law of nature, quite apart from treaties, the United States was in a state of peace with all the belligerent Powers. Dumbauld, The Declaration of Independence and What It Means Today 64 (1950).

²³ 2 Am. State Papers (Foreign Relations) 170, 171, 174.

²⁴ Ibid, at 181.

²⁵ 9 Cranch 388 (1815).

²⁶ Ibid. at 427. Story dissented.

²⁷ Art. 15 of the treaty of Oct. 27, 1795, 8 Stat. 146.

²⁸ 9 Cranch at 418, 420.

²⁹ Ibid. at 418–419.

³⁰ Ibid. at 419. Marshall’s rule that the courts must avoid judicial legislation in the case of treaties is illustrated by The Amiable Isabella, 6 “Wheat. 1 (1823), where Story spoke for the Court. Exemption from condemnation was accorded by a treaty to ships sailing with a passport “according to the form annexed to the treaty.” But by accident or design no such form was annexed to the treaty. The Court held that the provision granting exemption was inapplicable.

³¹ 9 Cranch at 399, 422. In his XYZ note, Marshall had himself referred to the same letters of Secretary of State Jefferson cited by counsel in The Nereide, quoted in note 32 infra. 2 Am. State Papers (Foreign Relations) 172 (1832). See text at note 24 supra.

³² “I believe it cannot be doubted, but that by the general law of nations, the goods of a friend found in the vessel of an enemy are free, and the goods of an enemy found in the vessel of a friend are lawful prize. … It is true that sundry nations desirous of avoiding the inconveniences of having their vessels stopped at sea, ransacked, carried into port and detained, under pretence of having enemy goods aboard, have, in many instances, introduced by their special treaties another principle between them, that enemy bottoms shall make enemy goods, and friendly bottoms friendly goods; a principle much less embarrassing to commerce, and equal to all parties in point of gain and loss. But this is altogether the effect of particular treaty, controlling in special cases the general principle of the law of nations, and therefore taking effect between such nations only as have so agreed to control it.” Jefferson to E. C. Genet, July 24, 1793, 7 Works of Thomas Jefferson 457 (P. L. Ford ed., 1904). See also Jefferson to G. Morris, Aug. 16, 1793, ibid. 497.

³³ 9 Cranch at 406, 429. “The attendance of women at arguments before the Supreme Court had … much effect on the performance of counsel at this period … Pinkney especially would become eloquent … if women entered the court-room.” 4 Beveridge, Life of John Marshall 134 (1919). See also 1 Warren, The Supreme Court in United States History 473 (1922). As to Pinkney’s influence on the development of international law, see 2 id. 27.

³⁴ Marshall’s speech is printed in Oster, The Political and Economic Doctrines of John Marshall 225–253 (1914). Regarding this debate, see 2 Beveridge, op. cit. 458–475 (1916).

³⁵ 2 Miller, op. cit. (note 12 supra) 263.

³⁶ Oster, op. cit. (note 34 supra) 228, 233. Even if the mutiny were piracy under the law of nations, punishable by the United States, the murder would not be so punishable, and it was for the murder that Robbins was delivered up. Marshall’s construction of the statutory piracy provisions enacted by Congress was later confirmed by his judicial opinions in U. S. v. Palmer, 3 Wheat. 610 (1818), and U. S. v. Klintock, 5 Wheat. 144 (1820). See also U. S. v. Smith, ibid. 153, and U. S. v. The Pirates, ibid. 184.

³⁷ To the argument that under Art. Ill, sec. 2, the judicial power extends to “all cases, in law and equity, arising under … treaties,” Marshall replied that the case at hand was not one in law or equity, appropriate for judicial determination. That provision did not confer on the courts “any political power whatever.” Oster, op. cit. (note 34 supra) 238. The establishment of an international boundary was mentioned as another instance of a political question. Ibid. 239.

³⁸ Ibid. 247–248.

³⁹ Ibid. 251–252.

⁴⁰ This argument smacks of petitio principii. Marshall advanced it for political reasons.

⁴¹ Art. II, sec. 3.

⁴² Art. VI, clause 2.

⁴³ Art. II, sec. 2, par. 2; Art. II, sec. 3.

⁴⁴ 2 Miller, op. cit. (note 12 supra) 249–251.

⁴⁵ 2 Am. State Papers (Foreign Relations) 486. He considered it obvious that the expression “all cases” in Art. 6 of the treaty meant only those cases submitted to arbitration by the parties. Idid. 387.

⁴⁶ Ibid. 386.

⁴⁷ 2 Miller, op. cit. (note 12 supra) 258–259.

⁴⁸ 2 Am. State Papers (Foreign Relations) 488.

⁴⁹ 2 Pet. 253 (1829).

⁵⁰ Ibid. at 293. Louisiana was ceded by France to the United States on April 30, 1803 (thus prior to plaintiff’s grant) ; while West Florida was not ceded to the United States by Spain until Feb. 22, 1819. Ibid. at 300, 310.

⁵¹ Lyon, Louisiana in French Diplomacy 108, 225 (1934). Marshall said: “The introduction of ambiguous phrases into the treaty, which power might afterwards construe according to circumstances, was a measure which the strong and the politic might not be disinclined to employ.” 2 Pet. at 307.

⁵² Ibid. at 310. Italics supplied.

⁵³ Ibid. There was an exception in the case of three large grants, which were to be treated as void. Marshall and one other Justice would have interpreted this as a “negative pregnant” upholding all other grants. But a majority of the Court thought differently. Ibid. at 313.

⁵⁴ Ibid. at 314.

⁵⁵ Ibid. at 315.

⁵⁶ Ibid. at 307, 309.

⁵⁷ 7 pet. 51 (1833).

⁵⁸ Ibid. at 86. A dictum to the same effect appears in American Ins. Co. v. Canter, 1 Pet. 511, 544 (1828). In Brown v. U. S., 8 Cranch 110, 126 (1814), Marshall held that war does not automatically result in confiscation of enemy property, but merely confers upon the belligerent sovereign a right to confiscate.

⁵⁹ 7 Pet. at 88–89. The Court pointed out that in Foster v. Neilson, 2 Pet. 253 (1829), where the same treaty language was involved, the Court’s attention had not been directed to the discrepancy between the two versions. Not only are the two texts of a treaty to be construed harmoniously, but statutes are to be construed so as not to conflict with international law. Murray v. The Charming Betsey, 2 Cranch 64, 118 (1804) ; Talbot v. Seeman, 1 Cranch 1, 43 (1801).

⁶⁰ 1 Cranch 103 (1801).

⁶¹ 2 Miller, Treaties and Other International Acts of the United States of America 459 (1931).

⁶² 1 Cranch at 107.

⁶³ Ibid. at 108, 110.

⁶⁴ 2 Wheat. 259 (1817).

⁶⁵ Ibid. at 261.

⁶⁶ ibid. at 262.

⁶⁷ Ibid. at 270–271; 2 Miller, op. cit. (note 12 supra) 11.

⁶⁸ 2 Wheat, at 272. The treaty of 1778 was abrogated by the Act of July 7, 1798, 1 Stat. 578, which contained recitals that “the treaties concluded between the United States and France have been repeatedly violated on the part of the French government; and the just claims of the United States for reparation of the injuries so committed have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations, have been repelled with indignity.”

⁶⁹ 2 Wheat, at 272–273. The period expired in July, 1809, four months after suit had been brought by the heirs.

⁷⁰ Ibid. at 274. This was Art. 7 of the Convention of Sept. 30, 1800, Miller, op. cit. (note 12 supra) 462–463.

⁷¹ 2 Wheat, at 275. The treaty contained a restriction that in case the laws of either of the two nations should restrain aliens from the exercise of the rights of property with respect to real estate, “such real estate may be sold, or otherwise disposed of, to citizens or inhabitants of the country where it may be.” Ibid. at 276. “This general power to sell … endures for life,” according to Marshall’s interpretation of the treaty, and supersedes the term of ten years given by the Maryland Act of 1780. Ibid. at 276–277.

⁷² This resulted from what Marshall called an “added article,” but was in reality a condition stipulated in the ratifications exchanged. Miller, op. cit. (note 12 supra) 480, 481.

⁷³ 2 Wheat, at 277–278. In Society for the Propagation of the Gospel in Foreign Parts v. Town of New Haven, 8 Wheat. 464 (1823), where “Washington, J., spoke for the Court, it was held (p. 493) that termination of a treaty does not divest property rights acquired under it, although the Court did not accept the view that all treaties are extinguished by war between the contracting parties (p. 494).

⁷⁴ The same proposition was reiterated in Whitney v. Robertson, 124 U. S. 190, 194 (1888).

⁷⁵ 4 Wheat. 315, 407, 415 (1819).