tions so far as it interferes with their efficiency in performing the functions by which they serve the Government.26

§ 90. Protection of the State governments against taxation by the United States.-Half a century after the case of McCulloch v. Maryland had been decided the converse of this question was presented to the Supreme Court in a case involving the right of the United States to lay and collect a tax on the salaries of State officials. The case of the Collector v. Day,27 decided in 1870, arose out of an attempt of a collector of the Internal Revenue of the United States to collect a tax on the salary of a judge of the State of Massachusetts, levied in accordance with certain acts of Congress, passed in 1864, 1865 and 1867. Mr. Justice Nelson in delivering the opinion of the court said, in part: "The case presents the question whether or not it is competent for Congress, under the Constitution of the United States, to impose a tax upon the salary of a judicial officer of the State. In Dobbins v. the Commissioner of Erie County (16 Peters, 435) it was decided that it was not competent for the Legislature of a State to levy a tax upon the salary or emoluments of an officer of the United States. The decision was placed mainly upon the ground that the officer was a means or instrumentality employed for carrying into effect some of the legitimate powers of the government, which could not be interfered with, by taxation or otherwise, by the States, and that the salary or compensation for the service of the officer was inseparably connected with the office; that if the officer as such was exempt the salary assigned for his support or maintenance while holding the office was also, for like reasons, equally exempt.

"These views, we think, abundantly establish the soundness of the decision of the case of Dobbins v. the Commissioners of Erie county, which determined that the States were prohibited, upon a proper construction of the Constitution, from taxing the salary or emoluments of an officer of the Government of the United States. And we shall now proceed to show that upon the

26 Western Union Telegraph Co. v. Attorney General, 125 U. S., 530.

11 Wallace, 113.

same construction of that instrument, and for like reasons, that government is prohibited from taxing the salary of the judicial officer of a State.

"It is a familiar rule of construction of the Constitution of the Union that the sovereign powers vested in the State governments by their respective constitutions remained unaltered and unimpaired, except so far as they were granted to the Government of the United States. That the intention of the framers of the Constitution in this respect might not be misunderstood this rule of interpretation is expressly declared in the Tenth Article of the Amendments, namely: "The powers not delegated to the United States are reserved to the States, respectively, or to the people.' The Government of the United States cannot claim powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given or given by necessary implication.

"The general Government, and the States, although both exist within the same territorial limits, are separate and distinct within their respective spheres. The former in its appropriate sphere is supreme, but the States within the limits of the powers, not granted, or in the language of the Tenth Amendment 'reserved' are as independent of the general Government as that government within its sphere is independent of the States."

Thus in the case of the Collector v. Day, the Supreme Court protected the States against the Federal taxation or interference, as in McCulloch-Maryland and Dobbins v. Commissioners of Erie County-it has protected the United States against State taxation or interference. These decisions, taken in conjunction, firmly established the general principle that each government, Federal or State, in its proper sphere, must be held independent of the control of the other, and more particularly decide that neither government can directly or indirectly tax the other.

§ 91. How far is a State bound by treaties made by the National Government?-Just as the writing of this book is being completed public interest has been aroused on the question as to how far a State is bound by the treaties made by the Federal Government.

Constitutional provisions on this question are few and brief,

the only provisions bearing on the subject of the treaties being the following:

Art. I, Sec. 10, Cl. 1: "No State shall enter into any treaty, alliance or confederation

*

*

Art. II, Sec. 11, Cl. 2: "He (the President) shall have power by and with the consent of the State, to make treaties, provided, two-thirds of the Senators present concur; ** * *""

Art. VI, Cl. 2: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

This treaty-making power of the new Government was first considered by the Supreme Court in 1796, the case being that of Ware, Administrator, v. Hylton et al.28 The facts in this case, as shown in the decision were as follows: The defendants in error, Citizens of Viriginia, on July 7, 1774, gave their penal bond to the firm of Farrell and Jones, an English firm, for the payment of £2,976-11-6, British money. On October 20, 1777, the Legislature of the Commonwealth of Virginia passed a law to sequester British property. In the third section of the law. it was enacted "that it should be lawful for any citizen of Virginia owing money to a subject of Great Britain to pay the same, or any part thereof, from time to time, as he should think fit, into the loan office, taking thereout a certificate for the same, in the name of the creditor, with an indorsement, under the hand of the commissioner of said office, expressing the name of the payer; and shall deliver such certificate to the governor and the council, whose receipt shall discharge him from so much of the debt. And the governor and the council shall, in like manner, lay before the general assembly once in every year an account of these certificates, specifying the names of the persons by, and for whom, they were paid; and shall see to the safe keeping of the same; subject to the future directions of the Legislature; provided, that the governor and the

council may make such allowance, as they shall think reasonable, out of the interest of the money so paid into the loan office, to the wives and children, residing in the State, of such creditor." On April 16, 1780, the defendants in error paid into the loan office of Virginia part of their debts, $3,111 1-9, equal to £933-14-0, and obtained a certificate from the commissioners of the loan office and a receipt from the governor and the council of Virginia. The defendants in error being sued, on the above bond, in the Circuit Court of Virginia, pleaded the above law, and the above mentioned payment in bar of the plaintiff's debt, pro tanto. The plaintiff, in a replication, set up the fourth article of the treaty of peace made in 1783 between England and the United States, which provided that: "It is agreed that creditors, on either side, shall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts, heretofore contracted." A demurrer to this replication was sustained by the Circuit Court.

The Supreme Court in their opinion held that: (1) The State of Virginia had the power to pass the above mentioned law confiscating debts; (2) the United States had the power to make the treaty referred to, including the said fourth article; (3) the treaty annulled the State statute; (4) British creditors could recover against their debtors who had paid their debts to the State of Virginia and received a discharge therefore; (5) the State of Virginia could not be compelled to reimburse such debtors, although justice required that such reimbursement should be made. The decision contains strong affirmations of the authority of treaties. Justice Chase in his opinion says: "A 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." And, again, "I have already proved that a treaty can totally annihilate any part of the Constitution of any of the individual States, that is, contrary to a treaty."

The treaty of September 3, 1783, was made under the authority of the Articles of Confederation, the ninth article of which says, in part: "The United States in Congress assembled shall have the sole and exclusive right and power of * * entering into treaties and alliances, provided that no treaty of com

merce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever." In spite, however, of this self-evident fact, that this treaty was made under the authority of the Articles of Confederation, and not under that of the Constitution, the question was mainly discussed by the judges under the provisions of the Constitution.

.In Chiroc v. Chiroc29 it was held that a treaty with France gave to her citizens the right to purchase and hold land in the United States, removed the incapacity of alienage, and placed them in precisely the same situation as if they had been citizens of this country, regardless of any State statutes to the conrary. The same doctrine was reaffirmed as to this same treaty in Carneal v. Banks,30 and with respect to the British treaty of 1794, in Hughes v. Edwards.31

The authority of treaties was again upheld in the case of Hauenstein v. Lynham.32 Solomon Hauenstein, a citizen of Switzerland, but a resident of the State of Virginia, died at Richmond in 1861, possessed of considerable real property situated in the State of Virginia. An inquisition of escheat was brought on behalf of the State, under the existing State statutes. This action was resisted by the plaintiffs in error, relatives of the deceased and citizens of Switzerland, who claimed the property under the provisions of the fifth article of the treaty of November 25, 1850, between the United States and the Swiss Confederation.

The first part of this article was devoted to personal property, and gave the fullest power to the citizens of each country touching such property belonging to them in the other, including the power to dispose of it as the owner might think proper. It then proceeded as follows:

"The foregoing provisions shall be applicable to real estate situated within the States of the American Union, or within the cantons of the Swiss Confederation, in which foreigners

292 Wheaton, 259..

10 Wheaton, 181.

319 Wheaton, 489.

2 100 U. S., 483.