Missouri vs. Holland [1920] - History

Missouri vs. Holland [1920] - History


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HOLMES, J. This is a bill in equity brought by the State of Missouri to prevent a game warden of the United States from attempting to enforce the Migratory Bird Treaty Act of July 3, 1918, and the regulations made by the Secretary of Agriculture in pursuance of the same. The ground of the bill is that the statute is an unconstitutional interference with the rights reserved to the States by the Tenth Amendment, and that the acts of the defendant done and threatened under that authority invade the sovereign right of the State and contravene its will manifested in statutes. The State also alleges a pecuniary interest, as owner of the wild birds within its borders and otherwise, admitted by the government to be sufficient, but it is enough that the bill is a reasonable and proper means to assert the alleged quasi sovereign rights of a State. A motion to dismiss was sustained by the district court on the ground that the act of Congress is constitutional. The State appeals.

On December 8, 1916, a treaty between the United States and Great Britain was proclaimed by the President. It recited that many species of birds in their annual migrations traversed certain parts of the United States and of Canada, that they were of great value as a source of food and in destroying insects injurious to vegetation, but were in danger of extermination through lack of adequate protection. It therefore provided for specified closed seasons and protection in other forms, and agreed that the two powers would take or propose to their law-making s bodies the necessary measures for carrying the treaty out. The above mentioned Act of July 3, 1918, entitled an act to give effect to the convention, prohibited the killing, capturing or selling any of the migratory birds included in the terms of the treaty except as permitted by regulations compatible with those terms, to be made by the Secretary of Agriculture. Regulations were proclaimed on July 31, and October 25, 1918. It is unnecessary to go into any details, because, as we have said, the question raised is the general one whether the treaty and statute are void as an interference with the rights reserved to the States.

To answer this question it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because by Article II, §2, the power to make treaties is delegated expressly, and by Article VI treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land. If the treaty is valid there can be no dispute about the validity of the statute under Article I, §S, as a necessary and proper means to execute the powers of the Government. The language of the Constitution as to the supremacy of treaties being general, the question before us is narrowed to an inquiry into the ground upon which the present supposed exception is placed.

It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do. An earlier act of Congress that attempted by itself and not in pursuance of a treaty to regulate the killing of migratory birds within the States had been held bad in the District Court. United States v. Shauver, 214 Fed. Rep. lS4; United States v. McCullagh, 221 Fed. 288. Those decisions were supported by arguments that migratory birds were owned by the States in their sovereign capacity for the benefit of their people, and that under cases like Geer v. Connecticut, 161 U. S. 519, this control was one that Congress had no power to displace. The same argument is supposed to apply now with equal force.

Whether the two cases cited were decided rightly or not they cannot be accepted as a test of the treaty power. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, "a power which must belong to and somewhere reside in every civilized government" is not to be found. Andrews v. Andrews, 188 U. 14. What was said in that case with regard to the powers of the States applies. with equal force to the powers of the nation in cases where the States individually are incompetent to act. We are not yet discussing the particular case before us but only are considering the validity of the test proposed. .. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved.

The State as we have intimated founds its claim of exclusive authority upon an assertion of title to migratory birds, an assertion that is embodied in statute. No doubt it is true that as between a State and its inhabitants the State may regulate the killing and sale of such birds, but it does not follow that its authority is exclusive of paramount powers. To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone; and possession is the beginning of ownership. The whole foundation of the State's rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State and in a week a thousand miles away. If we are to be accurate we can- l not put the case of the State upon higher ground than that the treaty deals with creatures that for the moment are within the state borders, that it must be carried out by officers of the United States within the same territory, and that but for the treaty the State would be free to regulate this subject itself.

As most of the laws of the United States are carried out within the States and as many of them deal with matters which in the silence of such laws the State might regulate such general grounds are not enough to support Missouri's claim. Valid treaties of course "are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States." Baldwin v. Franks, 120 U. 678. No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power. We do not have to invoke the later developments of constitutional law for this proposition; it was recognized as early as Ho Kirk v. Bell, 3 Cranch, 454, with regard to statutes of limitation, and even earlier, as to confiscation in Ware v. Hylton, 3 Dall. 199.... Further illustration seems unnecessary, and it only remains to consider the application of established rules to the present case.

Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitory within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to truly upon the States. The reliance is valid and were it otherwise, the question is wheth the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld.

Decree affirmed. Justices VAN DEVANTER and PITNEY dissented.


Missouri v. Holland

The case centered on the constitutionality of the Migratory Bird Treaty Act of 1918, which prohibited the killing, capturing, and selling of certain migratory birds pursuant to an earlier treaty between the U.S. and the United Kingdom. The state of Missouri challenged the enforcement of the Act within its jurisdiction, arguing that the regulation of game was not expressly delegated by the U.S. Constitution to the federal government, and was therefore reserved for the states under the Tenth Amendment accordingly, the U.S. government had no constitutional right to enter into a treaty concerning game regulation. [2]

In a 7–2 decision, the Court upheld the Act as an exercise of the federal government's treaty power, with the supremacy clause of the Constitution elevating treaties above state law. The Court also reasoned that protecting wildlife was in the national interest and could only be accomplished through federal action. [1]

Missouri is also notable for Justice Oliver Wendell Holmes's reference to the legal theory of a living constitution, the notion that the Constitution changes over time and adapts to new circumstances without formal amendments. [3]


Missouri v. Holland and Historical Textualism

A longstanding debate, recently reinvigorated, is whether the U.S. Constitution imposes subject matter limitations on federal treatymaking akin to the limits it places, through Article I, Section 8, on federal legislation. That debate was supposedly settled in favor of substantively unlimited treatymaking power by the U.S. Supreme Court in Missouri v. Holland (1920), but leading "originalist" accounts contend that the Constitution's original meaning supports a contrary result.

This essay defends Holland's conclusion against its originalist detractors, not so much as a matter of history but as a matter of methodology. It outlines and applies an approach it calls "historical textualism" as a way to determine the Constitution's original meaning. In brief, historical textualism focuses on the specific words of the Constitution's text as they were situated and understood in the context in which they were written. Among other things, historical textualism discounts structural or "framers' intent" arguments not tied to the meaning of particular phrases and abstract textual arguments not tied to understandings of particular phrases reflected in the historical record. Although receptive to arguments based on drafting, ratification and post-ratification understandings, it is most interested in how relevant phrases were used and understood prior to the Constitutional Convention or in contexts not directly implicating the particular controversy at issue.

Applying this idea of historical textualism, this essay finds that the Constitution's original meaning finds fully supports Holland's conclusion that the treatymaking power is not substantively limited. Its contrast with other originalist analyses finding subject matter limits on federal treatymaking underscores the differences between historical textualism other approaches for determining historical meaning.

Keywords: originalism, textualism, treaty power, treatymaking


The first permanent settlement at Holland was made in 1871. [6] The area experienced growth with the arrival of the St. Louis–San Francisco Railway in 1901. [6] The town site was platted in 1902, and most likely was named after J. W. Holland, an early settler. [7] A post office called Holland has been in operation since 1900. [8]

According to the United States Census Bureau, the city has a total area of 0.17 square miles (0.44 km 2 ), all land. [10]

Historical population
Census Pop.
1910135
1920530 292.6%
1930289 −45.5%
1940390 34.9%
1950409 4.9%
1960403 −1.5%
1970329 −18.4%
1980295 −10.3%
1990237 −19.7%
2000246 3.8%
2010229 −6.9%
2019 (est.)197 [3] −14.0%
U.S. Decennial Census [11]

2010 census Edit

As of the census [2] of 2010, there were 229 people, 98 households, and 62 families living in the city. The population density was 1,347.1 inhabitants per square mile (520.1/km 2 ). There were 112 housing units at an average density of 658.8 per square mile (254.4/km 2 ). The racial makeup of the city was 93.01% White, 0.44% Native American, 3.49% from other races, and 3.06% from two or more races. Hispanic or Latino of any race were 5.68% of the population.

There were 98 households, of which 27.6% had children under the age of 18 living with them, 42.9% were married couples living together, 14.3% had a female householder with no husband present, 6.1% had a male householder with no wife present, and 36.7% were non-families. 33.7% of all households were made up of individuals, and 13.3% had someone living alone who was 65 years of age or older. The average household size was 2.34 and the average family size was 2.89.

The median age in the city was 42.2 years. 22.7% of residents were under the age of 18 4.8% were between the ages of 18 and 24 25.4% were from 25 to 44 30.2% were from 45 to 64 and 17% were 65 years of age or older. The gender makeup of the city was 55.0% male and 45.0% female.

2000 census Edit

As of the census [4] of 2000, there were 246 people, 96 households, and 71 families living in the town. The population density was 1,424.3 people per square mile (558.7/km 2 ). There were 112 housing units at an average density of 648.5 per square mile (254.4/km 2 ). The racial makeup of the town was 93.90% White, 2.44% African American, 0.41% Native American, 3.25% from other races. Hispanic or Latino of any race were 3.66% of the population.

There were 96 households, out of which 31.3% had children under the age of 18 living with them, 54.2% were married couples living together, 10.4% had a female householder with no husband present, and 26.0% were non-families. 24.0% of all households were made up of individuals, and 12.5% had someone living alone who was 65 years of age or older. The average household size was 2.56 and the average family size was 2.90.

In the town the population was spread out, with 25.2% under the age of 18, 9.3% from 18 to 24, 26.8% from 25 to 44, 21.5% from 45 to 64, and 17.1% who were 65 years of age or older. The median age was 39 years. For every 100 females there were 106.7 males. For every 100 females age 18 and over, there were 104.4 males.

The median income for a household in the town was $35,278, and the median income for a family was $36,875. Males had a median income of $35,417 versus $20,000 for females. The per capita income for the town was $12,524. About 9.8% of families and 12.7% of the population were below the poverty line, including 7.3% of those under the age of eighteen and 21.7% of those 65 or over.


Missouri vs. Holland [1920] - History

The Lacey Act took effect as the first federal law protecting game it prohibited the interstate shipment of illegally taken wildlife, and the importation of injurious species. Enforcement of this Act became the responsibility of the Division of Biological Survey, U.S. Department of Agriculture.

The Division of Biological Survey became the Bureau of Biological Survey and remained in the Department of Agriculture.

The Federal Migratory Bird Law (Weeks-McLean Law) became effective, and the first migratory bird hunting regulations were adopted on October 1.

The United States signed the Migratory Bird Treaty with Great Britain (acting for Canada), recognizing migratory birds as an international resource.

The Migratory Bird Treaty Act became law, making it unlawful to take, possess, buy, sell, purchase, or barter any migratory bird. The Act's prohibitions applied to the feathers, parts, nests, and eggs of these birds.

In the case of Missouri vs. Holland, 252 U. S. 416, the United States Supreme Court upheld the constitutionality of the Migratory Bird Treaty Act "establishing beyond question the supremacy of the federal treaty-making power as a source of authority for Federal wildlife regulation." Citing the state ownership doctrine, Missouri had filed suit to prevent a U.S. game warden from enforcing the Act within the state.

The Black Bass Act became law, making it illegal to transport in interstate commerce black bass taken, purchased, or sold in violation of state law.

The Migratory Bird Hunting Stamp Act became law, requiring all waterfowl hunters aged 16 and over to possess a "Duck Stamp." A Division of Game Management was created in the Bureau of Biological Survey, Department of Agriculture, with responsibility for wildlife law enforcement.

The Lacey Act was expanded to prohibit foreign commerce in illegally taken wildlife.

The United States signed the Migratory Bird Treaty with Mexico.

The Bureau of Biological Survey, Department of Agriculture, and the Bureau of Fisheries, Department of Commerce, were transferred to the U.S. Department of the Interior.

The Bald Eagle Protection Act became law, prohibiting a variety of activities involving the species, including import, export, take, sale, purchase, or barter. The Bureau of Biological Survey and the Bureau of Fisheries were combined to form the Fish and Wildlife Service, Department of the Interior. All law enforcement responsibilities continued to reside in the Division of Game Management.


Historical Developement of Wildlife Law Enforcement in the United States Continued:


Treaties & States

LOK SABHA, DECEMBER 27: Finance Minister Pranab Mukherjee speaks during the debate on the Lokpal Bill. At left is Congress president Sonia Gandhi. Mukherjee clarified during the speech: "There will be no assault on the federal structure because we are going to bring an amendment. that without the consent of the State government the notification under Section (1) and (4) will not be issued." An overriding proviso in Clause 1(4) of the Bill, which empowers the government to bring the Act in force, reads thus: "Provided that the provisions of this Act shall be applicable to a State which has given its prior consent to the application of this Act."-LOK SABHA, DECEMBER 27: Finance Minister Pranab Mukherjee speaks during the debate on the Lokpal Bill. At left is Congress president Sonia Gandhi. Mukherjee clarified during the speech: "There will be no assault on the federal structure because we are going to bring an amendment. that without the consent of the State government the notification under Section (1) and (4) will not be issued." An overriding proviso in Clause 1(4) of the Bill, which empowers the government to bring the Act in force, reads thus: "Provided that the provisions of this Act shall be applicable to a State which has given its prior consent to the application of this Act."

On international treaties and the rights of the States of the Indian Union in the context of the setting up of a Lokpal and Lokayuktas.

TOWARDS the end of the proceedings in the Lok Sabha on the Lokpal and Lokayuktas Bill, 2011, on December 27, the government moved an amendment which, if moved earlier, would have saved much time and spared all the contentious spirit that crept in inescapably over States' rights. The central issue was whether the Union could impose its own statute on a Lokayukta on the States, very many of which already had that institution established by the State laws.

The Government of India claimed that its Bill was in implementation of the United Nations Convention Against Corruption, which the U.N. General Assembly adopted on October 31, 2003. India ratified it on May 12, 2011. The Lok Sabha debate on the Bill centred on Articles 252 and 253 of the Constitution.

Article 252 reads thus: (1) If it appears to the legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the legislature of that State.

(2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the legislature of the State. This left it entirely to the States whether or not to accept the Centre's model.

In contrast, Article 253 gives a carte blanche to the Centre: Notwithstanding anything in the foregoing provisions of this Chapter (on Centre-State relations in the legislative sphere), Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country/countries or any decision made at any international conference, association or other body. The italicised words were added on October 14, 1949, without debate in the Constituent Assembly just as the text was on June 13, 1949. No one perceived its wide sweep. If the Government of India concludes an international convention on, say, health, Parliament will have the power to make any law to implement it despite the fact that the subject falls in the State List. More, it applies not only to a treaty but covers any decision made at any international conference, association or other body.

Sir Ivor Jennings threw up his arms in alarm as he read this and wrote: It does not specifically refer to conferences, association and other bodies representing governments, and, on its face, it would seem to apply to any international organisation representing, let us say, universities or trade unions. Nor would it seem to matter that the organisation had merely advisory powers. The word decision' cannot mean a binding decision, for the assumption is that legislation is needed to implement it. If this is the correct interpretation, the Union Parliament can acquire jurisdiction over university education by the simple process of a decision of the Inter-University Board of India, which is an international body, because it contains representatives of universities in Burma and Ceylon. One notes, too, that the Comintern and the Fourth International are international bodies. This is such a startling invasion of States' rights, thrown in casually by a few words at the end of an Article, that one doubts its correctness. Possibly, a court would hold that international' implied a governmental organisation, that it applied to association' and body' as well as conference' and that body' had to be read ejusdem generis [in the same sense as the preceding words] (The Indian Constitution).

Entry 13 in the Union List reads: Participation in international conferences, associations and other bodies and implementing [ sic] of decisions made thereat. Entry 14 concerns entering into treaties and agreements with foreign countries. Entry 12 concerns the United Nations. They are all encapsulated in Entry 10: foreign affairs all matters which bring the Union into relation with any foreign country.

Article 73 (1) says that subject to the other provisions of this Constitution, the executive power of the Union shall extend (a) to the matters with respect to which Parliament has power to make laws. The government's executive power extends to all matters in the Union List.

However, Finance Minister Pranab Mukherjee clarified when he spoke in the Lok Sabha on December 27: You have the apprehension that the federal structure will be jeopardised. But there will be no assault on the federal structure because we are going to bring an amendment that without the consent of the State government the notification under Section (1) and (4) will not be issued. That amendment was passed in the Lok Sabha. ( The Hindu, January 3, 2012).

Clause 1(4) of the Bill empowers the Government of India to bring the Act in force on such dates as it may appoint. An overriding proviso reads thus: Provided that the provisions of this Act shall be applicable to a State which has given its prior consent to the application of this Act. If this proviso had been moved earlier, rather than in the evening, a wasteful debate would have been avoided.

Treaties and ratification

Treaties are of two kinds self-executing and ones that require domestic legislation to enforce them. A treaty of alliance is self-executing. It does not operate as law. If, however, a treaty's implementation depends on its enforcement within the country and affects the citizen's rights, domestic legislation is necessary. By itself a treaty is not law and does not alter the law. A convention against narcotics, for example, cannot be enforced without a law to punish the offences. Treaty-making is an executive function. Parliamentary democracies do not make ratification by Parliament obligatory.

The United States' Constitution, however, makes ratification obligatory. Article II, Section 2, says that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. Article VI (2) says: 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.

There are words of enormous plenitude: The supreme law of the land. The courts can be trusted to read down such words by giving them a restricted meaning. In Geofroy vs. Riggs (133 U.S. 258 1890), Justice Field began by admitting that the treaty power, as expressed in the Constitution, is in terms unlimited, but he went on to note that it was subject to those implied restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. Since this language was a little vague, Field added: It would not be contended that [the treaty power] extends so far as to authorise what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.

In Missouri vs. Holland (252 U.S. 416 1920), the Supreme Court spoke through the great judge Oliver Wendell Holmes. He said: Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power but they must be ascertained in a different way.

Justice Hugo Black carried the logic further in Reid vs. Covert (354 U.S. 1 1957). Quoting Article VI, he said: There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. It would be manifestly contrary to the objections of those who created the Constitution, as well as those who were responsible for the Bill of Rights let alone alien to our entire constitutional history and tradition to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined. There is nothing new or unique about what we say here. This court has regularly and uniformly recognised the supremacy of the Constitution over a treaty.

The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorise what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent (emphasis added, throughout).

This court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.

The Bricker amendment

In response to widespread agitation, Senator John Bricker of Ohio in 1952 introduced a constitutional amendment to limit the scope of the federal treaty power. The Bricker amendment read as follows:

Section 1. A provision of a treaty which conflicts with this Constitution shall not be of any force and effect.

Section 2. A treaty shall become effective as internal law only through legislation which would be valid in the absence of a treaty.

Section 3. Congress shall have the power to regulate all Executive and other agreements with any foreign power or international organisation. All such agreements shall be subject to the limitations imposed on treaties by this Article.

Thus Senator Bricker and his supporters sought to negate the possibility implicit in the Supreme Court opinion in Missouri vs. Holland (1920) that a treaty could enlarge federal power at the expense of the States, and equally that a treaty might be internally self-enforcing without the consent of Congress.

Although at one point it appeared that Bricker had the votes needed to pass the amendment, this support dwindled when President Dwight D. Eisenhower and Secretary of State John Foster Dulles announced their opposition to the proposal. In February 1954, the Senate voted 60 to 31, one vote short of the required two-thirds constitutional majority, for a modified version of the Bricker amendment that omitted the which clause and toned down the language on executive agreements. With this defeat, the amendment lost its political force, and by the late 1950s it had become a dead issue.

Constitutional precedents

In 1946, Sir B.N. Rau, Constitutional Adviser of the Constituent Assembly, prepared a set of papers on various topics for the guidance of its members. They were published in three Volumes as Constitutional Precedents (First series). One volume had a paper on the ambit of foreign affairs'. The volumes should be reprinted.

Rau posed the question and proceeded to answer it. Can the Union utilise the treaty making power given to it by the category foreign affairs' for the purpose, say, of enforcing a forty hour week in selected Indian industries, conditions of labour' being assumed to be a provincial subject? Dr. Wynes answers a similar question under the Australian Constitution in the affirmative [Legislative and Executive Powers in Australia, 1936, page 209 but he wrote before the Privy Council decision in Attorney General for Canada vs. Attorney General for Ontario and Others (1937 A.C. page 326)]. In this case, Privy Council ruled as invalid certain Acts of the Canadian Parliament regulating conditions of labour in various ways, as the legislation related to a provincial subject, although it was sought to be justified on the ground that it was required to give effect to certain international conventions which had been ratified by the Dominion of Canada: The Dominion cannot, merely by making promises to foreign countries, clothe itself with legislative authority inconsistent with the Constitution which gave it birth. It must not be thought that the result of the decision is that Canada is incompetent to legislate in performance of treaty obligations. In totality of legislative powers, Dominion and provincial together, she is fully equipped. But the legislative powers remain distributed and if, in the exercise of her new functions derived from her new international status, Canada incurs obligations, they must, so far as legislation be concerned, when they deal with provincial classes of subjects, be dealt with by cooperation between the Dominion and the provinces.' It is interesting to note that the existing provision on this point in the Government of India Act, 1935, follows a similar view. Section 106(1) states: The Federal Legislature shall not, by reason only of the entry in the Federal Legislative list relating to the implementing of treaties and agreements with other countries, have power to make any law for any Province except with the previous consents of the Governor' (page 27).

That explains why Article 253 was drafted in the terms in which we find it today fears of a repeat of the Canadian case. It was construed by the Supreme Court in the Rann of Kutch case ( Maganbhai Patel vs. Union of India (1970) 3 SCC 400 AIR 1969 S.C. 783). In his concurring judgment, Justice J.C. Shah said: The effect of Article 253 is that if a treaty, agreement or convention with a foreign state deals with a subject within the competence of the State Legislature, the Parliament alone has, notwithstanding Article 246(3), the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body. In terms, the Article deals with legislative power: thereby power is conferred upon the Parliament which it may not otherwise possess. But it does not seek to circumscribe the extent of the power conferred by Article 73. If, in consequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation: where there is no such restriction, infringement of the right or modification of the laws, the Executive is competent to exercise the power.

Two later cases deserve note. One is S. Jagannath vs. Union of India & Ors. (1997) 2 SCC 87 at page 143. The court upheld the Environment (Protection) Act, 1986, enacted to implement decisions taken at the U.N.'s Conference on the Human Environment in 1972.

More to the point is Dada vs. State of Maharashtra (200) 8 SCC 437, in which the Narcotic Drugs and Psychotropic Substances Act, 1985, was upheld as a law which implemented the International Convention of Psychotropic Substances, 1971. The parties to the Convention resolved to provide, in addition to conviction and punishment for an offence, that the offender shall undertake measures such as treatment, education, aftercare, rehabilitation or social reintegration. It was agreed: The parties shall endeavour to ensure that any discretionary legal powers under their domestic law relating to the prosecution of person for offences established in accordance with this Article are exercised to maximise the effectiveness of law-enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences. The parties shall ensure that their courts or other competent authorities bear in mind the serious nature of the offences and the circumstances enumerated when considering the eventuality of early release or parole of persons convicted of such offences.

The Supreme Court said: A perusal of the agreement of the Convention to which India is named to be a party, clearly and unambiguously shows that the court's jurisdiction with respect to the offences relating to narcotic drugs and psychotropic substances was never intended to be ousted, taken away or curtailed. The declaration was made, subject to constitutional principles and the basic concepts of its legal system prevalent in the polity of a member party'. The international agreement emphasised that the courts of the member countries shall always bear in mind the serious nature of offences ought to be tackled by the declaration while considering the eventuality of the release or partly of persons convicted of such offences. There was no international agreement to put a blanket ban on the power of the court to amend the sentence awarded to a criminal under the Act, notwithstanding the constitutional principles and basic concepts of its legal system. It cannot be denied that judicial review in our country is the heart and soul of our constitutional scheme. The judiciary is constituted the ultimate interpreter of our Constitution and is assigned the delicate task of determining the extent and scope of the powers conferred on each branch of the government, meaning that action of any branch does not transgress its limits (pages 452-453). Ergo, an implementing law which violates the Constitution would be void to the extent.

But, then, the U.N. Convention against Corruption itself respects the state parties' internal constitutional set-up. Article 5 on policies and practices says: Each state party shall, in accordance with the fundamental principles of its legal systems, develop and implement its policies.

So does Article 6, which reads thus:

1. Each state party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies, as appropriate, that prevent corruption by such means as: (a) Implementing the policies referred to in Article 5 of this Convention and, where appropriate, overseeing and coordinating the implementation of those policies (b) Increasing and disseminating knowledge about the prevention of corruption. 2.Each state party shall grant the body or bodies referred to in paragraph 1 of this Article the necessary independence, in accordance with the fundamental principles of its legal system, to enable the body or bodies to carry out its or their functions effectively and free from any undue influence. The necessary material resources and specialised staff, as well as the training that such staff may require to carry out their functions, should be provided. 3. Each state party shall inform the Secretary-General of the United Nations of the name and address of the authority or authorities that may assist other states parties in developing and implementing specific measures for the prevention of corruption.

Nothing in Article 6, or in the Convention as a whole, requires the Union to impose its own brand of Lokayukta on the States and an inferior brand at that. However, the Union has every right to insist that every State must have a Lokayukta of its own institutional choice provided it abides by certain fundamentals on independence and the like.

Article 27 of the Vienna Convention on the Law of Treaties says: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty that includes the Convention.

Article 323 D, which is sought to be inserted in the Constitution by Clause 2 of the Constitution (116th Amendment) Bill, 2011, will be unexceptionable if a minor amendment is made, namely, omission of reference to parliamentary legislation to establish the Lokayukta. Make it a constitutional obligation binding on the States and leave it to them to establish it. If they default, the courts are not powerless to require them to do their duty under the Constitution.

The proposed Article 323 D reads thus: (1) There shall be a Lokayukta for every State. (2) The powers of superintendence and direction relating to holding a preliminary inquiry, causing an investigation to be made and prosecution of offences in respect of complaints made to the Lokayukta under any law for the prevention of corruption made by Parliament or the State legislature, as the case may be, shall vest in the Lokayukta.

(3) The Lokayukta shall be an autonomous and independent body with a Chairperson and such number of Members as Parliament or, as the case may be, the State legislature may by law determine.

(4) Subject to the provisions of any law made by Parliament or the State legislature, the appointment of the Chairperson and Members of the Lokayukta shall be made by the Governor.

(5) The conditions of service and tenure of the Chairperson and members of the Lokayukta shall be such as may be determined by Parliament by law or, as the case may be, the State legislature.

(6) Every person appointed to be Chairperson or member of the Lokayukta shall, before he enters upon his office, make and subscribe before the Governor or some person appointed in that behalf by him an oath or affirmation according to the form set out for the purpose in the Third Schedule.

(7) The Chairperson and members of Lokayukta shall not be eligible for further officer either under the Government of India or the Government of any State or any other office as Parliament or the State legislature may by law determine.

It is not too late for India's political class to make amends for its lapses in partisanship. Five steps are required (1) Amend the Lokpal Bill on the lines of Indira Gandhi's Bill of 1968 or Karnataka's Act of 1985 to cover grievances of maladministration as distinct from corruption. Not seldom corruption is exposed when such grievances are looked into, as Justice S.P. Kotval told this writer (2) Make the CBI autonomous (3) Delete Section 197 of the Cr. P.C., Section 19 of the Prevention of Corruption Act and Section 6A of the DSPE Act, 1946 the crippling sanctions provisions (4) Make suitable changes in the Constitution Amendment Bill to allay the States' disquiet and (5) Implement the Second Report of the National Police Commission on protecting the integrity of the police force in the States.

Tailpiece: The debate on Article 253 has missed a proviso to the Article which was added on May 14, 1954, by the Constitution (application to Jammu and Kashmir) Order 1954. To Article 253 it added this proviso which nobody talks about. It is too embarrassing for words. It says:

Provided that after the commencement of the Constitution (application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of the State of Jammu and Kashmir shall be made by the Government of India without the consent of the government of that State.

The implication is clear. A decision on the disposition of Kashmir is yet to be made and that under an international agreement. Plebiscite is dead politically. Legally, the plea for it is not illegal. Legally, also, a decision is yet to be made on the future of Kashmir.


History of Ray County, Missouri

Ray County, in the western part of the State of Missouri, is bounded north by Caldwell County, east by Carroll County, south by the Missouri River, which separates it from La Fayette and Jackson Counties, and west by Clay and Clinton Counties, and contains 561.64 square miles. It embraces, in its present boundaries, all that part of Missouri included in ranges 26, 27, 28, and 29 west of the fifth principal meridian, and townships 54, 53, and 52, and townships 51 and 50 fractional, north of the Missouri River.

Townships 54, 53, 52 – 432.00 square miles

Township 51 fractional – 116.12 square miles

Township 50 fractional – 13.52 square miles

The population of Ray County in 1830 was 2,657 in 1840, 6,553 in 1850, 10,373 in 1860, 14,092 in 1870, 18,700, of whom 16,869 were white, and 1,833 colored 9,780 males, 8,920 females 18,155 native (11,864 were born in Missouri), and 565 foreign. The census of 1870 gives the aggregate population of the townships of Ray County as 20,275.

In 1816 Isaac Martin, John Proffitt, Holland Vanderpool, Abraham Linville, Isaac Wilson, John Turner, William Turnage, Winant Vanderpool, Lewis Richards, Jacob Tarwater, Samuel Tarwater, Lewis Tarwater, and others from Virginia, Kentucky, and Tennessee settled on Crooked River, near the present site of Buffalo City, at Bluffton on the Missouri River, near the present site of Camden, and on Fishing River in the southwestern part of the county.

Settlers came in rapidly. In 1819, Meadders Vanderpool, who was afterward county surveyor, taught the first school in the county.

This same year the first steamboat ascended the Missouri River as far as Council Bluffs, passing Old Bluffton, then the county seat of Ray County, in the month of September.

Capt. William D. Hubbell, now of Columbia, Missouri, some of whose family are living in Ray County at the present time, was a clerk on the steamboat, R. M. Johnson, that passed Old Bluffton, in the year 1819.

This county was organized November 16th, 1820, and named in honor of John Ray, a member of the Constitutional Convention, from Howard County, Mo.

It then extended from Grand River on the east to the Platte Purchase on the west, and from the Missouri River on the south to the Iowa line on the north. Out of this magnificent expanse of territory twelve counties, beside Ray, have been formed, to wit, the counties of Clay, Carroll, Clinton, De Kalb, Gentry, Worth, Harrison, Daviess, Caldwell, Livingston, Grundy, and Mercer. Truly, may Ray be called the mother of counties.

The formation of Clay County in 1822on the west, Carroll on the east in 1832, and Caldwell on the north in 1836, gave Ray its present boundaries.

Bluffton was its county seat until, in the year 1827, Richmond was selected as the permanent county seat.

The poll books for the election that year, as shown by the records in the county clerk's office, give the following vote:

Fishing River Township – 55 votes

Bluffton Township – 59 votes

Crooked River Township – 38 votes

Missouri Township – 11 votes

The first county court was held in April, 1821, at Bluffton. John Thornton, Isaac Martin, and Elisha Cameron were the county judges William L. Smith, clerk and John Harris, sheriff.

Hon. Hamilton R. Gamble was the first circuit attorney in the first judicial circuit of Missouri, of which Ray County formed a part, who, upon his resignation, was succeeded by Abiel Leonard, and he by Charles French.

Amos Rees and Thomas C. Burch were also circuit attorneys of the fifth judicial circuit, of which Ray formed a part from 1831, by appointment. Rees was appointed in 1831, Burch in 1837.

George Tompkins, Peyton R. Hayden, Cyrus Edwards, General Duff Green, Judge John F. Ryland, Amos Rees, and other prominent attorneys practiced law at Bluffton.

The only memorial that remains of the once important seat of justice is upon the county records, and in the memories of the early settlers of the state.

In 1827, John Woolard, one of the early settlers of the territory of Missouri, had a corn field upon the present public square of Richmond. In the year following a town was laid off at that place, and the public records removed to it from Bluffton.

The first county court was held at Richmond, May 5th, 1828. William P. Thompson, Sebron J. Miller, and Isaac Allen were the county judges George Woodward, county clerk and Larkin Stanley, sheriff.

Hon. David Todd was judge of the first judicial circuit, of which Ray County formed a part, from the year 1821 to 1831. By act of the General Assembly of Missouri in the session of 1830-1831 Ray County was made a part of the fifth judicial Circuit.

Hon. John F. Ryland was judge of this circuit from 1831 to 1837. By act of the general assembly in 1837, the counties south of the Missouri River included in the fifth judicial circuit were stricken off, and were embraced in the sixth judicial circuit, of which Hon. John F. Ryland was the judge. The fifth judicial circuit was then formed wholly from counties north of the Missouri River, and embraced the counties of Ray, Clay, Clinton, Carroll, Caldwell, and Daviess. Hon. Austin A. King was appointed judge of this circuit in 1837, and served on the bench with distinction until he resigned in the year 1848, when he was elected governor of Missouri. [Hon. Austin A. King was also judge of the circuit from 1861 to 1863, by appointment of Governor Hamilton R. Gamble.] Hon. George W. Dunn succeeded him, receiving his appointment from Gov. John C. Edwards, and was circuit judge from 1848 to 1861, and from 1863 to 1865. He was succeeded by Hon. Walter King, who was circuit judge from 1865 to 1867, and was succeeded by Hon. Philander Lucas, who was circuit judge from 1867 to 1874. Hon. George W. Dunn is now the judge of the fifth judicial circuit, composed of the counties of Ray, Clay, Clinton, and Platte, since the year 1866, having been elected in the year 1874 for a term of six years. He has been circuit judge for seventeen years, and has deservedly won a high reputation as an eminent jurist. It can be truly said of him that he has worn the ermine unspotted. The circuit attorneys of the fifth judicial circuit since the year 1837 were William T. Wood, Peter H. Burnett, George W. Dunn, Charles J. Hughes, Mordecai Oliver, Christopher T. Garner, Aaron H. Conrow, De Witt C. Allen, David P. Whitmer, William A. Donaldson, Elijah Esteb, and John G. Woods.

The act of the legislature of Missouri, establishing county attorneyships, went into effect in the year 1872. Since that time Joseph E. Black and, James L. Farris have been county attorneys of Ray County. Frank G. Gibson was elected county attorney November 7, 1876, and entered upon the duties of the office in January, 1877. By act of the General Assembly, approved January 31, 1839, the fifth judicial circuit was composed of Ray, Clay, Platte, Buchanan, Clinton, and Caldwell.

By act of the General Assembly, approved March 27, 1845, the filth judicial circuit was composed of the counties of Clinton, Clay, Ray, Carroll, Harrison, De Kalb, Daviess, and Caldwell and by act, approved March, 1866, the fifth judicial circuit was composed of the counties of Clinton, Clay, Ray, and Platte.

The first term of the circuit court in Ray County was held at Bluffton, February 19th, 1821, Judge David Todd presiding.

The grand jurors at that term were John Vanderpool, foreman, William Tumridge, Josiah Barns, Joseph Dickson, William Scott, John Dickson, David Shackelford, Samuel Prewett, William Rawlings, Charles Scott, James R. Walker, Jesse Fletcher, David Bryant, Daniel Duvall, Samuel Oliphant, William Ragan, and Hugh Vallandingham, who, after receiving the charge of Judge Todd, retired to consult and inquire into all violations of the law in the county, and after a short time returned, and having nothing to present, were discharged.

The second grand jury were empanelled at the June term, 1821, and consisted of the following persons: John Bartlettson, foreman, Samuel Telford, Howard Averett, James Williams, Jonas Miller, James Snowden, Thomas Bruce, William Black, Walker McClelland, Robert Poage, Jonathan Liggett, Thomas Edwards, Joseph Cox, James E. Buchanan, Joseph Wells, William Officer, and John Turner, who, after remaining in session a short time, returned the following indictments, viz.:

"The State of Missouri vs. Lewis Richards, indictment for selling less than twenty gallons of whisky without having obtained a license for retailing spirituous liquors, 'a true bill.'"

"The State of Missouri vs. Lovell Snowden and Zadoc Martin, indictment for an affray, 'a true bill.'"

Andrew Robertson, Plaintiff )

In 1832 occurred the Black Hawk War. Ray County furnished one company for this war, commanded by Capt. John Sconce, afterward relieved by Capt. William Pollard. Their march was to the northern portion of the state, thence easterly into the Grand River country. The object in calling out troops in this part of the State was to prevent incursions of Black Hawk's men into this state, as well as to overawe and keep quiet the Indians then inhabiting what is known as the " Platte Purchase," and others north of it.

In 1836, two companies of Ray County militia, under command of Captains Matthew P. Long and William Pollard, were ordered out as a part of Brigadier-Gen. William Thompson's brigade, to serve in the "Heatherly War." The counties of Ray, Carroll, and Clay, as late as 1836, extended from the Missouri River to the southern boundary line of Iowa territory. In June of that year (1836) the settlements in the northern portion of all these counties were sparsely peopled, and many miles apart. In the northern part of Carroll County, now embraced in the limits of Mercer and Grundy, near the line dividing these two counties, there was a comparatively small settlement, or a few families of pioneers residing. Of this number was an old man named Heatherly and wife, some four grown sons, and two sons-in-law, and a family named Dunbar, and another person, a near neighbor of Dunbar. The Heatherly's were at enmity with Dunbar and his neighbors, and availing themselves of the chance, always created in the unprotected settlements, they murdered Dunbar and his neighbor, and robbed their houses, and then fled into the more densely settled part of the country south, and reported that some Iowa Indians had made an irruption into that part of the country and had murdered and robbed. these two persons. The clamor of the Heatherly's caused troops to be called out for the purpose of apprehending the Indians, and having them punished for these murders.

Brigadier-General William Thompson was commander of the brigade, embracing the counties of Ray, Clay, and Carroll, and resided in Ray. He immediately ordered out five companies, one from Carroll, two from Ray commanded as above-mentioned, and two from Clay commanded respectively by Capt. David R. Atchison and Smith Crawford, and the battalion was under the personal command of Shubael Allen. The battalion from Ray and Carroll was commanded by Gen. Thompson in person. This last-named battalion marched rapidly to the scene of the crimes, and succeeded in finding the bodies of the murdered men, but no trace of any Indians could be found. The two battalions were in constant communication, and after about eighteen days' service General Thompson ordered them to disband. Facts ascertained by Gen. Thompson when he was at the scene of the murder, and facts that came to light, induced the belief that the Heatherly gang were the murderers, and they were arrested and committed to jail in Carroll County, and after a delay of a year or more, some of them were convicted and sent to the penitentiary. The Heatherly family were more like gypsies than Americans. The children were of every hue, from mulattoes to pretty fair Caucasians. The moving spirit and motive power of the family was the old woman, the mother of this motley progeny. She had great shrewdness, and was as fiendish as a Hecate. It was in proof that she instigated, planned, and had the crimes committed, and conceived the idea of attributing them to the friendly Iowa Indians.

In the Florida War, in the year 1837, the "Missouri Spies," a company made up chiefly of recruits from Ray County, commanded by Capt. John Sconce, Israel R. Hendley, First Lieutenant, did good service in the swamps and everglades of Florida. In the battle of Okeechobee, December 25th, 1837, the company suffered severely. Among the killed were Perry Jacobs and James Remley, and among the wounded were John W. Martin and William B. Hudgins, from this county.

In the fall of 1838, the Mormon war caused great excitement in Ray County. A considerable force of Mormons under their leader, Joe Smith, had assembled at Far West, in Caldwell County, Mo., and serious apprehensions were entertained that they intended to make a descent upon Ray County. A portion of the force of Mormons, under the command of Capt. Patton, did march into Ray County, as far as what is now called "Bogart's Battle Field," on Crooked River, in the northwest part of the county, on or about the 15th of November, 1838, and met a company of Ray County militia, under the command of Capt. Samuel Bogart. After a sharp engagement, the militia were repulsed and fell back to the southern part of the county, leaving the Mormons masters of the battle-field. In this engagement the Mormons lost Captain Patton, and the day following fell back to their main force at Far West, Caldwell County.

The wildest excitement prevailed in Ray County after this slight action. A large number of the people in the northern part of the county removed their families and their effects to places of safety in the southern-part of the county.

Lilburn W. Boggs who was then Governor of Missouri, issued a proclamation and ordered Major-Gen. David R. Atchison to call out the militia of his division, in order to put down the insurgents and enforce the laws. Gen. Atchison called out a part of the First Brigade of the Missouri State Militia, under the command of Gen. Alexander W. Doniphan, who proceeded at once to the seat of war.

There were called out in this expedition from Ray County four companies of militia, commanded respectively by Captains Samuel Bogart, Israel R. Hendley, Nehemiah Odell, and John Sconce. The militia were placed under the command of General John B. Clark.

General Doniphan, on reaching Far West, in Caldwell County, Mo., after some slight engagements, where the principal Mormon forces had assembled, numbering about 1,000 men, commanded by Col. G. W. Hinkle, demanded their surrender, on the following conditions, viz.: That they should deliver up their arms, surrender their prominent leaders for trial, and that the remainder of the Mormons should, with their families, leave the State.

After some parleying, Joe Smith surrendered on Gen. Doniphan's conditions. The leaders were taken before a court of inquiry at Richmond, Ray County, Judge Austin A. King presiding. He remanded them to Daviess County to await the action of the grand jury on a charge of treason against the State.

The Daviess County jail being very poor, they were taken to Liberty, Clay County, Mo., and confined in the jail at that place.

Indictments were presented against Joseph Smith, Hyrum Smith, Sidney Rigdon, Lyman Wright, Col. G. W. Hinkle, Charles Baldwin, and Amos Lyman. Sidney Rigdon was released on awrit of habeas corpus, at Liberty, Clay County, Mo.

The others applied for a change of venue, which was granted by Judge Austin A. King, and their cases were sent by him to Boone County for trial. On their way to Columbia, Boone County, under a military guard, Joseph Smith and his fellow-prisoners effected their escape. It is claimed, and believed by many, that the guard, or a portion of it, was bribed.

In 1846, a company of volunteers were recruited from Ray County for the Mexican War. This company was mustered into the service August 1, 1846, as company "G," in the battalion of Missouri Mounted Riflemen, commanded by Lieut.-Col. David Willock (Col. Sterling Price's regiment), called into the service of the United States by President James K. Polk, under the act of Congress, approved May 13, 1846. Israel R. Hendley was elected Captain of Company "G" William M. Jacobs, First Lieutenant John W. Martin, Second Lieutenant and William P. George, Third Lieutenant.

This battalion was a part of Col. Sterling Price's regiment, and under the command of Kearny and Doniphan won laurels, of which the country is justly proud.

Capt. Israel R. Hendley, who had proved himself a gallant officer, fell at Moro, New Mexico, January 25, 1847, and was succeeded in command of Company "G" by Capt. William M. Jacobs, who was a brave and efficient officer, and was greatly endeared to his gallant company. Capt. Jacobs is still a resident of Ray County. Company "G" was mustered into the United States service August 1, 1846. It was a splendid company, well equipped, thoroughly disciplined, and efficient in every respect. It performed excellent service during the war, and was honorably discharged at Fort Leavenworth, Kansas, on the 17th day of September, 1847.

A portion of this company accompanied Doniphan's regiment, so famous for its march to Santa Fe, Chihuahua, Monterey, and the Gulf, and for the battles of Bracito and Sacramento. The march of this regiment is known as "Doniphan's Expedition."

After those brilliant victories, Doniphan's gallant little army took up its line of march homeward. At Saltillo they were reviewed by General Wool. They reported to General Taylor at Monterey on the 27th of May, 1847, and thence they marched to Matamoras, conveying with them their artillery, which General Taylor permitted them to take home as trophies in consideration of "their gallantry and noble bearing." They made the march from Chihuahua to Matamoras, nine hundred miles, in forty-five days.

They arrived at New Orleans about the middle of June, 1847, were mustered out of service, and received a brilliant reception. The celebrated orator, Sergeant S. Prentiss, on the part of the people of New Orleans welcomed their return in one of the most eloquent, touching, and patriotic speeches ever heard from mortal lips.

On the 2d of July they arrived at St. Louis, where they received a grand and glorious welcome. Judge Bowlin received them at St. Louis on the part of the people. A magnificent banquet was spread for them, and Col. Thomas H. Benton made a most eloquent and thrilling speech to the assembled mass of soldiers and people, recounting the events of their long and almost fabulous expedition with a minuteness and accuracy that astonished them. He traced their journey of five thousand miles from St. Louis and back again. In the course of his patriotic and impressive speech he referred to the famous "Retreat of the Ten Thousand," and congratulated them that the march of the "One Thousand" exceeded that of the "Ten Thousand" by some two thousand miles. Deservedly has General Doniphan won the title of the "American Xenophon."

Almost thirty years have rolled around since the Mexican War, and many of the brave soldiers of the gallant armies of Taylor, Scott, and Doniphan have gone to their last camping ground.

"On fame's eternal camping ground,
Their silent tents are spread
And glory, in her solemn round,
Guards the bivouac of our dead."

A Pension bill, for the benefit of the survivors of the Mexican War has been introduced into Congress. It is ardently hoped that it will soon become a law, and afford some recognition of the gallant services of the soldiers whose deeds hold a conspicuous place on that pillar of glory, where the deeds of the American soldier are emblazoned for the admiration of mankind.

During the late Civil War, Ray County furnished a large number of soldiers for both armies, who bore themselves bravely in some of the hardest fought battles of the war, adding new lustre to the military honors already won by the county.

The number of volunteers from Ray County that enlisted in the Southern armies is variously estimated at from 800 to 1,000.

A majority of this number enlisted under General Sterling Price the first year of the war, 1861.

The following is a list of the principal officers from Ray County that served with distinction in the Confederate armies, also the names of a few non-commissioned officers are given:

Col. Benjamin A. Rives, Colonel Third Missouri Infantry Volunteers, was killed at the battle of Pea Ridge, March 8, 1862.

Col. Benjamin Brown, Inspector of the Fourth Division of the "Missouri State Guards," was killed at Wilson's Creek, Mo., August to, 1861.

Capt. Finley L. Hubbell, afterward promoted to be Lieut. Col. of Third Missouri Infantry Volunteers, was wounded in the battle of Champion Hill, May 16, 1863, and died from the effects of the wound, at Coffeeville, Mississippi.

Capt. Kelsey McDowell, was killed at Atlanta, Georgia, July 22, 1864, having been promoted to be Lieut. Col. of the Third Missouri Infantry Volunteers, a short time before he was killed.

Major William C. Parker, Company "D," First Missouri Cavalry Volunteers (Col. Gate's regiment), was killed at the battle of Franklin, Tennessee, November 30, 1864.

Capt. Dick Early, brother of Gen. Jubal Early, was wounded at the battle of Wilson's Creek, August 10, 1861, and afterward died from the effects of said wound, at Springfield, Missouri, in the fall of 186l.

Col. Aaron H. Conrow, was killed after the close of the war, in the year 1865, in Mexico, by some of Juarez's guerillas. He was a member of the Confederate Congress, and represented the Fourth District of Missouri, embracing within its limits Ray County, from the commencement of the war of 1861 to the close of it.

Capt. James L. Farris, was Captain Second Missouri Battery. He has been County Attorney of Ray County, and was a member of the Constitutional Convention of Missouri in 1875. At the last election, November 7, 1876, he was elected a member of the lower branch of the Legislature of Missouri, to represent Ray County.

Lieut. Hiram C. Warriner, was Second Lieutenant in Second Missouri Battery. He is now a prominent attorney-at-law, at Memphis, Tennessee.

Major Robert Williams, Third and Fifth Regiments Missouri Infantry Consolidated, commanded by Col. James McCown, Warrensburg, Mo.

Capt. Gwinn McCuistion, Company "C," Third Missouri Infantry.

Lieut. William A. Holman, Company "C," Third Missouri Infantry.

Lieut. William H. Mansur, Company "C," Third Missouri Infantry.

Capt. John P. Quesenberry, Company "H," Eleventh Missouri Infantry.

Lieut. Frank Davis, Company "H," Eleventh Missouri Infantry.

Lieut. Berrien J. Menefee, Company "D," First Regiment Missouri Cavalry.

Capt. William L. Nuckols, Company "B," First Regiment Missouri Cavalry.

Lieut. Lewis Slaughter, Company "K," Seventeenth Regiment Virginia Infantry. He is at present Recorder for Ray County.

Capt. Obadiah Taylor, Company "A," Third Missouri Infantry.

Lieut. Richard Lamb, Company "A," Third Missouri Infantry, was killed at the battle of Altoona, Georgia, October 6th, 1864.

Col. Lewis Bohannon, Missouri State Guards.

Lieut. Robert Rives, Company "F," Third Missouri Infantry, was wounded at the battle of Lexington, Missouri, September 20, 1861, and afterward died in the State of Arkansas. He was a brother of Col. Benjamin A. Rives.

George Rothrock, Company "D" First Missouri Cavalry Volunteers, died near Demopolis, Alabama, July 2, 1865, from disease contracted in the service.

William Duval, Company "C," Third Missouri Infantry, was killed at the battle of Corinth, Mississippi, October 3, 1863.

Thomas Duval and Henderson Duval, Company "C," Third Missouri Infantry, were killed at Vicksburg, July, 1863.

Henry Allen, Company "C," Third Missouri Infantry, was killed at Vicksburg, May 22, 1863.

Calvin C. Brown, Company "A," Third Missouri Infantry, was killed at Vicksburg, May 22, 1863.

Patrick Smith, was wounded at the battle of "Champion Hill," November 16, 1863, and was afterward killed at Altoona, Georgia, October 5, 1864. He was a member of the Company "C," Third Missouri Infantry.

Thomas Hale, Company "D," First Cavalry Missouri Volunteers, was killed at Franklin, Tennessee, November 30, 1864.

Malnar Hendley, Company "A," Third Missouri Infantry, was killed a Vicksburg, May 22, 1863.

Samuel Anderson, Company "A," Third and Fifth Regiments, Missouri Infantry, killed at Vicksburg, May 22, 1863.

Capt. Alexander A. McCuistion, Company "C," Third Missouri Infantry, now Clerk of the County Court of Ray County.

Dr. James D. Taylor, Company "D," First Missouri Cavalry.

Dr. William Quarles, Color-Bearer of Company "C," Third Missouri Infantry.

Adrian C. Ellis, Company "A," Third Regiment Missouri Infantry. Now an attorney-at-law in Nevada.

Capt. William C. Riffe, Missouri State Guards.

Capt. John Warrenstaff, Missouri State Guards.

Lieut. Lee White, Missouri State Guards.

Henry Ellis, Missouri State Guards.

The number of volunteers furnished by Ray County for the Federal armies is estimated at about 1,200.

During the first year of the war the recruits, for the Union armies in this county, were not many. The counties of Ray and Carroll during the summer of 1861, furnished one company of volunteers, and under the command of Capt. Dick Ridgell, did service at Lexington, Missouri, until the surrender of Gen. Mulligan to Gen. Sterling Price, September 20, 1861. Some other volunteers from Ray County served in the companies at Lexington, at the time of this memorable siege.

In the first week of December, 1861, a large force of Federal troops, under Gen. B. M. Prentiss, passed through Ray County, halting for a few days at Richmond. The night after their arrival a company of volunteers was organized near the residence of John Elliott, near Camden, in this county. This company was enrolled on the 17th of December, 1861, and mustered into the service January 12, 1862. Andrew Elliott was elected Captain, who was afterward succeeded, September 28, 1862, by Capt. George N. McGee. This company was Company "A," Third Missouri State Militia Cavalry.

The next company of volunteers, Missouri State Militia Cavalry, Third Regiment, was Company "B," mustered into service January 12, 1862, and commanded by Capt. Abraham Allen, who was afterward promoted to be Major of the Third Missouri State Militia Cavalry.

The next company was Company "D," same regiment, commanded by Capt. Austin A. King, Jr., afterward Colonel of the Thirteenth Missouri Veteran Cavalry Volunteers.

These companies were in the old Third Missouri State Militia Cavalry, commanded by Col. Walter King, until consolidated in accordance with Special Order No. 12, from Headquarters of Missouri, Feb. 4, 1863, they became part of the Sixth -Regiment Missouri State Militia Cavalry, commanded by Col. E. C. Catherwood, and Companies "A" and "B" became in the said Sixth Regiment Companies "I" and "K," respectively and Company "D," of the Third Regiment was distributed among the different companies of the Sixth Missouri State Militia Cavalry.

Company "D," of the Sixth Missouri State Militia Cavalry, was from Ray County, and commanded at first by Capt. William F. Kelso, who was succeeded by Capt. Samuel E. Turner.

Ray County also furnished a large number of recruits for Company "D," Capt. James M. Morganson, Thirty-fifth Missouri Volunteers Company "F," Tenth Missouri Cavalry Volunteers, Capt. Fred. R. Neet Company "D," Twelfth Regiment Cavalry Missouri Volunteers, Capt. Charles Ernst Companies "B" and "D," Thirteenth Missouri Cavalry, Capts. Joel H. Shelley and John E. Mayo, respectively Company "I," Twenty-sixth Missouri Infantry Volunteers, Capt. John McFall Companies "B," "F," and "H," Forty-fourth Regiment Missouri Volunteers, Capts. William Drumhiller, Isaac N. Henry, and William D. Fortune, respectively.

Ray County also furnished a number of recruits for Kansas regiments.

In addition to these, Ray County furnished a regiment of enrolled militia, the Fifty-first Enrolled Missouri Militia, ten companies, that were frequently called into active service until the close of the war.

The regimental officers of the Fifty-first Enrolled Missouri Militia were:

James W. Black, Lieut. Colonel.

Elisha Riggs, Quartermaster.

Capt. Patton Colley, of Company "E" of the Fifty-First Enrolled Missouri Militia, Lieut. Jesse C. Tunnage, of Company "D," Lieut. John C. Page, of Company "F," same regiment, were killed by guerillas, in July, 1864.

Simon McKissack, Company "B," Third Missouri State Militia Cavalry, was killed, at Springfield, January 8, 1863.

Lieut. Riley Briggs, Company "K," Sixth Missouri State Militia Cavalry, was killed, October 9, 1864.

Thomas H. Elliott, of same company, was killed, October 23, 1864, near Jefferson City, at the time of the invasion of Missouri by General Sterling Price.

Lieut. John M. McKissack, Company "B," Forty-fourth Missouri Volunteers, died at New Orleans, Louisiana, April 9, 1865.

James McKissack, Company "B," Forty-fourth Missouri Volunteers, was killed at battle of Franklin, Tennessee, November 30th, 1864.

October 27, 1864, a force of guerillas, under the command of Bill Anderson, were repulsed near Albany, Ray County, by a portion of the Fifty-first Enrolled Missouri Militia, commanded by Major John Grimes, and a portion of the Daviess County Enrolled Missouri Militia, commanded by Major Samuel P. Cox, of the First Cavalry Missouri State Militia. In the engagement, Bill Anderson the noted "bush-whacker," was killed while making a desperate charge.

It will be seen from the foregoing that Ray County furnished a large number of soldiers for both the armies of the Federal Government and the Southern Confederacy, and wherever her sons served they did their duty well.

After peace was restored in 1865, the sublime spectacle was presented of the soldiers of the "blue and gray" living peaceably together and following the same pursuits, glorying in the same common country, its progress and renown, its great present and unbounded future.

The eastern and northern parts are mostly prairie, with a little timber skirting the streams the central portion is about equally divided between timber and prairie and the southwestern and southern portions generally heavily timbered with the various kinds of oak, also hickory, walnut, hackberry, sugar, maple, ash, and cotton wood. The soil is rich and productive, and the county is well watered. Crooked River and its affluents, West Fork, Middle Fork, and East Fork drain the entire central portion East Fork and West Fork of Wakanda, the northeastern portion Fishing River, Keeny, and Rollin's Creek the southwestern and Willow Creek, the south central part.

The agricultural productions are wheat, corn, oats, rye, tobacco, and hemp.

Fruits are raised in abundance. Especial attention has been given to the culture of the grape, and there are a number of remarkably fine vineyards in the county. Among these may be mentioned the fine vineyard of Major Alexander Oliphant, six miles north of Richmond, on the road leading from Richmond to Millville, and the fine one of Hiram P. Settle, one mile northwest of Major Oliphant's also those of A. Barr, George W. Dunn, George I. Wasson, and W. W. McDonald, near Richmond, and of Lewis Hammerslaugh, near Lawson, in the northwestern part of the county, on the St. Louis and St. Joseph R. R.

Bituminous coal of a superior quality is found in great abundance. The stratum underlying the county is about twenty-four inches in thickness, and can be easily beached by sinking shafts and drifting. There is another stratum about six feet in thickness at a depth of several hundred feet.

The principal coal mines are at Camden, on the Missouri River, and in the vicinity of Camden, along the line of the St. Louis, Kansas City, and Northern R. R., and in the vicinity of Richmond, convenient to the St. Louis and St. Joseph R. R.

The coal mines at Camden are under the control and management of Messrs. McGrew, Gilkison, and Chew.

The following are the principal ones near Richmond, Ray County, Mo. :

No. 1 – Lawson coal mine, owned by W. D. Rankin.

Old No. 2 – Richmond coal mine, owned by Hughes & Co.

No. 2 – Richmond coal mine, owned by Hughes & Co.

No. 3 – (Abandoned) coal mine, owned by J. C. Cates and others.

No. 4 – Swanwick coal mine, owned by Thomas Hayson & Co.

These mines yield a superior quality of coal, and pay a handsome profit on the capital invested. The mines owned by Hughes & Co., in the suburbs of Richmond, yield about 500,000 bushels of coal per annum, and furnish employment for eighty miners, on an average. Those of Camden and vicinity employ about 150 miners.

Indications of lead and silver have been observed in various parts of the county.

Valuation of the county per census of 1870 - $10,000,000.00

Taxation 1876 – Total tax, $1 30 per $100

Taxation, 90¢ per $100 school tax, 40¢ per $100

Interest on railroad debt – $48,288.00

Bonded debt, exclusive of railroad debt – $23,101.38

The St. Louis, Kansas City, and Northern R. R. passes through the southern part of the county, having 25 miles of track. The St. Louis and St. Joseph Branch of the St. Louis, Kansas City, and Northern R. R. has 28 miles of track, running diagonally from the southern part of the county to the northwest portion of it.

The Burlington and Southwestern R. R. has made a survey of the line of their road, which, when completed, will pass through the southeastern part of the county, intersecting the St. Louis, Kansas City, and Northern R. R. at Hardin.

The exports of the county are wheat, corn, oats, rye, tobacco, hemp, and stock.

The educational interests of the county are well attended to. Public schools are established in all the sub-districts, and in several of the towns there are private schools of good reputation. Richmond has a graded school of a superior character, taught in Richmond College, where not only a thorough English education can be acquired, but also a classical one. There are ninety-two public schools in the county, having 6,869 pupils in attendance. These public schools are endowed with a permanent school fund, the proceeds of the township school lands and swamp lands. Twenty-five per cent of the State revenue, and also certain fines and penalties, are set apart for support of the public schools.

The proceeds realized from the sale of these lands have been sacredly guarded to advance the public schools of the county. The county is the custodian of this fund. It is loaned out at ten per cent interest, payable annually. The amount expended in support of public schools in the county for the year ending April 1, 1876, was $51,308.35.

The schools in the county are kept open in many districts six months in the year, some of them longer. Many of the school buildings are new and substantial structures, and show the great interest manifested by the people in the cause of education.


Missouri v. Holland

252 U.S. 416 (1920), argued 2 Mar. 1920, decided 19 Apr. 1920 by vote of 7 to 2 Holmes for the Court, Van Devanter and Pitney in dissent. The state of Missouri sought to enjoin a United States game warden from enforcing federal regulations enacted pursuant to the Migratory Bird Treaty Act of 1918 on the grounds that the statute unconstitutionally interfered with rights reserved to the States under the Tenth Amendment. The Bird Treaty Act had been passed to fulfill United States obligations under a treaty with Great Britain to protect migratory birds. Missouri appealed from lower court decisions upholding the statute's constitutionality. An earlier federal statute to regulate the taking of migratory birds, not passed pursuant to an international treaty, had been held unconstitutional in lower courts on the grounds that the birds were owned by the states in their sovereign capacity and were therefore immune from federal regulation under the Tenth Amendment.

Justice Oliver Wendell Holmes concluded that the statute was a “necessary and proper” means of executing the powers of the federal government, valid under Article I, section 8, because the United States had the authority to implement treaty obligations.

The Court held that since the treaty was valid it superseded state authority as the supreme law of the land under Article VI of the Constitution. This was so, Holmes wrote, because migratory birds did not respect national boundaries and were therefore appropriate subjects for regulation by agreement with other countries. Even if the states of the United States were capable of effectively regulating the subject, the Court found nothing in the Constitution to prohibit the federal government from acting by means of a treaty to deal with a “national interest of very nearly the first magnitude … [that] can be protected only by national action in concert with another power” (p. 435).

Holmes's analysis has been criticized as a bootstrap method to create new federal power by means of international treaty. Fears of an expansive application of this principle were instrumental in encouraging popular support for the “Bricker Amendment” in 1953, which would have amended the constitution to provide that “[a] treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.” In 1957, the Supreme Court relieved much of this public concern in Reid v. Covert, when it held that status of forces agreements between the United States and foreign countries could not deprive U.S. civilian dependants of the right to a jury trial by making them subject to military courts-martial while they were stationed abroad. Citing Missouri v. Holland, the Court wrote, “To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier” (p. 18).

The Holland opinion has become largely irrelevant because of the greatly expanded scope of national power today over all matters touching interstate or foreign commerce. But the case has continuing importance. First, the opinion contains what has come to be regarded as the classic statement of the “living document” approach to constitutional interpretation in which historic practice, rather than the intent of the framers is given primary emphasis. Second, even though the controversy in this case concerned the scope of the treaty power, rather than treaty supremacy, the theory of the case has provided support for later Court decisions such as United States v. Belmont (1937) and United States v. Pink (1942) establishing the supremacy of federal executive agreements over state law.


Missouri v. Seibert

Patrice Seibert’s 12-year-old son, who had cerebral palsy, died in his sleep. Fearing charges of neglect, she conspired with her other sons to burn their mobile home to make the death look like an accident. As part of the plan, they decided to leave another person who was living with them, a mentally ill teenager named Donald, in the mobile home so authorities would think that the son was supervised at the time of the fire. Donald subsequently died in the fire.

Several days after the incident, police arrested Seibert and brought her to the station house. Without giving her Miranda warnings, police questioned Seibert. She admitted to the crime during questioning. After a 20-minute break, the police gave, and Seibert waived, the Miranda warnings. The police then recorded her statement, which was essentially a recitation of what she had told the police earlier. The police intentionally used the “question-first” strategy on Seibert. Seibert was ultimately charged with the first-degree murder of Donald.

Procedural History:

  • Prior to trial, Seibert moved to suppress both her pre- and post-warning statements. The trial court suppressed only the pre-warning statements. She was convicted of second-degree murder.
  • The Missouri Court of Appeals affirmed her conviction.
  • The Missouri Supreme Court reversed. It found that the post-warning statement should also have been suppressed as a product of the invalid pre-warning statement.
  • The U.S. Supreme Court granted certiorari, to settle a conflict between the Circuit Courts of Appeal on the Miranda issue.

Issue and Holding:

Is it a violation of the Miranda rule to intentionally obtain a confession from a suspect before reading him/her Miranda warnings and then read the warnings, obtain of waiver of rights, and have the suspect repeat the confession in order to use the second confession in court? Yes.

The judgment of the Missouri Supreme Court is affirmed.

Rule of Law or Legal Principle Applied:

Intentionally giving Miranda warnings to a suspect after obtaining an unwarned confession does not comply with Miranda’s constitutional requirements, and the repeated confession after warnings were given must be suppressed.

A plurality of the Court noted that, typically, giving Miranda warnings before interrogation is a virtual ticket to admissibility. The “question-first” technique employed in this case, however, runs counter to the goals of the Miranda ruling. The object of the technique is to render the Miranda warnings ineffective by giving them after a suspect has already confessed. Here, the police purposefully used the question-first technique knowing the psychological power of someone who has already confessed once.

The facts of this case are distinguishable from Oregon v. Elstad, 470 U.S. 298 (1985), and therefore require a different outcome. In Elstad, the police officer mistakenly obtained inculpatory statements from the suspect at the suspect’s home at the time of the arrest, and then obtained a post-warning confession much later at the station house. By contrast, the officers in this case intentionally employed the question-first technique and conducted both the pre- and post-warning interrogations in the same setting with only a short break in between.

Concurring and Dissenting Opinions:

The plurality’s finding that the admissibility of the post-warning statement must be based the specific circumstances in the case is too broad. Rather, when police purposely employ the question-first technique, the post-warning statement must be suppressed unless the police take curative measures to ensure the suspect understood the Miranda rights.

Concurring Opinion (Breyer):

A simple rule should be used in question-first cases: Courts should exclude the post-warning statement as illegal fruits of the initial pre-warning interrogation, unless the failure to warn was in good faith.

The plurality was correct that (i) the post-warning statement should not be suppressed as poisonous fruits of the pre-warning interrogation, and (ii) the interrogating officer’s subjective intent should not be a focus of the Miranda analysis.

However, the plurality was incorrect in not following the central holding of Elstad — that courts should first determine whether the pre-warning statement was coerced, and then determine whether that coercion carried over into the post-warning statement. Further, Justice Kennedy’s proposed rule in his concurrence relies too heavily on the police officer’s subjective intent.

Significance:

The most important aspect of Missouri v. Seibert is that it struck down the police’s question-first technique, which was designed to get around Miranda while still appearing to adhere to it.


Today in Supreme Court History: April 19, 1920

The White Court (1920)

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the President of the Harlan Institute. Follow him @JoshMBlackman.

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Wiki provides a point on this case that I never thought of:

“Many legal analysts have argued that the decision [that treaties are the law of the land and apply to states], implies that Congress and the President can essentially amend the Constitution by means of treaties with other countries.”

I’m not sure about amending the Constitution but I could see a President and 2/3s of Senators creating a treaty which could have major implications, e.g. a treaty that bans executions, etc.

It should be noted that Missouri v. Holland was greatly narrowed by Reid v. Covert (1957), which ruled that a treaty could not be used to circumvent the Bill of Rights or to otherwise get around a clear provision of the Constitution. This means a treaty regarding the Constitution can be used only as a tiebreaker when the Constitution is unclear.

I think Missouri v. Holland was wrongly decided and should be overruled, but Reid v. Covert has greatly limited the damage the former decision can wrought.


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