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that it gave them the right to purchase and hold lands in the United States, and in that respect put them on the precise footing as if they had become citizens. . . All treaties, compacts, and articles of agreement in the nature of treaties to which the United States are parties, have ever been held to be the supreme law of the land, executing themselves by their own fiat, having the same effect as an act of Congress, and of equal force with the Constitution.” 1

$ 334. Hauenstein vs. Lynham ; Justice Swayne's opinion; 1879.—The decisions of the Supreme Court were again reviewed in the case of Ilauenstein vs. Lynham, which brought before the court in 1879 the construction of our then existing treaty with Switzerland.' Mr. Justice Swayne delivered the opinion of the court, and answered the question whether

1

4 This extract from opinion in other charges than those to which Pollard vs. Kibbė will be found at the inhabitants of the country pp. 412-415, 14 Peters, U. S. Rep. wherein the said property is situ$ 334.

ated shall be liable to pay in a simConvention of Friendship, Com- ilar case. In the absence of such merce and Extradition between heir, heirs, or other successors, the the United States and the Swiss same care shall be taken by the auConfederation, concluded Novem- thorities for the preservation of ber 25, 1850, ratifications exchanged the property that would be taken November 8, 1855. U. S. Treaties, for the preservation of the propedition 1889, p. 1072. See Arti- erty of a native of the same country, cle V, p. 1074, for reciprocal pro- until the lawful proprietor shall visions, as to disposition of real bave had time to take measures for estate and personal property, which possessing himself of the same. is as follows:

“The foregoing provisions shall " ARTICLE V.

be applicable to real estate situated ". The citizens of each one of the within the States of the American contracting parties shall have Union, or within the Cantons of power to dispose of their personal the Swiss Confederation, in which property within the jurisdiction of foreigners shall be entitled to hold the other, by sale, testament, dona- or inherit real estate. tion, or in any other manner; and “But in case real estate situated their heirs, whether by testament within the territories of one of the or ab intestato, or their successors, contracting parties should fall to being citizens of the other party, a citizen of the other party, who, shall succeed to the said property, on account of his being an alien, or inherit it, and they may take could not be permitted to hold possession thereof, either by them- such property in the State or in selves or by others acting for them; the Canton in which it may be they may dispose of the same as situated, there shall be accorded they may think proper, paying nol to the said heir, or other successor,

or not a State law must give way to a treaty which was the direct point at issue in the case, as follows:

“The efficacy of the treaty is declared and guaranteed by the Constitution of the United States. That instrument took effect on the fourth day of March, 1789. In 1796, but a few years later, this Court said: 'If doubts could exist before the adoption of the present national government, they must be entirely removed by the sixth article of the Constitution.'

There can be no limitation on the power of the people of the United States. By their authority the State constitutions were made, and by their authority the Constitution of the United States was established ; and they had the power to change or abolish the State Constitutions or to make them yield to the general government and treaties made by their authority. 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. If the Constitution of a State (which is the fundamental law of the State and paramount to its legislature) must give way to a treaty and fall before it, can it be questioned whether the less power, and act of the State legislature, must not be prostrate before it? It is the declared will of the people of the United States that every treaty made by the authority of the United States shall be superior to the Constitution and the laws of any individual State, and their will alone is to decide. If a law of a State contrary to a treaty is not void, but voidable only, by a repeal or nullification of a State legislature, this certain consequence follows,—that the will of a small part of the United States may control or defeat the will of the whole." ?

A large part of Mr. Justice Swayne's opinion in this respect is quoted from the opinion delivered by Mr. Justice

such term as the laws of State or country in which the real estate Canton will permit to sell such may be situated.” property; he shall be at liberty at 2 Hauenstein vs. Lynham, U. S. all times to withdraw and export Sup. Ct. 1879, 100 U. S. 483, the proceeds thereof without dif- SWAYNE, J., and see pp. 488–489 ficulty, and without paying to the as to treaty with Switzerland; see Government any other charges than also Jost vs. Jost, Sup. Ct. Dist. Col, those which in a similar case would 1882, 12 Mackey, 487, Cox, J. be paid by an inhabitant of the

Chase in Ware vs. Ilylton ; 3 in regard to the authority of that decision, wbich had been delivered more than eighty years previously, be says: “It shows the views of a powerful legal mind at that early period, when the debates in the convention which framed the Constitution must have been fresh in the memory of the leading jurists of the country.”

In regard to later decisions of the Court, Justice Swayne says: “In Chirac vs. Chirac," it was held by this Court 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. The State law was hardly adverted to; and seems not to have been a factor of importance in this view of the case. The same doctrine was reaffirmed touching this treaty in Carneal vs. Banks, and with respect to the British treaty of 1794, in Hughes vs. Edwards. A treaty stipulation may be effectual to protect the land of an alien from forfeiture by escheat under the laws of a State. By the British treaty of 1794, all impediment of alienage was absolutely leveled with the ground, despite the laws of the State. It is the direct constitutional question in its fullest condition. The Supreme Court held that the stipulation was within the constitutional powers of the Union.'

“Mr. Calhoun, after laying down certain exceptions and qualifications which do not affect this case, says: Within these limits all questions which may arise between us and other powers, be the subject-matter what it may, fall within the treaty-making power and may be adjusted by it. If the national government has not the power to do what is done by such treaties, it cannot be done at all, for the States are expressly forbidden to “enter into any treaty, alliance, or confederation. It must always be borne in mind that the Constitution, laws, and treaties of the United States are as much a part of the law of every State as its own local laws

8 See $$ 324 et seq. of this chap- 6 Hughes vs. Edwards, U. S. Sup. ter, ante.

Ct. 1824, 9 Wheaton, 489, WASH4 See 332, pp. 14, et seq., ante. INGTON, J., and see p. 14, ante. 5 See note under $ 332, pp. 14,

7 The italics are the author's. ante.

et seq.,

and Constitution. This is a fundamental principle in our system of complex national polity.”

$ 335. Geoffroy vs. Riggs; Justice Field's opinion 1889 ; he great extent of the treaty-making power.-In 1889 the question of the treaty-making power of the United States was again before the court in the case of Geoffroy vs. Riggs ; 1 Mr. Justice Field reviewed the cases already cited and held that the seventh article of the treaty with France of 1800,2 by its terms suspended the provisions of the common law of Maryland, and also of the statutes of that State of 1780 and 1791, so far as they prevented citizens of France from taking property within the United States, either real or personal, by inheritance from citizens of the United States.

In the course of his opinion he says in regard to the extent of the power: “That the treaty power of the United States

$ 335.

persons as they shall think proper. 1 Geoffroy vs. Riggs, U. S. Sup. The citizens and inhabitants of Ct. 1890, 133 U. S. 258, FIELD), J., either of the two countries who and see further reference to this shall be heirs of goods, movable under $ 425, post.

or immovable, in the other, shall 2 Convention of Peace, Commerce be able to succeed ab intestato, and Navigation between the Pre- without being obliged to obtain mier Consul of the French Repub- letters of naturalization, and withlic in the name of the people of out having the effect of this proviFrance and the President of the sion contested or iinpeded, under United States of America. Con- any pretext whatever; and the said cluded September 30, 1800. Ratifi- heirs, whether such by particular cations exchanged July 31, 1801. title, or ab intestato, shall be exProclaimed December 21, 1801. U. empt from any duty whatever in S. Treaties and Conventions, edi- both countries. It is agreed that tion 1889, p. 322. See also p. 324. this article shall in no manner der

ogate from the laws which either “ ARTICLE VII.

State may now have in force, or “The citizens and inhabitants of hereafter may enact, to prevent the United States shall be at lib- emigration; and also that in case erty to dispose by testament, dona- the laws of either of the two States tion, or otherwise, of their goods, should restrain strangers from the movable and immovable, holden exercise of the rights of property in the territory of the French Re- with respect to real estate, such public in Europe, and the citizens real estate may be sold, or otherof the French Republic shall have wise disposed of, to citizens or inthe same liberty with regard to habitants of the country where it goods, movable and immovable, may be, and the other nation shall holden in the territory of the be at liberty to enact similar laws. United States, in favor of such

extends to all proper subjects of negotiation between our government and the governments of other nations is clear.

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 authorize 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. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiations with a foreign county.”.

$ 336. The Chinese influx; legal questions and treaty rights involved.—The occasions, however, for rendering the most far-reaching decisions in regard to State laws and Federal treaties arose from the attempts made by the Pacific States to prevent, by means of State legislation, the immigration of the Chinese into those States, or, after their arrival, to so discriminate against them in their lives and occupation that they would either return to China, or leave the States which were unfriendly to them.

Our treaties with China contain reciprocal provisions for the right of immigration, travel and daily pursuit of business and labor of American citizens in China and of Chinese subjects in the United States; it must be admitted, therefore, that until the abrogation of those treaty provisions, or the enactment of Congressional legislation superseding them, Chinamen had as much right to come to the United States and engage in labor and business, as our citizens had, and still have, to go to China and carry on their trade and business in that country.

8 See $$ 426, 474, post, for views of | vs. Bidwell (Insular Cases), 182 Chancellor Kent in regard to the U. S. 244; referred to in § 475, post. extent of treaty-making power as 4 Extract is at pp. 266-267, 133 to alienation of territory belonging U. S. Rep. to a State. See also views of Jus- $ 336. tice WHITE expressed in Downes 1 This chapter relates only to the

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