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rendered involving similar questions but this was the leading case and established the legal principles involved.2

vain to convince the Court that Congress had no power to make a treaty that could operate to annul a legislative act of any of the States, and thus destroy rights acquired under such an act. [Chase, Patterson, Wilson and Cushing, impressed by the uncommon magnitude of the subject, the bitter and exciting controversies it had provoked, and the far-reaching consequences by which their decision would be attended, although differing upon some matters of detail and in the mode of their reasoning, reached the conclusion that the Treaty of 1783 was the supreme law, equal in its effect to the Constitution itself, in overruling all State laws upon the subject, and the words that British creditors should meet with no lawful inpediment, were as strong as the wit of man could devise to avoid all effects of sequestration, confiscation, or any other obstacle thrown in the way by any law, particularly pointed against the recovery of such debts. The decision expanded from a statement of the contractual liability of an individual to an assertion that the treaty obligations of the nation were paramount to the laws of the individual States.] Happy conclusion! A contrary result would have blackened our character, at the very outset of our career as a nation, with the guilt of treachery to the terms of the treaty by which our Independence had been recognized, and would have prostrated the national sovereignty at the feet of Virginia."

2 Clarke vs. Harwood, U. S. Sup. Ct. 1797, 3 Dallas, 342, PER CURIAM. This case involved similar ques

tions as to those decided in Ware vs. Hylton and was decided in the. same manner and without opinion.

Society for the Propagation of the Gospel vs. Hartland, U. S. Cir. Ct. Vermont, 1814, 2 Paine, 536; Federal Cases 13, 155; THоmpson, J.

Same vs. Wheeler, U. S. Cir. Ct. New Hampshire, 1814, 2 Matthews, 105; Federal Cases 13, 156; STORY, J.

State of Vermont vs. Society for the Propagation of the Gospel, U. S. Cir. Ct. Vermont, 1826, Federal Cases 16, 919-20; THOMPSON, J.

Society &c. vs. Town of New Haven, United States Sup. Ct. 1823; 8 Wheat. 464; WASHINGTON, J.

These cases were all the result of State confiscation acts of property owned by the British Society; the Supreme Court held that the society had a right to hold the property, and that its rights became vested under the treaty of 1783, the provisions of which were superior to State laws; also that although these suits were not brought until after the War of 1812, the rights had become so vested under prior treaties that the Society had a right to recover and hold its property. It was also held that a State cannot pass laws confiscating franchises. There is quite a lengthy discussion in the opinion as to the effect of war upon treaties. In Society for the Propagation &c. vs. Pawlett, U. S. Sup. Ct. 1830, 4 Peters, 480, STORY, J., it was held, however, that the Society could not recover mesne profits during the period of confiscation.

Higginson vs. Mein, U. S. Sup. Ct. 1808, 4 Cranch, 415, MARSHALL, J. In a foreclosure case held that the

331. Fairfax vs. Hunter; Justice Story's opinion; State law and treaties, 1812.-The case of Fairfax's Devisee vs. Hunter's Lessee, an action in ejectment involving the construction of the treaties of 1783 and 1794 between Great Britain and the United States, was decided by the Supreme Court in 1812. In this case Justice Story, who delivered the opinion, declared that, as the possession and seizin of the property had continued up to and after 1794, the treaty of that year being the supreme law of the land, confirmed the title to him, his heirs and assigns, and protected them from forfeiture; he concludes that portion of his opinion which deals with this aspect of the case by saying:

“It was once in the power of the commonwealth of Virginia, by an inquest of office, or its equivalent, to have vested the estate completely in itself or its grantees. But it has not so done, and its own inchoate title (and of course the derivative title, if any, of its grantee) has by the operation of the treaty become ineffectual and void. It becomes unnecessary to consider the argument as to the effect of the death of one of the parties during the suit; because admitting it to be correctly applied in general, the treaty of 1794 completely avoids it."1

confiscation and sale of the prop-
erty under confiscation laws of the
State of Georgia, did not affect the
title as the sale did not take place
until after the treaty of peace, and
that the statute of limitations could
not be pleaded.

See also Hamilton vs. Eaton, U. S.
Cir. Ct. No. Car. 1792, 1 Hughes,
249; Fed. Cas. 5980, ELLSWORTH,
CH. J., SITGREAVES, J.

Hylton vs. Brown, U. S. Cir. Ct.
Pa. 1806, 1 Washington, 298, 343,
Fed. Cas. 6982, WASHINGTON, J.

Jones vs. Walker, U. S. Cir. Ct.
Va. 1803, 2 Paine, 688, JAY, CH. J.
These are but a few of the early
decisions on this subject; all the
cases cited under the subsequent
sections of this chapter should be
carefully examined.

§ 331.

1 Fairfax vs. Hunter, U. S. Sup. Ct. 1813, 7 Cranch, 603 (see p. 627), STORY, J., and see also Martin vs. Hunter, U. S. Sup. Ct. 1816, 1 Wheaton, 304, STORY, J.

1819, 4 Wheaton, 453, STORY, J. Orr vs. Hodgson, U. S. Sup. Ct.

Shanks vs. Dupont, U. S. Sup. Ct. 1830, 3 Peters, 242, STORY, J. The effect of the treaty of peace with Great Britain discussed and determined.

1806-7, 3 Cranch, 453, 4 Cranch, Hopkirk vs. Bell, U. S. Sup. Ct. 163. American debtors set up the Virginia State statute of limitations as a bar to recovery of debts of British creditors.

Held, that under the provisions of the treaties of 1783, 1794 and

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§ 332. Chirac vs. Chirac; Chief Justice Marshall's opinion, 1817.—During the existence of the French treaty of

1802, a State statute of limitations | tected and confirmed by the ninth was not a bar to recovery. article of the treaty of 1794.

Craig vs. Radford, U. S. Sup. Ct., 1818, 3 Wheaton, 594, WASHINGTON, J.

"These principles are decisive of the objection now under consideration. In that case, as in this, the legal title vested in the alien by purchase during the war, and was not devested by any act of Virginia, prior to the treaty of 1794, which

Held, that a British subject was protected in his title to lands in Virginia under the treaty of 1794 notwithstanding State laws and regulations as to aliens. Follow-rendered their estates absolute and ing Fairfax vs. Hunter, 7 Cranchi, indefeasible." 603, the opinion says on page 599:

Hughes vs. Edwards, U. S. Sup. Ct. 1824, 9 Wheaton, 489, WASHINGTON, J. A decree of foreclosure and sale affirmed by the Supreme Court notwithstanding the ob

"The last objection made to this decree is, that as a British subject, Wm. Sutherland could not take a legal title to this land under the State of Virginia, and, conse-jection that the holder of the quently, that the grant to him in 1788 was void, and was not protected by the treaty of 1794 between the United States and Great Britain.

"The decision of this court in the case of Fairfax's Devisee vs. Hunter's Lessee, (7 Cranch, 603), affords a full answer to this objection. In that case the will of Lord Fairfax took effect in the year 1781, during the war, and Denny Martin, the devisee under that will, was found to be a native born British subject who had never become a citizen of any of the United States, but had always resided in England.

"It was ruled in that case, 1st. That although the devisee was an alien enemy at the time of the testator's death, yet he took an estate in fee under the will, which could not, on the ground of alienage, be devested but by inquest of office, or by some legislative act equivalent thereto. 2d. That the defeasible title thus vested in the alien devisee was completely pro

mortgage was an alien, the court holding that the mortgagee was protected in his rights by the provisions of the treaty of 1794. The opinion says, at p. 496:

"2. The next objection relied upon is the alienage of the respondents. This objection would not, we think, avail the appellants, even if the object of this suit was the recovery of the land itself, since the remedies as well as the rights of these aliens, are completely protected by the treaty of 1794, which declares that British subjects, who now hold lands in the territories of the United States, etc., shall continue to hold them, according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please, in like manner as if they were natives; and that neither they, nor their heirs or assigns, shall, so far as respect the said lands, and the legal remedies incident thereto, be regarded as aliens.' In the cases

17781 a Frenchman died intestate, seized of certain real estate in Maryland, which he had acquired after naturalization; as his only heirs were French citizens the State of Maryland claimed that the lands were escheatable, and pursuant to some arrangement conveyed them to a natural son of the deceased who resided in this country. The legitimate heirs brought suit against the grantee of the State, who answered that they could not claim the property in view of the anti-alien laws, then existing in the State of Maryland. The State of Maryland had passed an act permitting the lands of a French subject to descend to his next of kin, provided they should be conveyed to a citizen of Maryland within ten years. The heirs of Chirac pleaded the treaty, claiming that they could inherit regardless of State laws and that notwithstanding the subsequent abrogation of the treaty they were not compelled to convey the property to a citizen within ten years. The Supreme Court sustained their contention; in affirming the judgment of the lower court below Chief Justice Marshall, referring to the effects of the treaty, said as follows:

of Harden vs. Fisher, (1 Wheat. Rep. 300,) and Orr vs. Hodgson, (4 Wheat. Rep. 453,) it was decided that, under this treaty, it was not necessary for the alien to show that he was in the actual possession or seisen of the land, at the time of the treaty; because the treaty applies to the title, whatever that may be, and gives it the same legal validity as if the parties were citizens."

Gordon vs. Kerr, U. S. Cir. Ct. Penna. 1806, 1 Washington, C. C. 322, Fed. Cas. 5611, WASHINGTON, J., and see extract under § 354 of this chapter, p. 47, post.

As to when stipulations in the British treaty did not affect State titles, see Blight vs. Rochester, U. S. Sup. Ct. 7 Wheaton, 535, MARSHALL, Ch. J., 1822.

Carver vs. Jackson, U. S. Sup. Ct. 1830, 4 Peters, 1, STORY, J.

Brown vs. Sprague, N. Y. Sup.

Ct. 1848, 5 Denio, 545, BEARDS-
LEY, Ch. J.

Fox vs. Southark, Sup. Ct. Mass.
1815, 12 Mass. 143, JACKSON, J.
§ 332.

1 Treaty of Amity and Commerce, between the Most Christian King and the thirteen United States of North America, concluded February 6, 1778, Ratified by the Continental Congress, May 4, 1778, U. S. Treaties and Conventions, edition 1889, p. 296.

The full text of Article XI (p. 297) is as follows: "The subjects, people and inhabitants of the said United States, or any one of them, shall not be reputed aubains in France, and consequently shall be exempted from the droit d'aubaine, or other similar duty, under what name soever. They may by testament, donation or otherwise, dispose of their goods, movable and immovable, in favor of such per

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"It is unnecessary to inquire into the consequences of this state of things, because we are all of opinion that the treaty between the United States and France, ratified in 1778, enabled the subjects of France to hold lands in the United States. That treaty declares that 'The subjects and inhabitants of the United States, or any one of them, shall not be reputed aubains (that is aliens) in France.' They may, by testament, donation, or otherwise, dispose of their goods, movable and immovable, in favor of such persons as to them shall seem good; and their heirs, subjects of the said United States, whether residing in France or elsewhere, may succeed them ab intestat, without being obliged to obtain letters of naturalization. The subjects of the most christian king shall enjoy, on their part, in all the dominions of the said states, an entire and perfect reciprocity relative to the stipulations contained in the present article.'

2

shall remain in all their force aud vigor, and the United States on their part, or any of them, shall be at liberty to enact such laws relative to that matter as to them shall seem proper."

2 Chirac vs. Chirac, U. S. Sup. Ct. 1817, 2 Wheaton, 259, MARSHALL, CH. J. The extracts quoted from the opinion will be found at p. 270 and p. 277. See also

Dawsons' Lessee vs. Godfrey, U. S. Sup. Ct. 1808, 4 Cranch, 321, JOHNSON, J.

sons as to them shall seem good, | France against emigrations which and their heirs, subjects of the said United States, residing whether in France or elsewhere, may succeed them ab intestat, without being obliged to obtain letters of naturalization, and without having the effect of this concession contested or impeded under pretexts of any rights or prerogative of provinces, cities or private persons; and the said heirs, whether such by particular title, or ab intestat, shall be exempt from all duty called droit detraction, or other duty of the same kind, saving nevertheless the local rights or duties as much and as long as similar ones are not established by the United States, or any of them. The subjects of the most Christian King shall enjoy on their part, in all the dominions of the said States, an entire and perfect reciprocity relative to the stipulations contained in the present article, but it is at the same time agreed that its contents shall not affect the laws made, or that may be made hereafter in

In this case it was held, as stated in the syllabus, that a person born in England before the year 1775 and who always resided there, and was never in the United States, was an alien, and could not in the year 1793 take lands in Maryland by descent from a citizen of the United States.

Owings vs. Norwood's Lessee, U. S. Sup. Ct. 1809, 5 Cranch, 344, MARSHALL, Ch. J.

Smith vs. State of Maryland, U. S. Sup. Ct. 1810, 6 Cranch, 286, WASHINGTON, J.

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