"Upon every principle of fair construction, this article gave to the subjects of France a right to purchase and hold lands in the United States.

"It is unnecessary to inquire into the effect of this treaty under the confederation, because, before John Baptiste Chirac emigrated to the United States, the confederation had yielded to our present constitution, and this treaty had become the supreme law of the land.

"The repeal of this treaty could not affect the real estate acquired by John Baptiste Chirac, because he was then a naturalized citizen, conformably to the act of Congress; and no longer required the protection given by treaty."

As to the effect of the original Chirac dying after the treaty had expired, the Chief Justice, in his opinion, says:

"If, then, the treaty between the United States and France still continued in force, the defendant would certainly be entitled to recover the land for which this suit is instituted. But the treaty is, by an article which has been added to it, limited to eight years, which have long since expired. How does this circumstance affect the case?

"The treaty was framed with a view to its being perpetual. Consequently, its language is adapted to the state of things

Jackson vs. Clark, U. S. Sup. Ct. | The Chief Justice disposed of that 1818, 3 Wheaton, 1, MARSHALL, objection on p. 189 as follows: Ch. J.

Morris vs. United States, U. S. Sup. Ct. 1899, 174 U. S, 196, SHIRAS, J., as to laws of Maryland as affected by treaty.

Dunlop vs. Alexander, U. S. Cir. Ct., D. C. 1808, 1 Cranch C. C. 498. Carneal vs. Banks, U. S. Sup. Ct. 1825, 10 Wheaton, 181, MARSHALL, CH. J.

In this case specific performance of contract was asked and a number of objections to title were raised, amongst them that in the plaintiff's claim of title there was a French citizen who could not, under the alienage laws of Kentucky where the land was situated, inherit and transmit real property.

"The alleged alienage of Lacassaign constitutes no objection. Had the fact been proved, this Court decided, in the case of Chirac vs. Chirac, (reported in 2 Wheat. Rep. 259), that the treaty of 1778, between the United States and France, secures to the citizens and subjects of either power the privilege of holding lands in the territory of the other; and the omission to record the deed in time, may involve the title in difficulty, but does not annul it. That circumstance might oppose considerable obstacles to a decree for a specific performance, if sought by Carneal's heirs, but does not justify a decree to set aside the contract."

contemplated by the parties, and no provision could be made for the event of its expiring within a certain number of years. The court must decide on the effect of this added article in the case which has occurred. It will be admitted, that a right once vested does not require, for its preservation, the continued existence of the power by which it was acquired. If a treaty, or any other law, has performed its office by giving a right, the expiration of the treaty or law cannot extinguish that right. Let us, then, inquire, whether this temporary treaty gave rights which existed only for eight years, or gave rights during eight years which survived it.

"The terms of this instrument leave no doubt on this subject. Its whole effect is immediate. The instant the descent is cast, the right of the party becomes as complete as it can afterwards be made. The French subject who acquired lands by descent the day before its expiration, has precisely the same rights under it as he who acquired them the day after its formation. He is seized of the same estate, and has precisely the same power during life to dispose of it. This limitation of the compact between the two nations, would act upon, and change all its stipulations, if it could affect this case. But the court is of opinion, that the treaty had its full effect the instant a right was acquired under it; that it had nothing further to perform; and that its expiration or continuance afterwards was unimportant."

§ 333. The Pollard Case; Justice Baldwin's opinion; 1840.-In Lessee of Pollard's Heirs vs. Gaius Kibbé, decided by the Supreme Court in January, 1840, the question involved was the validity of a grant under the treaty with France of 1802, and the treaty with Spain in 1819.1

In a long opinion, Mr. Justice Baldwin says, in regard to the supremacy of treaties, after reviewing the decisions of the Supreme Court in this respect:

"The Constitution of the United States declares a treaty to be the supreme law of the land, of consequence, its obli

§ 333.

1 Pollard's Lessee vs. Kibbé, U. S. Sup.Ct. 1840, 14 Peters, 353, THомPSON, J. See also Pollard's Lessee vs. Files, U. S. Supreme Ct. 1844,

2 Howard, 591, CATRON, J.; and
Pollard's Lessee vs. Hagan, U. S.
Sup. Ct. 1845, 3 Howard, 212, Mc-
KINLEY, J.

gation on the Courts of the United States must be admitted. It is certainly true, that the execution of a contract between nations, is to be demanded from, and generally superintended by the executive of each nation. But where a treaty is the law of the land, and, as such, affects the rights of parties litigant in Court, that treaty as much binds their rights, and is as much to be regarded by the Court, as an act of Congress; and on this principle it was held, that a stipulation in a treaty that property (shall be) restored, operated as an immediate restoration, and annulled a judgment of condemnation previously made. The fourth article of the treaty of peace with Great Britain, in 1783, stipulated that creditors shall meet with no lawful impediment to the recovery of debts. The sixth article stipulated, that there (shall be) no future confiscations, and that persons in confinement (shall be) immediately set at liberty, and prosecutions commenced be discontinued. The ninth article of the treaty of 1794 stipulated, that British subjects, etc., (shall continue to hold lands), etc. In Ware vs. Hylton, it was held, that the treaty of peace repealed and nullified all state laws, by its own operation, revived the debt, removed all lawful impediments, and was a supreme law, which overrules all state laws on the subject, to all intents and purposes; and is of equal force and effect as the Constitution itself. In Hopkirk vs. Bell, the treaty was held to repeal the Virginia statute of limita tions. In Hunter vs. Martin, the treaty of 1794 was helu to be the supreme law of the land; that it completely protected and confirmed the title of Fairfax, even admitting that the treaty of peace had left him wholly unprovided for; that as a public law, it was a part of every case before the Court, and so completely governed it, that in a case where a treaty was ratified after the rendition of a judgment in the Circuit Court, which was impeachable on no other ground than the effect of a treaty, the judgment was reversed on that ground.

"The treaty of 1778, with France, stipulated that the subjects of France shall not be reputed aliens; and it was held,

2 Hopkirk vs. Bell, U. S. Sup. Ct. 1806-7, 3 Cranch, 453, and 4 Cranch, 163.

3 Hunter vs. Martin, same as Martin vs. Hunter, U. S. Sup. Ct. 1816, 1 Wheaton, 304, STORY, J.

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."

§ 334. Hauenstein vs. Lynham; Justice Swayne's opinion; 1879.-The decisions of the Supreme Court were again reviewed in the case of Hauenstein 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

4 This extract from opinion in Pollard vs. Kibbe will be found at pp. 412-415, 14 Peters, U. S. Rep. § 334.

other charges than those to which the inhabitants of the country wherein the said property is situated shall be liable to pay in a sim1 Convention 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 have had time to take measures for estate and personal property, which possessing himself of the same. is as follows:

"ARTICLE V.

"The foregoing provisions shall 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
or ab intestato, or their successors,
being citizens of the other party,
shall succeed to the said property,
or inherit it, and they may take
possession thereof, either by them-
selves or by others acting for them;
they may dispose of the same as
they may think proper, paying no

within the territories of one of the
contracting parties should fall to
a citizen of the other party, who,
on account of his being an alien,
could not be permitted to hold
such property in the State or in
the Canton in which it may be
situated, there shall be accorded
to the said heir, or other successor,

創

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 Constitutiqn.' . . . 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 su preme 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.” 2

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 Canton will permit to sell such property; he shall be at liberty at all times to withdraw and export the proceeds thereof without difficulty, and without paying to the Government any other charges than those which in a similar case would be paid by an inhabitant of the

country in which the real estate may be situated."

2 Hauenstein vs. Lynham, U. S. Sup. Ct. 1879, 100 U. S. 483, SWAYNE, J., and see pp. 488-489 as to treaty with Switzerland; see also Jost vs. Jost, Sup. Ct. Dist. Col. 1882, 12 Mackey, 487, Cox, J.