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ceedings in regard to a bill of attainder against a defendant contravened an express article in the Treaty of Peace between the United States and Great Britain, a suggestion filed by the Attorney-General could not be entertained. In 1806 the point was raised in the Circuit Court of the United States for Pennsylvania and the paramountcy of the treaty of Great Britain over a provision in the Constitution of Pennsylvania sustained.?

$ 355. The rule in Massachusetts. There were several early cases in Massachusetts in which the rights of British subjects were sustained under the provisions of the treaty with Great Britain notwithstanding State laws which would in the absence of such provisions have defeated the claims.'

ica and Great Britain, for which peace, which is supreme. The fifth reason they could not sustain the article stipulates, that Congress suggestion filed by the Attorney should earnestly recommend to the General, and the defendant was ac- States, a revision of their confiscacordingly discharged.

tion laws, so as to render them 2 Gordon vs. Kerr, U. S. Cir. Ct. consistent with justice and equity, Pa. 1806; 1 Wash. C. C. 322; Fed. etc., and should also recommend to Cas. 5611, WASHINGTON, J.

them the restitution of confiscated In this case held in regard to the estates. This was not considered effect of the Great Britain treaty of as an idle provision, but was in1783 on the Constitution of the tended to be effectual; provided State of Pennsylvania, that “the the different States, or any of them, Constitution of the State must yield felt disposed to comply with the to the treaty of peace which is su- recommendation. If the States preme.” On p. 325, the court says: thought proper to restore, their

"This opinion, in the present power to do it grew out of this cause, has been combated by an treaty; and so far neutralized any argument not thought of, or used article of their Constitution, which in the former, which is, that if prohibited, in other cases, the exthere was in fact no misnomer, the ercise of such a right. The State attainder was complete, and the would no doubt feel itself comsale of Gordon's estate under it so pelled to make compensation to entirely valid, that the Legislature the purchasers, but their power to could not, in 1783, defeat it di- restore could not, I think, be quesrectly, or by the declaration of an tioned. If they could restore abopinion, which was solely of a ju- solutely, they could do any

other dicial nature. This objection, I act short of that, and tending to suppose, is founded upon the Con- better the situation of those whose stitution of the State, though it estates had been confiscated.” was not read, nor referred to. But $ 355. be this as it may, even that Consti 1 Commonwealth vs. Sheafe, Sup. tution must yield to the treaty of Ct. Mass. 1810, 6 Mass. 441.

$ 356. State laws sustained, as not conflicting with treaty stipulations, by State and Federal courts. While these cases show that State courts and Judges have felt the binding authority of the United States treaties and have acted in accordance with the mandatory provisions of Article VI of the Constitution in that respect, there are still numerous cases in which both State and Federal courts have refused to construe a treaty so that it renders State legislation inoperative.

The New York Court of Appeals held that a statute preventing intrusions on Indian lands within the State did not interfere with the obligations of the treaty of 1812 with the Seneca Indians, but that it was within the police power of the State, and that the State could not be barred from the proper exercise of police powers to maintain and to preserve the peace. The Supreme Court of the United States sustained the Court of Appeals in this case."

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In a suit brought to entitle the sold the same to the defendant in commonwealth to certain lands on fee, to secure the payment of a the ground that the purchaser was sum of money; and that the dean alien and unlawfully held them fendant lawfully entered for conunder the laws of the State, the dition broken. Under the article defendant claiming the property cited, his title cannot now be quespleaded the British treaty of 1794, tioned by the commonwealth." and the court expressed itself in Hutchinson vs. Brock, Sup. Ct. that regard as follows:

Mass. 1814, 11 Mass. 119, SEWALL, “By the ninth article of the Ch. J. treaty of 1794, it was agreed that $ 356. British subjects, who then held Cutler vs. Dibble, U. S. Sup. Ct. lands within the United States, 1858, 21 Howard, 366, GRIER, J., and American citizens, who then (affirming same case N. Y. Court held lands within the British do- of Appeals, 1857, 16 N. Y. Rep. 203, minions, should continue to hold BROWN, J.). them, according to the nature and The question involved in this actenure of their respective estates tion was whether a statute passed and titles therein; and might grant, by the New York Legislature in sell or devise, the same to whom 1821 respecting intrusions on Inthey pleased, in like manner as if dian lands was in violation of the they were natives. It is stated that constitution or the treaties between O'Neil was a British subject, and the United States and the Seneca held the premises in fee within the Indians. In sustaining the state meaning of that article, when the act the opinion says (page 370): treaty was made and ratified; and “ The only question which this that afterwards he granted and court can be called on to decide is,

It was also held that the State Dispensary Statute of South Carolina did not interfere with the rights of Italian citizens to freely carry on business in this country, under the stipulations in the treaty of 1871 with Italy? There are other cases

the peace.

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whether this law is in conflict with guage of the treaty on this point is
the Constitution of the United as follows:
States, or any treaty or act of Con "Art. 2. The citizens of each of
gress, and whether this proceeding | the high contracting parties shall
under it has deprived the relators have liberty to travel in the states
of property or rights secured to and territories of the other; to carry
them by any treaty or act of Con- on trade, wholesale and retail; to

hire and occupy houses and ware• The statute in question is a po- houses; to employ agents of their lice regulation for the protection chvice; and generally to do anyof the Indians from intrusion of thing incident to or necessary for the white people, and to preserve trade, upon the same terms as the

It is the dictate of a natives of the country, submitting prudent and just policy. Notwith-themselves to the laws there estabstanding the peculiar relations lished. which these Indian nations hold "Art. 3. The citizens of each of to the Government of the United the high contracting parties shall States, the State of New York had receive in the states and territories the power of a sovereign over their of the other the most constant propersons and property, so far as it tection and security for their perwas necessary to preserve the peace sons and property, and shall enjoy of the Commonwealth, and protect in this respect the same rights and these feeble and helpless bands privileges as are or shall be granted from imposition and intrusion. to the natives, on their submitting The power of a State to make such themselves to the conditions imregulations to preserve the peace posed upon the natives.' of the community is absolute, and “ Under these articles the com

been surrendered. plainants have the same rights as We are of the opinion, therefore, citizens of the United States. It that this statute and the proceed- would be absurd to say that they ing in this case are not in conflict had greater rights. We have seen with the treaty in question, or with that the right to sell intoxicating any act of Congress, or with the liquors is not a right inherent in a Constitution of the United States.” citizen, and is not one of the privi

2 Cantini vs. Tillman, U. S. Cir. leges of American citizenship; that Ct. So. Car. 1893, 54 Fed. Rep. 969, it is not within the protection of SIMONTON, J.

the Fourteenth Amendment; that The opinion says, on page 976: it is within the police power. The

“It is urged on behalf of these police power is a right reserved by complainants that they are Italian the states, and has not been delesubjects, and are protected by the gated to the general government. treaty stipulations between Italy In its lawful exercise, the states and the United States. The lan- are absolutely sovereign. Such ex

has ne

in which State laws have been upheld, including statutes establishing quarantine and health regulations, succession

ercise cannot be affected by any language of cl. 1, sec. 9, of the treaty stipulations. Salus Populi same article, where, in regard to Supema Lex.'” But see contra : the admission of persons of the

People vs. Compagnie Generale African race, the word “migration' Transatlantique, U. S. Sup. Ct. 1882, is applied to free persons, and 'im107 U. S. 59, MILLER, J.

portation' to slaves." This was one of the passenger 3 Compagnie Francaise, etc. vs. cases in which a law of the State of State Board of Health, Sup. Ct. New York imposed a tax on alien Louisiana, 1899, 51 La. Ann. 645, passengers coming into the New NICHOLS, Ch. J. York port. Reviewing the passen In this case the plaintiff attacked ger cases previously decided, the the constitutionality and validity court held the act unconstitutional of an act of the State of Louisiana for the reasons stated in the sylla- establishing a state board of health bus, as follows:

and authorizing regulations as to “1. The statute of New York of immigration. The question involvMay 31, 1881, imposing a tax on ing treaties as expressed in the every alien passenger who shall opinion, p. 597, is as follows: come by vessel from a foreign coun “ Appellants maintain that the try to the port of New York, and act of the general assembly is vioholding the vessel liable for the lative of the constitution of the tax, is a regulation of foreign com- United States and in contravention merce, and void. Henderson vs. of its treaties with France and Mayor of New York, 92 U. S. 259, Italy and its immigration laws. and Chy Lung vs. Freeman, id. 275, We are not of that opinion. It is cited, and the rulings therein made the right and duty of the different reaffirmed.

states to protect and preserve the “2. The statute is not relieved public health. This right is not from this constitutional objection held by the states by permission by declaring in its title that it is to of the federal government nor is raise money for the execution of its legitimate and proper exercise the inspection laws of the State, controlled by that government simwhich authorize passengers to be ply by reason of the existence of a inspected in order to determine who power in the latter to regulate are criminals, paupers, lunatics, commerce.' As a matter of course orphans, or infirm persons, without state legislation which would means or capacity to support them- cross the boundary line which selves and subject to become a pub- separates the state's police power lic charge, as such facts are not to of protecting the public health to be ascertained by inspection alone. I really interfere with and invade

“3. The words, 'inspection laws,' the right and power of the general imports,' and exports,' as used in government to regulate commerce, cl. 2, sec. 10, art. 1, of the Constitu- would be set aside; but it is not tion, have exclusive reference to every restriction upon commercial property.

operations, remotely and incident“4. This is apparent from the lally brought about by the passage

taxes," punishment of crimes, and proving title to grants in States carved out of ceded territory.

of state health laws, which can 4 Prevost V8. Greneaux, U. S. properly be designated as such in- Sup. Ct. 1856, 19 Howard 1, TAterference or invasion.” (Citing NEY, Ch. J. In re Rahrer, 140 U. S. 554).

In this case the plaintiff disMinn. & S. P. R. R. Co. vs. puted the right of the State of Milner, U. S. Cir. Ct. 1893, W. Louisiana to impose a tax of ten per D. Mich. 57 Fed. Rep. 276, PER cent on the value of property inCURIAM.

herited in that state by a person not Phila. Southern S. 8. Co. vs. domiciliated there and not being a Pennsylvania, U. S. Sup. Ct. 1887, citizen of any state or territory of 122 U. S. 326, BRADLEY, J. the United States, on the ground

Morgan S. s. Co. vs. Louisiana that it was in violation of and inBd. of Health, U. S. Sup. Ct. 1886, consistent with the treaty with 118 U. S. 455, MILLER, J.

France of 1853, the seventh article New York vs. Miln, U. S. Sup. of which provides for a reciprocal Ct. 1837, 11 Pet. 102. Right of right of inheritance of the citizens State to compel returns of alien of one country in the territory of passengers sustained. Smith vs. the other on the same terms as Turner, Norris vs. City of Boston, the citizens of that country it7 How. 283. Right of State to tax self. alien passengers held unconstitu The state courts had upheld the tional. Questions of treaty rights tax. In affirming this decision, the not involved.

Chief Justice of the Supreme Court In re Wong Yung Quy, U. S. Cir. says (at p. 7): Ct. Cal. 1880, 6 Sawyer, 237; 2 Fed. “The plaintiff in error, in his Rep. 624, SAWYER, J. (The Chi- petition to be recognized as heir, nese Dead Body Cuse.)

claimed title to all the separate United States vs. Quong Woo, property of Francois M. Prevost and U.S. Cir. Ct. Cal. 1882, 13 Fed. Rep. his widow, then in the hands of the 229, and extract therefrom under curator, and of all his portion of the $ 342, p. 28, an

community property, and of all the -But see also

fruits and revenues of his succession Yick Wo vs. Hopkins, U. S. Sup. from the day of the death of his Ct. 1886, 118 U. S. 356, MAT- brother. And, in adjudicating upon THEWS, J.

this claim, the court recognized the Chinese Laundry Case. A mu- rights of the appellant, as set forth nicipal ordinance of San Francisco, in his petition, and decided that he so framed that it discriminated became entitled to the property, as against Chinese laundries, was held heir, immediately upon the death under the Fourteenth Amendment of Fr. M. Prevost. to be unconstitutional and void, “Now, if the property vested in and persons arrested thereunder him at that time, it could vest only were discharged.

in the manner, upon the conditions 5 For note 5, see p. 55. 6 For note 6, see p. 56.

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