by the courts of the United States; it may be said that the natural trend of those courts is to expand the Federal power so as to prefer treaty stipulations to State statutes; it is not necessary, however, to rely exclusively upon utterances of the Federal Judiciary in this respect; there are numerous instances in which the State courts have recognized the supremacy of treaty stipulations over statutes of their own States. A few instances in which the highest courts of States have recognized this supremacy will be given and an examination. of the cases referred to in the notes will show that the State courts have not only recognized the force of the second clause of Article VI, of the Constitution, but have also recognized the advantages which have accrued to the States as the result of vesting the treaty-making power exclusively in the Central Government, as well as the fact that they have appreciated the necessity of giving the Federal Government the most complete power in order that it can best subserve the interests of the States. § 349. The rule in New York.-Alexander Hamilton was the first to recognize the sanctity of Federal Treaties, and their supremacy to State laws. Stanch patriot as he was, he maintained even at the threatened loss of his popularity, the rights of certain British land owners in New York City In an action involving treaty, may, under some circumstances rights of Indians on White Squaw be made responsible for the payIsland in the Penobscot River, ment of their debts notwithstandMaine, it was claimed that provi- ing such stipulations. sions in the treaties debarred the legislature from including any of the Penobscot Islands above Old Town within any incorporated town; it was held that this could not be sustained. Lowry vs. Weaver, U. S. Cir. Ct. LER, CH. J. Ind. 1846, 4 McLean, 82. Held, that Indians living in a State and doing business as merchants are responsible by the laws of the State for the payment of their debts, notwithstanding treaty reservations, and that lands reserved to them under a treaty Seneca Nation vs. Christie, N. Y. Ct. App. 1891, 126 N. Y. 122, ANDREWS, J. Affirming same case, 49 Hun, 524, BRADLEY, J. Writ of error to the Supreme Court dismissed, 1896, 162 U. S. 283, FUL A full history is given in this action of the relations of the Seneca Indians with New York, Massachusetts and the United States. The principles laid down in Johnson vs. McIntosh as to title followed, and the relations of the colonies and States with the Indians also discussed. under the treaty, against persons who claimed possession of houses in that city under State statutes.1 Judge Denio in the New York Court of Appeals 2 upheld the treaty-making power of the United States; the action involved the construction of a treaty with Indians, but he stated that the rule was similar to that which applied to all other treaties entered into by the United States, to-wit: that it became "a parcel of the paramount law and must prevail over all State laws." Continuing he showed that the guarantees in the treaty were not limited to actions by the United States Government but extended equally to the acts or statutes of all the States and of citizens of the Union. "This results," says the opinion, "from the nature of the treaty-making power and from the paramount authority which the Constitution attributes to federal treaties when it declares them to be the supreme law of the land. A treaty concluded by the President and Senate binds the nation in the aggregate and all its subordinate authorities and its citizens as individuals, to the observance of the stipulations contained in it. The principle has been asserted and established by repeated decisions of the Supreme Court of the United States. This (New York) State was, therefore, precluded from passing any laws which should disappoint or frustrate the guarantees afforded to the Seneca Nations by the treaties to which I have referred. Any act of the Legislature, the execution of which would dispossess the Indians of the reservations or any part of them, or which should materially disturb their occupancy, would, therefore, be illegal.” Truscott vs. Hurlburt, L. & C. Co., | claimants affected thereby, and his U. S. Cir. Ct. App. 9th Circuit, contention that the treaty protected 1896, 44 U. S. App. 248, Ross, J. the rights of his clients, see McMaster's History of the People of the United States, vol. I, chap. II, pp. 125, et seq.; see also pamphlet of H. B. Dawson on same subject referred to by McMaster. Love vs. Pamplin, U. S. Cir. 1 Elizabeth Rutgers vs. Joshua Waddington, Mayor's Court of the City of New York, August 7, 1784. For a full account of the passage of the New York Trespass Act and 2 Fellows vs. Denniston, N. Y. Ct. of Appeals, 1861, 23 N. Y. Rep. 420, DENIO, J. 8 Citing Ware vs. Hylton, 3 Dallas, Alexander Hamilton's appearance 199, Worcester vs. State of Georgia, and argument on behalf of British 6 Peters, 515. The rule had already been laid down by Judge Van Ness in 1809 that land in New York vested in alien subjects of Great Britain under the provisions of the treaty notwithstanding the anti-alien laws of the State." In People vs. Warren, the defendant had been convicted of employing Italians on city work in Buffalo under a statute of the State which made it a crime for any one contracting with a municipal corporation to employ aliens as laborers upon the work done under the contract. The court held that the act was unconstitutional as to the State and Federal Constitutions and also that it was void because it was repugnant to the treaty between the United States and the King of Italy of 1871, which provides in Article III, in substance, that resident Italians in the United States shall enjoy the same rights and privileges in respect to their persons and property as are secured to our United States citizens. Other decisions of New York courts are cited in the notes to this section." 3 Jackson vs. Wright, Sup. Ct. N. Y. 1809, VAN NESS, J., 4 Johnson, 75. People vs. Warren, Sup. Ct. Buffalo, N. Y. 1895, 13 Misc. Rep. 615. These provisions of the treaty are quoted in the notes to § 356, of this chapter, post. 6 Jackson vs. Decker, N. Y. Sup. Ct. 1814, 11 Johns. N. Y. 418, SPENCER, J. Jackson vs. Lunn, N. Y. Sup. Ct. 1802, KENT, J. (afterwards Chancellor), 3 Johnson's Cases, 109. Orser vs. Hoag, N. Y. Sup. Ct. 1842, NELSON, CH. J., 3 Hill, 79. Watson vs. Donnelly, N. Y. Sup. Ct. 1859, ALLEN, J., 28 Barb. 653. This was a question involving the right of a British subject to devise lands and of the devisees to dispose of the same. The opinion goes at length into all of the cases in the Supreme Court and of the effect of a statute of the State of New York passed in 1825 as to the rights of aliens. In closing the opinion the court says, pp. 660–661: "The Court of Appeals held, that land conveyed to an alien pursuant to the provisions of that act might continue to be held by alien heirs and alien devisees of the grantee, until by inheritance, devise or grant the title came to a citizen. The plaintiff, an alien, claimed under a will of an alien, and his title was held valid; and the word assigns,' in the act, was the only word under which a devisee could claim. The opinion of Judge Ruggles is entirely applicable to, and decisive of, the question made under this branch of the case, as to the right of Mrs. Lynch to take as devisee and in turn to devise to her daughter. This being the effect of the treaty of 1794, and the right of alien owners to devise to aliens being guaranteed by § 350. The rule in Illinois. In 1897 the Supreme Court of Illinois held that the State act disqualifying aliens must give way if it conflicts with any existing treaty between the United States and Sweden and that the disqualifications imposed by the State act were removed by Article VI of the treaty of 1783, which, although it had terminated by its own limitation, had been revived by Article XVII of the Gen. Term, 1885, 37 Hun, 476, Buffalo R. & P. Co. vs. Lavery, See also cases in New York Surrogate Courts as to right of consul to administer on estates of decedents under treaty stipulations referred to under § 448 of chapter XV; see pp. 333 and 348, post. $ 350. 1 Adams vs. Akerlund, Sup. Ct. Ill. 1897, MAGRUDER, J., 168 Ill. Rep. 632. it, the act of 1825 could not divest them of that right, or deprive the alien devisee of the right to take and hold the estate. The treaty is the paramount law of the land; and even if it were abrogated by the original contracting parties, the vested rights of citizens, under it, would remain. (( (Const. of U. S. art. 6, s. 2. Lessees of Gordon vs. Kerr, 1 Wash. C. C. R. 322; Ware vs. Hylton, 3 Dall. 236; Dem vs. Fisher, 1 Paine's C. C. R. 54. 8 Wheat. 494.) It is not necessary then to consider the effect of the act of 1825 upon the devise of Dom- 2 Treaty of Amity and Cominick Lynch, or determine whether merce, concluded April 3, 1783. it destroys the common-law rule U. S. Treaties and Conventions, by which an alien purchaser or edition 1889, p. 1042; Article VI devisee could hold the estate pur-(pp. 1043-4) is as follows: chased or devised, as against all "The subjects of the contracting but the government; by which he parties in the respective States could take the estate, although not may freely dispose of their goods for his own use but the use of the and effects, either by testament, state. (Jackson vs. Beach, 1 John. donation, or otherwise, in favour Cas. 389. Jackson vs. Lunn, 3 id. of such persons as they think 109. People vs. Conklin, 2 Hill, 67.) proper; and their heirs, in whatever The motion for a new trial must place they shall reside, shall rebe denied." ceive the succession even ab intestato, either in person or by their attorney, without having occasion This case is not reported in full, to take out letters of naturalizabut it appears that the rights of tion. These inheritances, as well aliens under the treaty of 1845 with as the capitals and effects which the Grand Duchy of Hesse provided the subjects of the two parties, in for the reciprocal rights as to in-changing their dwelling, shall be heritance of citizens of one party desirous of removing from the place within the territory of the other of their abode, shall be exempted party, were sustained. from all duty called droit de dé Bollermann vs. Blake, N. Y. Ct. App. 1883, 94 N. Y. 624, EARL, J. Kull vs. Kull, N. Y. Sup. Ct. traction' on the part of the Gov treaty of 1827.3 Since that time there have been other decisions to the effect that treaty stipulations are superior to State statutes affecting descent and disposal of property. ernment of the two States, respec- | the conventions concluded by tively. But it is at the same time either party with other nations, agreed that nothing contained in during the interval between the exthis article shall in any manner piration of the said treaty of one derogate from the ordinances pub- thousand seven hundred eightylished in Sweden against emigra- three and the revival of said artitions, or which may hereafter be cles by the treaty of commerce and published, which shall remain in navigation conclued at Stockholm full force and vigor. The United by the present high contracting States, on their part, or any of parties, on the fourth of September, them, shall be at liberty to make, one thousand eight hundred and respecting this matter, such laws sixteen." as they think proper. 4 Schultze vs. Schultze, Sup. Ct. 8 Treaty of Commerce and Navi-Ill. 1893, 144 Ill. Rep. 290, MAgation, concluded July 4, 1827. GRUDER, J. The point decided in U. S. Treaties and Conventions, this case is stated in the syllabus edition 1889, p. 1058; Article XVII (§ 6, p. 291) as follows: (p. 1064) is as follows: the resident heir or of the heirs capable of taking under the State law, and the right of the State or county to take the land by escheat in default of heirs capable of holding the same, are also suspended during the term of three years named in the treaty." "The effect of the treaty of the "The second, fifth, sixth, seventh, United States with Bremen is to eighth, ninth, tenth, eleventh, suspend, during the period of three twelfth, thirteenth, fourteenth, fif- years, the operation of the alien teenth, sixteenth, seventeenth, law of this State, which makes noneighteenth, nineteenth, twenty-resident aliens incapable of taking first, twenty-second, twenty-third, | lands by descent; and the right of and twenty-fifth articles of the treaty of amity and commerce concluded at Paris on the third of April, one thousand seven hundred eighty-three, by the Plenipotentiaries of the United States of America, and of His Majesty the King of Sweden, together with the first, second, fourth, and fifth separate articles, signed on the same day by the same Plenipotentiaries, are revived, and made applicable to all the countries under the dominion of the present high contracting parties, and shall have the same force and value as if they were inserted in the context of the present treaty; it being understood that the stipulations contained in the articles above cited shall always be con- to dispose of their personal goods sidered as in no manner affecting within the jurisdiction of the other, The treaty provision referred to is Article VII of the Convention of Friendship, Commerce, and Navigation with the Free Hanseatic Republics of Lübeck, Bremen and Hamburg, concluded December 20, 1827, U. S. Treaties and Conventions, edition 1889, p. 533. Article VII (p. 535) is as follows: "The citizens of each of the contracting parties shall have power |