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that the disabilities are removed, although it has been held that limited fees allowed by State laws, under certain conditions, pass into absolute fees in favor of foreigners with whose government treaty stipulations exist.

A recent case in Nebraska, a Federal court decision however, establishes a similar rule for that State as to the supremacy of treaties made by the Federal Government over State statutes relating to aliens and real estate.2

§352. The rule in Tennessee.-The Supreme Court of Tennessee decided in 1826 in favor of the supremacy of treaties of the United States over all State laws; Judge Catron, who afterwards became one of the Justices of the Supreme Court was one of the justices deciding the case.' His colleague discussed the treaty-making power, and the effect of treaties upon State statutes, in the following words, which show that he fully appreciated the necessity for Federal action in regard to all our foreign relations: "Shall it be allowed the State Legislatures, by their acts, to oppose and prevent the executing of a treaty in which the whole Union is interested? Must the whole Union, because of the misconduct of one state be forced into a war? The treaty also should be a law, operating immediately and directly upon the people. If the State Legislatures must be applied to, to pass laws for the execution of treaties, which are in any respect burthen

matter we do not determine,-we are of the opinion that it does not apply to lands. 'Goods: A valuable possession or piece of property; especially, and almost universally, in the plural, goods, wares, commodities, chattels.' Effects: Goods, movables, personal estate.' Webster. 'Goods and effects' have never been held to include real estate. The demurrer was properly sustained, and the decree is therefore affirmed." 2 Bahuaud vs. Bize, U. S. Cir. Ct. | French citizens or subjects are conNebraska, 1901, 105 Fed. Rep. 485 cerned. The decision rests largely MUNGER, J.; held, that as resident aliens are permitted to hold real estate in Nebraska that, under the provisions of the treaty of 1853 between the United States and France, non-resident aliens, citizens France, can acquire and hold land, and that the state statute prohibiting non-resident aliens from acquiring real estate by inheritance or otherwise is inoperative so far as

of

upon Boyd vs. Nebraska, 143 U. S.
135, and Geofroy vs. Riggs, 133 U. S.
258. The Act of the Legislature
of Nebraska was passed March 16,
1889 (Laws, 1889, p. 483).
§ 352.

1 Cornet vs. Winton, Sup. Ct. Tenn. 1826, 2 Yerger (Tenn.) 143, (see p. 165) CATRON and HAYWOOD, JJ.

some, they will never do it. Congress applied to the State Legislatures to pass laws for the execution of the Fourth Article of the Treaty of Peace, from 1783 to 1787, and no law was ever made for the purpose. The British nation complained, and was nearly driven into a war, because of the inexecution of the treaty; and finally, the United States would have been involved in war, had it not been for the timely formation of the Federal Constitution, and the declaration contained therein, that treaties should be the supreme law, above all laws and obstructions which could stand in the way. In the United States, the unsullied honor of the nation, and the complete performance of all that it stipulates, is one of the great objects which the constitution proposes

to effect."

§ 353. The rule in Kentucky and Michigan.—In Kentucky, it was decided in 1862, that the law of the State would have to give way as soon as a treaty took effect.1 In Michigan the Supreme Court of the State held that "when a treaty has been made by the proper Federal authorities, and ratified, it becomes the law of the land, and the courts have no power to question or in any manner look into the powers or rights of the nation or tribe with whom it is made. The action of the treaty-making power is conclusive upon such inquiry. And when territorial rights are, by treaty, recognized as having existed in one tribe, we are bound to regard it." 2

§ 354. The rule in Pennsylvania.-The rule was adopted in Pennsylvania as early as 1788, which was prior to the Constitution going into effect.1 It was held that as pro

§ 353.

1 Yeaker's Heirs VS. Yeaker's Heirs, Ct. of Appeals, Ky., 1862, 4 Metcalfe (Ky.), 33, STITES, Ch. J.

2 Maiden vs. Ingersoll, Sup. Ct. Mich. 1859, 6 Mich. 373, CAMPBELL, J.

$ 354.

1 Respublica vs. Gordon, Sup. Ct. Penna., 1778, 1 Dallas, 252, McKEAN, Ch. J.

The defendant was included in an act of proclamation issued dur

ing the war, and not appearing, was attainted with treason, and his estates confiscated; after peace was declared he returned to Pennsylvania; his estates had never been taken possession of under the confiscation; he was arrested and gave bail; on the return the CHIEF JUSTICE decided that any proceedings against him "would contravene the express articles in the treaty of peace and amity, entered into between the United States of Amer

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.2

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.1

ica and Great Britain, for which | peace, which is supreme. The fifth reason they could not sustain the suggestion filed by the Attorney General, and the defendant was accordingly discharged.

2 Gordon vs. Kerr, U. S. Cir. Ct. Pa. 1806; 1 Wash. C. C. 322; Fed. Cas. 5611, WASHINGTON, J.

If the States

article stipulates, that Congress
should earnestly recommend to the
States, a revision of their confisca-
tion laws, so as to render them
consistent with justice and equity,
etc., and should also recommend to
them the restitution of confiscated
estates. This was not considered
as an idle provision, but was in-
tended to be effectual; provided
the different States, or any of them,
felt disposed to comply with the
recommendation.
thought proper to restore, their
power to do it grew out of this
treaty; and so far neutralized any
article of their Constitution, which
prohibited, in other cases, the ex-
ercise of such a right. The State
would no doubt feel itself com-
pelled to make compensation to
the purchasers, but their power to
restore could not, I think, be ques-
tioned. If they could restore ab-
solutely, they could do any other
act short of that, and tending to
better the situation of those whose
estates had been confiscated."
§ 355.

In this case held in regard to the effect of the Great Britain treaty of 1783 on the Constitution of the State of Pennsylvania, that "the Constitution of the State must yield to the treaty of peace which is supreme." On p. 325, the court says: "This opinion, in the present cause, has been combated by an argument not thought of, or used in the former, which is, that if there was in fact no misnomer, the attainder was complete, and the sale of Gordon's estate under it so entirely valid, that the Legislature could not, in 1783, defeat it directly, or by the declaration of an opinion, which was solely of a judicial nature. This objection, I suppose, is founded upon the Constitution of the State, though it was not read, nor referred to. But 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.1

In a suit brought to entitle the commonwealth to certain lands on the ground that the purchaser was an alien and unlawfully held them under the laws of the State, the defendant claiming the property pleaded the British treaty of 1794, and the court expressed itself in that regard as follows:

"By the ninth article of the treaty of 1794, it was agreed that British subjects, who then held lands within the United States, and American citizens, who then held lands within the British dominions, should continue to hold them, according to the nature and tenure of their respective estates and titles therein; and might grant, sell or devise, the same to whom they pleased, in like manner as if they were natives. It is stated that O'Neil was a British subject, and held the premises in fee within the meaning of that article, when the treaty was made and ratified; and that afterwards he granted and

sold the same to the defendant in fee, to secure the payment of a sum of money; and that the defendant lawfully entered for condition broken. Under the article cited, his title cannot now be questioned by the commonwealth."

Hutchinson vs. Brock, Sup. Ct. Mass. 1814, 11 Mass. 119, SEWALL, Ch. J.

§ 356.

1 Cutler vs. Dibble, U. S. Sup. Ct. 1858, 21 Howard, 366, GRIER, J., (affirming same case N. Y. Court of Appeals, 1857, 16 N. Y. Rep. 203, BROWN, J.).

The question involved in this action was whether a statute passed by the New York Legislature in 1821 respecting intrusions on Indian lands was in violation of the constitution or the treaties between the United States and the Seneca Indians. In sustaining the state act the opinion says (page 370):

"The only question which this 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

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 Congress, and whether this proceeding under it has deprived the relators of property or rights secured to them by any treaty or act of Congress.

lished.

"Art. 2. The citizens of each of the high contracting parties shall have liberty to travel in the states and territories of the other; to carry 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 choice; 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 the peace. 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 which these Indian nations hold to the Government of the United States, the State of New York had the power of a sovereign over their persons and property, so far as it was necessary to preserve the peace of the Commonwealth, and protect these feeble and helpless bands from imposition and intrusion. The power of a State to make such regulations to preserve the peace of the community is absolute, and has never been surrendered. We are of the opinion, therefore, that this statute and the proceeding in this case are not in conflict with the treaty in question, or with any act of Congress, or with the Constitution of the United States."

2 Cantini vs. Tillman, U. S. Cir. Ct. So. Car. 1893, 54 Fed. Rep. 969, SIMONTON, J.

The opinion says, on page 976: "It is urged on behalf of these complainants that they are Italian subjects, and are protected by the treaty stipulations between Italy and the United States. The lan

"Art. 3. The citizens of each of the high contracting parties shall receive in the states and territories of the other the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives.'

"Under these articles the complainants have the same rights as citizens of the United States. It would be absurd to say that they had greater rights. We have seen that the right to sell intoxicating liquors is not a right inherent in a citizen, and is not one of the privileges of American citizenship; that it is not within the protection of the Fourteenth Amendment; that it is within the police power. The police power is a right reserved by the states, and has not been delegated to the general government. In its lawful exercise, the states are absolutely sovereign. Such ex

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